Florida Criminal Law Opinions

ANDREAS OBOJES, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-2323

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 29, 2006, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY: An appeal from the Circuit Court for Duval County. Henry E. Davis, Judge.

COUNSEL: Andreas Obojes, Pro se, Appellant.

Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES: ERVIN, DAVIS, and BENTON, JJ., CONCUR.

OPINION: PER CURIAM.

Andreas Obojes appeals an order of the circuit court denying his petition for writ of habeas corpus, which we affirm. Obojes was convicted in 1990 of three counts of armed sexual battery, a life felony, and was given three concurrent departure sentences of 40 years in prison on September 22, 1990. See State v. Obojes, 604 So. 2d 474 (Fla. 1992). He has filed numerous motions to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), contending that under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), a jury was required to find the facts of “premeditation” and “professional manner” used to justify his departure sentence, which [*2] he believed exceeded the statutory maximum. The circuit court has denied each motion on the merits, and this court has affirmed each order on appeal in cases 1D00-4653, Obojes v. State, 789So. 2d 992 (Fla. 1st DCA 2001); 1D01-3768, Obojes v. State, 810 So. 2d 926 (Fla. 1st DCA 2002); 1D02-4144, Obojes v. State, 837 So. 2d 970 (Fla. 1st DCA 2003); and 1D05-1868, Obojes v. State, 911 So. 2d 104 (Fla. 1st DCA 2005).

We directed Obojes to show cause, pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999), why he should not be barred from further challenging his conviction unless he were represented by counsel, and in his response, Obojes agreed to allow this court to appoint an attorney for him to argue this issue, and then proceeded to reiterate the Apprendi /Blakely argument. He did not provide this court with a reason to permit him to continue raising this issue.

We conclude from our review that Obojes’s repetitive challenges to his sentence are an abuse of the legal process that has had and will have an adverse effect upon this court’s limited resources if we were to allow additional challenges. Accordingly, [*3] we prohibit Obojes from filing any further pro se pleadings in this court challenging his conviction in Duval County Circuit Court Case Number 16-1989-CF-6576, regardless of the remedy sought or theory raised, unless he is represented by a member in good standing of The Florida Bar. We further direct the clerk of this court not to accept any additional pro se filings in this case from Obojes.

AFFIRMED.

ERVIN, DAVIS, and BENTON, JJ., CONCUR.

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ROBERT V. THIBAULT, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-6202

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 29, 2006, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY: Appeal from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

COUNSEL: James Marion Moorman, Public Defender, and Bruno F. DeZayas, Special Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.

JUDGES: VILLANTI, Judge. SALCINES and STRINGER, JJ., Concur.

OPINION BY: VILLANTI

OPINION: VILLANTI, Judge.

Robert V. Thibault appeals his convictions and sentences for burglary and grand theft. Thibault contends that the trial court erred: (1) in denying his motion to suppress an in-court identification, (2) in imposing investigative costs without considering Thibault’s ability to pay, and (3) in imposing attorney’s fees without informing Thibault of his right to contest the amount. We affirm, without comment, on the first ground. However, we reverse and remand Thibault’s sentences with instructions to strike the $ 232 in investigatory costs and consider Thibault’s financial resources before reimposing them and to strike the $ 800 in attorney’s fees, as the trial court previously ordered. [*2]

Thibault properly filed a motion to correct sentencing error, asserting that the trial court improperly imposed $ 232 in investigative costs when it failed to consider Thibault’s financial resources. In denying Thibault’s motion, the trial court erroneously relied on Cook v. State, 896 So. 2d 870 (Fla. 2d DCA 2005), and concluded that an inquiry into a defendant’s financial resources is discretionary with the court. In Cook, this court held that imposing a public defender fee without considering the defendant’s financial resources is proper because section 938.29, Florida Statutes (2003), does not require consideration of a defendant’s ability to pay. In contrast, section 938.27(5), Florida Statutes (2002) (the version in effect on March 30, 2003, the date of Thibault’s offenses), expressly requires the court to consider “the financial resources of the defendant” in imposing investigative costs. Because the trial court did not inquire into Thibault’s financial resources, it erred in imposing the investigative costs. Notably, the State rightfully concedes the error. On remand, the trial court may reimpose the investigatory [*3] costs after it considers Thibault’s financial resources. See Smith v. State, 714 So. 2d 1152, 1153 (Fla. 2d DCA 1998).

In Thibault’s motion to correct sentencing error, he also asserted that the trial court improperly imposed $ 800 in attorney’s fees when it failed to inform Thibault of his right to contest the amount. The trial court granted this portion of Thibault’s motion, which the State did not appeal. However, Thibault notes, and the State concedes, that the judgment and sentence was never corrected to strike the $ 800 in attorney’s fees.

Affirmed in part; reversed and remanded with instructions to: (1) strike the $ 232 in investigative costs and consider Thibault’s financial resources before reimposing these costs and (2) strike the $ 800 in attorney’s fees, in fulfillment of the trial court’s previous order.

SALCINES and STRINGER, JJ., Concur.

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JOHN CLARK DANIELS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-1236

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 29, 2006, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY: Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Joseph A. Bulone, Judge.

DISPOSITION: Reversed and remanded with instructions.

JUDGES: KELLY, Judge. SALCINES and LaROSE, JJ., Concur.

OPINION BY: KELLY

OPINION: KELLY, Judge.

John Clark Daniels appeals the summary denial of his motion to define and clarify sentence filed under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand with instructions.

Daniels alleges that he is entitled to 347 days’ jail credit in circuit court cases 01-04946-CFAWS, 02-02300-CFAWS, 02-03807-CFAWS, and 02-03748-CFAWS, thereby making the sentences coterminous. The postconviction court denied the motion on the merits. We reverse the postconviction court’s order because Daniels’ motion is facially insufficient. See Fla. R. Crim. P. 3.800(a); see also Stathas v. State, 852 So. 2d 881, 882 (Fla. 2d DCA 2003) (holding that petitioner’s claim that he was entitled to jail time credit was facially insufficient [*2] where petitioner failed to allege that court records demonstrated his entitlement to additional jail credit).

Even if Daniels’ motion was facially sufficient, the postconviction court failed to attach any record documents to support its findings. “The burden is on the postconviction court to attach portions of the record refuting the rule 3.800(a) claim.” Spears v. State, 920 So. 2d 187, 187 (Fla. 2d DCA 2006). Therefore, we reverse the order denying the rule 3.800(a) motion and remand for entry of an order of dismissal without prejudice to any right Daniels may have to file a facially sufficient rule 3.800(a) motion or a timely facially sufficient rule 3.850 motion. Such motion shall not be considered successive.

Reversed and remanded with instructions.

SALCINES and LaROSE, JJ., Concur.

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CUAUHTHEMOZ M. GAMEZ, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-2879

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 29, 2006, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY: Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Charlotte County; J. Frank Porter, Judge.

DISPOSITION: Reversed and remanded with directions.

JUDGES: WALLACE, Judge. SALCINES and VILLANTI, JJ., Concur.

OPINION BY: WALLACE

OPINION: WALLACE, Judge.

Cuauhthemoz M. Gamez appeals the summary denial of his motion to correct illegal sentence filed in accordance with Florida Rule of Criminal Procedure 3.800(a). We reverse the postconviction court’s order that summarily denied Mr. Gamez’s claim that his 28.5-year sentence for attempted robbery with a firearm is illegal, and we remand for further proceedings.

On October 7, 1991, Mr. Gamez pleaded no contest to attempted first-degree murder (count one) and attempted robbery with a firearm (count two). The trial court sentenced him to 22 years’ prison to be followed by 5 years’ probation on count one and to 3 years’ prison to be followed by 10 years’ probation on count two. After he was released from prison, Mr. Gamez began serving the probationary portions of his sentences. [*2] On June 28, 2005, Mr. Gamez admitted to violating the conditions of his probation. The trial court revoked his probation and sentenced him to 28.5 years’ prison on counts one and two. The trial court designated the sentences to run concurrently.

Mr. Gamez’s 28.5-year prison sentence for attempted robbery with a firearm (count two) is illegal because the offense of attempted robbery with a firearm is a second-degree felony punishable by a maximum of 15 years in prison. See §§ 812.13(2)(a), 777.04(4)(b), and 775.082(3)(c), Fla. Stat. (1989); see also Hamilton v. State, 890 So. 2d 1250 (Fla. 4th DCA 2005); Bailey v. State, 877 So. 2d 836 (Fla. 4th DCA 2004). In its order denying Mr. Gamez’s motion, the postconviction court relied on the judgment entered on June 28, 2005. This judgment described the offense for which Mr. Gamez was convicted on count two as armed robbery, a violation of section 812.13(2)(a), a first-degree felony. However, the judgment is incorrect in this respect. Mr. Gamez originally pleaded no contest to attempted robbery with a firearm, a violation of [*3] sections 812.13(2)(a) and 777.04(4)(b), Florida Statutes (1989), a second-degree felony. For this reason, the June 28, 2005, judgment should be corrected to reflect the crime for which Mr. Gamez was actually convicted on count two.

On this appeal, the State commendably concedes error and agrees that Mr. Gamez is entitled to be resentenced on count two. However, because the 28.5-year prison sentence was the result of a negotiated plea agreement with the State, Mr. Gamez may be resentenced within the 15-year statutory maximum only if the State agrees. See Lang v. State, 931 So. 2d 922, 922 (Fla. 2d DCA 2005). If the State does not agree to such a sentence, then Mr. Gamez must be allowed to withdraw his admission to the violation of probation. See id.

Finally, the judgments entered on October 7, 1991, and June 28, 2005, contain errors. On remand, the postconviction court shall correct the October 7, 1991, and the June 28, 2005, judgments to reflect that the conviction on count one was for attempted first-degree murder, a violation of sections 782.04(1) and 777.04(4)(a), a first-degree felony, and that the conviction [*4] on count two was for attempted robbery with a firearm, a violation of sections 812.13(2)(a) and 777.04(4)(b), a second-degree felony.

Reversed and remanded with directions.

SALCINES and VILLANTI, JJ., Concur.

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VETRONY LIVINGSTON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-2137

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 29, 2006, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY: Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

DISPOSITION: Reversed and remanded with instructions.

JUDGES: VILLANTI, Judge. SALCINES and DAVIS, JJ., Concur.

OPINION BY: VILLANTI

OPINION: VILLANTI, Judge.

Vetrony Livingston appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand with instructions.

Livingston claims that he does not qualify as a prison releasee reoffender because he did not commit his new offense within three years of being released from a state correctional facility. See § 775.082(9)(a)(1), Fla. Stat. (2001). However, Livingston’s motion is facially insufficient because it did not affirmatively allege that the court records demonstrate on their face an entitlement to relief. See Fla. R. Crim. P. 3.800(a); see also Tyson v. State, 852 So. 2d 428, 429 (Fla. 2d DCA 2003). [*2]

It appears that the postconviction court relied on exhibits prepared by the Department of Corrections after Livingston was sentenced as a basis for summarily denying the motion on its merits. It is unclear whether the exhibits were part of the trial court record in the proceeding in which the challenged sentence was imposed. Nevertheless, because Livingston’s motion is facially insufficient, the postconviction court should have dismissed the motion, rather than deny it on its merits. Therefore, we reverse the order denying the rule 3.800(a) motion and remand for entry of an order of dismissal, which shall be without prejudice to any right Livingston may have to file a facially sufficient motion pursuant to rule 3.800(a) or a timely and facially sufficient motion pursuant to rule 3.850.

Reversed and remanded with instructions.

SALCINES and DAVIS, JJ., Concur.

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