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.

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.

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.

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.

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.

ULYSSESS SMITH, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-2514

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 Polk County; Roger Allan Alcott, Judge.

DISPOSITION: Reversed and remanded with instructions.

JUDGES: VILLANTI, Judge. NORTHCUTT and KELLY, JJ., Concur.

OPINION BY: VILLANTI

OPINION: VILLANTI, Judge.

Ulyssess Smith appeals the postconviction court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the postconviction court’s summary denial of claim one and affirm, without comment, the postconviction court’s ruling on claims two and three.

In claim one, Smith alleged his attempted manslaughter conviction was erroneously listed and scored as a level 6 offense when it should have been listed and scored as a level 5 offense. The postconviction court denied this claim, finding that Smith’s attempted manslaughter conviction, a violation of sections 782.07(1) and 777.04(4)(a), Florida Statutes (1995), was properly listed and scored as a [*2] level six offense.

The State now concedes that Smith’s attempted manslaughter conviction should have been listed and scored as a level 5 offense. See Cruz v. State, 789 So. 2d 441 (Fla. 2d DCA 2001). However, the State argues that Smith is not entitled to be resentenced because the sentence imposed would have been a legal sentence with the corrected scoresheet calculating the attempted manslaughter conviction at level 5.

“This district currently applies the ‘would have’ standard to determine if postconviction relief is available under rule 3.800(a).” Wilson v. State, 913 So. 2d 1277, 1279 (Fla. 2d DCA 2005); see also Mathews v. State, 907 So. 2d 1291 (Fla. 2d DCA 2005); Wilson v. State, 877 So. 2d 27 (Fla. 2d DCA 2004). “Under this standard, the trial court must grant postconviction relief unless the record establishes that the sentence ‘would have’ been the same under a corrected scoresheet.” Wilson, 913 So. 2d at 1279; see also Mathews, 907 So. 2d at 1291-92. Based on the limited record before this court, there is no record evidence establishing that the same sentence “would have” [*3] been imposed under the corrected scoresheet.

Accordingly, we reverse the postconviction court’s denial of claim one and remand for the postconviction court to calculate a correct scoresheet and then to determine what, if any, relief is appropriate as a result of that scoresheet.

Reversed and remanded with instructions.

NORTHCUTT and KELLY, JJ., Concur.

RICHARD McDUFFIE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-2996

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 Manatee County; Edward Nicholas, Judge.

DISPOSITION: Reversed and remanded with instructions.

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

OPINION BY: WHATLEY

OPINION: WHATLEY, Judge.

Richard McDuffie appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the postconviction court’s summary denial of McDuffie’s claim that his forty-five-year prison sentence for second-degree murder with a firearm was illegal and remand for further proceedings.

On January 11, 1995, in circuit court case 93-887, McDuffie pleaded no contest pursuant to a stipulated upward departure negotiated plea agreement to the lesser offense of second-degree murder with a firearm, a violation of sections 782.04(2) and 775.087, Florida Statutes (1991). On May 11, 1995, the trial court sentenced McDuffie to forty-five years’ prison. This court [*2] affirmed the judgment and sentence. See McDuffie v. State, 681 So. 2d 285 (Fla. 2d DCA 1996) (table decision).

In considering the rule 3.800(a) claim, the postconviction court found that McDuffie pleaded no contest to second-degree murder, a violation of section 782.04, Florida Statutes (1991), a felony of the first-degree punishable by imprisonment for a term of years not exceeding life or as provided in section 775.082. Therefore, the postconviction court found that McDuffie’s sole reliance on section 775.082 was misplaced as section 782.04 specifically provided that second-degree murder is punishable by imprisonment for a term of years not exceeding life.

However, McDuffie pleaded nolo contendere to second-degree murder with a firearm, a violation of sections 782.04(2) and 775.087, Florida Statutes (1991). Pursuant to section 782.04(2), second-degree murder is “a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.” Section 775.087, Florida Statutes (1991), states: [*3]

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:

(a) In the case of a felony of the first degree, to a life felony.

Therefore, McDuffie’s second-degree murder conviction required reclassification to a life felony due to McDuffie’s use of a firearm.

Section 775.082(3)(a), Florida Statutes (1991), states that a person who has been convicted of a life felony committed on or after October 1, 1983, may be punished by “a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.” Therefore, McDuffie’s forty-five-year prison sentence exceeds the forty-year statutory maximum under section 775.082(3)(a). “A trial court cannot impose an illegal sentence even pursuant to a plea bargain.” Ferguson v. State, 804 So. 2d 411, 412 (Fla. 4th DCA 2001). [*4] Consequently, McDuffie’s forty-five-year prison sentence is illegal and must be reversed. See Ramos v. State, 931 So. 2d 1023 (Fla. 3d DCA 2006) (holding that fifty-year sentence for life felony was illegal where section 775.082(3)(a), Florida Statutes (1989), proscribed punishment by life imprisonment or for a term not exceeding forty years); Miranda v. State, 832 So. 2d 937, 941 (Fla. 3d DCA 2002) (holding that “for a 1993 crime date, the offense of second-degree murder with a weapon is classified as a life felony” with a maximum penalty of “life imprisonment or a term of years not exceeding forty” and, therefore, the fifty-year-prison sentence exceeds the legal maximum); Ferguson, 804 So. 2d at 412 (reversing forty-five-year sentence for second-degree murder, a first-degree felony that became a life felony due to the possession of a firearm, which could be punished by a term not exceeding forty years); Wright v. State, 600 So. 2d 11,12 (Fla. 4th DCA 1992) (reversing sixty-year sentences for two first-degree felonies that became life felonies due to the possession of a firearm, which could [*5] be punished by a term not exceeding forty years).

McDuffie’s forty-five-year prison sentence for second-degree murder with a firearm is illegal. See Ferguson, 804 So. 2d at 412. However, McDuffie’s forty-five-year prison sentence was the result of a stipulated upward departure pursuant to a negotiated plea agreement. Therefore, McDuffie may be resentenced within the statutory maximum of forty years only with the State’s agreement. See Lang v. State, 931 So. 2d 922, 922 (Fla. 2d DCA 2005). If the State does not agree to such a sentence, McDuffie must be allowed to withdraw his plea. See id.

The court notes that the trial court also failed to impose the three-year mandatory minimum pursuant to section 775.087(2)(a)(1) when McDuffie was originally sentenced. Whether such a mandatory minimum is required to be imposed on remand is contingent on how the State elects to proceed. Therefore, on remand, the postconviction court shall impose any applicable mandatory minimum pursuant to section 775.087.

Reversed and remanded with instructions.

SALCINES and VILLANTI, JJ., Concur.

DAVID MOORE, Petitioner, v. STATE OF FLORIDA, Respondent.

CASE NO. 1D05-4351

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: Petition for Belated Appeal — Original Jurisdiction.

COUNSEL: David Moore, Pro se, Petitioner.

Charlie Crist, Attorney General, and Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for Respondent.

JUDGES: BENTON, VAN NORTWICK, and PADOVANO, JJ., CONCUR.

OPINION: PER CURIAM.

The petition for belated appeal is granted. David Moore is hereby afforded a belated appeal of an order denying motion to correct illegal sentence in case number 99-2085G in the circuit court for Bay County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R. App. P. 9.141(c)(5)(D).

BENTON, VAN NORTWICK, and PADOVANO, JJ., CONCUR.

R.R.G., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-449

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 Hillsborough County; D. Michelle Sisco, Judge.

COUNSEL: James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

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

OPINION BY: ALTENBERND

OPINION: ALTENBERND, Judge.

R.R.G. appeals the trial court’s order withholding adjudication of delinquency and placing her on probation for the offense of petit theft. R.R.G. argues that the case should be retried because the trial judge failed to act as a neutral and impartial arbiter when she lost her patience and assumed the role of a prosecuting attorney.

We have carefully reviewed the record in this case. At the inception, it was a rather typical trial of several juveniles for shoplifting at a large store. R.R.G.’s mother and father were present during the proceedings, as were the parents of another juvenile. The State first presented the testimony of the store’s loss prevention officer, who provided sufficient [*2] evidence to prove the State’s case. To clarify the precise identity of each juvenile, the State called R.R.G.’s father. He was very uncooperative during the examination by the assistant state attorney. Once the trial judge sensed that the father was being disingenuous, she became actively involved in asking questions.

Although the trial judge asked the witness questions merely to obtain honest answers that had not been forthcoming to the prosecutor’s questions, by the end of the questioning, the trial court had ejected both of R.R.G.’s parents from the courtroom. At the conclusion of closing arguments, the trial court also engaged one of the other parents in an unsworn, nontestimonial “cross-examination.” Overall, the transcript of this hearing suggests that, to some degree, the trial court lowered itself to the level of the conduct of the participants, rather than convincing them to raise their conduct to the level of the court.

Although the issue is very close, we conclude that the trial court did not cross the line of judicial neutrality during the evidentiary stage of this proceeding and that any error in the later stages of this hearing was harmless in reference to the disposition [*3] in this case. See Williams v. State, 901 So. 2d 357 (Fla. 2d DCA 2005). The judge’s actions, however, may not have been harmless to the perception of justice in the eyes of those who witnessed the events.

In reversing a judgment in a death penalty case, the supreme court once eloquently stated:

We canonize the courthouse as the temple of justice. There is no more appropriate justification for this than the fact that it is the only place we know where the rich and poor, the good and the vicious, the rake and the rascal-in fact every category of social rectitude and social delinquent-may enter its portal with the assurance that they may controvert their differences in calm and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner. Such a pattern for administering justice inspires confidence. . . . The judge must above all be neutral and his neutrality should be of the tough variety that will not bend or break under stress. He may ask questions to clarify the issues but he should not lean to the prosecution or defense lest it appear that his neutrality is departing from center. The judge’s neutrality should [*4] be such that even the defendant will feel that his trial was fair.

Williams v. State, 143 So. 2d 484, 488 (Fla. 1962).

This, of course, is not a capital case; it is a juvenile proceeding resulting in a withhold of adjudication. It is, however, still a courtroom where the “rich and poor, the good and the vicious,” and the “social delinquent” may enter with assurance of a calm and dispassionate environment in which an impartial judge adjudicates their rights in a fair and just manner.

Typically, this court has the great luxury of reviewing appeals in a very dispassionate manner. We are rarely confronted with the harsher realities of life that are experienced daily in juvenile courts throughout this district. We can, however, fully imagine the frustrations that arise in an urban juvenile court handling a crowded docket. In spite of these pressures-or perhaps because of them-the judges in those courts need to strive constantly to develop and hone the skills essential to maintain decorum and the unquestioned air of fairness.

While we do not reverse the orders on appeal in this case, we would encourage the trial judge to read and review the transcript in this [*5] case in the same dispassionate manner that an appellate court reads a transcript. Given the objectivity that comes with the passage of time, we believe that such a review might prove useful to a capable judge striving to develop and hone these essential courtroom skills.

Affirmed.

SALCINES and KELLY, JJ., Concur.

JOSEPH B. FERGUSON, Petitioner, v. STATE OF FLORIDA, Respondent.

CASE NO. 1D06-3587

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.

COUNSEL: Joseph B. Ferguson, Pro se, Petitioner.

Charlie Crist, Attorney General, and Betty Cheramie, Assistant Attorney General, Tallahassee, for Respondent.

JUDGES: BROWNING, C.J., DAVIS, and LEWIS, JJ., CONCUR.

OPINION: Petition for Writ of Mandamus — Original Jurisdiction.

PER CURIAM.

In light of the circuit court’s recent actions, we determine that the granting of mandamus relief is not warranted. See Munn v. Fla. Parole Comm’n, 807 So. 2d 733 (Fla. 1st DCA 2002). However, we strongly encourage the circuit court to consider and dispose of the pending motion promptly.

BROWNING, C.J., DAVIS, and LEWIS, JJ., CONCUR.