Florida Criminal Law Opinions

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.

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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.

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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.

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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.

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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.

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