Florida Criminal Law Opinions

FRANKLIN MONFISTON, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-380

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

PRIOR HISTORY: [*1] Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 02-11951 CF10A.

COUNSEL: Franklin Monfiston, Belle Glade, Pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: Gunther, Stone and Shahood, JJ., concur.

OPINION: ON MOTION FOR REHEARING

Per Curiam.

Monfiston seeks post-conviction relief under rule 3.850 based on his counsel’s failure to assert a claim that Miranda n1 warnings were insufficient for the reason we addressed in Roberts v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004). It appears from the officer’s testimony in this case that Miranda warnings were read from the same sheriff’s card that we found wanting in Roberts.

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n1 Miranda v. Arizona, 354 U.S. 436 (1966).

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This court has previously recognized that such a claim may be raised under rule 3.850. [*2] E.g., Stancle v. State, 917 So. 2d 911 (Fla. 4th DCA 2005). As in Stancle, we find Monfiston’s claim of ineffective assistance of counsel to be sufficient.

The state, in its brief, has proffered the portion of the record that would have been attached to the summary order from the record. We deem the generalized objections raised by counsel in that record to be insufficient to support a summary disposition.

We have considered, and reject, the state’s argument that Monfiston has waived the right to assert the Roberts issue by taking the position, regarding the motion to suppress, that no Miranda warnings were read at all.

Therefore, we reverse the trial court’s summary denial and remand for an evidentiary hearing or discharge.

Gunther, Stone and Shahood, JJ., concur.

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DERYCK L. KATWAROO, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-4152

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; William J. Berger, Judge; L.T. Case No. 05-8283 CFA02.

COUNSEL: Deryck L. Katwaroo, Punta Gorda, Pro se.

No appearance required for appellee.

JUDGES: Warner, Gross and Taylor, JJ., concur.

OPINION: Per Curiam.

Affirmed. The trial court denied appellant’s motion for reduction, modification or correction of sentence as legally insufficient. We agree, as it did not allege the type of error that can be corrected pursuant to rule 3.800. Instead, appellant challenges the conditions of his confinement, which is a claim properly addressed by administrative proceedings and then, after exhaustion of administrative remedies, see Taylor v. Perrin, 654 So. 2d 1019 (Fla. 1st DCA 1995), by petition for writ of habeas corpus which must be brought in the jurisdiction in which he is being held. See Harvard v. Singletary, 733 So. 2d 1020 (Fla. 1999).

Warner, Gross and Taylor, JJ., concur.

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JASON THOMPSON, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-4196

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Dan L. Vaughn, Judge; L.T. Case No. 311996CF000967A.

COUNSEL: Jason Thompson, Indiantown, Pro se.

No appearance required for appellee.

JUDGES: Warner, Shahood and Taylor, JJ., concur.

OPINION: Per Curiam.

The appellant, pursuant to rule 3.800(a), challenges the sentence imposed after the lower court revoked his youthful offender probation. The judge determined that Thompson committed the crime of possession of cannabis, which the judge found to be a substantial violation of probation, and sentenced Thompson to an eleven-year prison term. Thompson claims the judge violated the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), because the judge increased his sentence beyond the six-year limit for violations of youthful offender probation, as described in section 958.14, Florida Statutes, by making findings of fact as to the nature of the violation. We disagree and affirm.

Thompson’s argument that his sentence is [*2] illegal misconstrues both section 958.14 and Apprendi. Section 958.14 restricts a court to a sentence of six years in prison “for a technical or nonsubstantive violation” of the youthful offender probation. However, where the violation is a substantive violation, the punishment cannot be “longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated.” § 958.14, Fla. Stat. In essence, there is a six-year cap for technical violations of a youthful offender probation sanction, but no such cap if the defendant committed a substantive violation.

In this case, the lower court concluded Thompson substantively violated his probation by committing the crime of possession of cannabis, as evidenced by a positive drug test. This legal conclusion is supported by precedent. See Henderson v. State, 720 So. 2d 1121, 1123 (Fla. 4th DCA 1998) (suggesting “testing positive for marijuana may qualify as a substantive violation” ) (citing Robinson v. State, 702 So. 2d 1346 (Fla. 5th DCA 1997)); see also Buckins v. State, 789 So. 2d 1184, 1185 (Fla. 4th DCA 2001) [*3] (noting a defendant who tested positive for cocaine substantially and willfully violated the conditions of his probation). Because the lower court found a substantive violation, the court was not bound by the six-year cap found in section 958.14.

Further, Apprendi does not apply in this case. There, the supreme court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added). The key term is “fact,” as the jury is not entitled to make legal determinations; questions of law are within the exclusive province of the court. In this case, Thompson incorrectly argues that the determination that the violation is technical or substantive is a “finding of fact” as understood from Apprendi. It is not a “finding of fact” but instead a legal determination. Thus, the lower court did not violate Thompson’s due process rights as described in Apprendi.

The lower court dismissed Thompson’s motion, instead of denying it on the merits, possibly believing the issue had been raised and rejected [*4] on direct appeal and in a prior petition for writ of habeas corpus. We believe the issue presented in the instant motion was sufficiently distinct from the prior pleadings to allow for consideration on the merits. However, as described above, from the face of the record and the applicable law, Thompson is not entitled to the relief he seeks. Thus, the lower court should have denied relief on the merits and not dismissed the case as procedurally barred. Remand for such an order would be a waste of judicial resources and thus we choose to affirm on the merits. See generally Richardson v. State, 918 So. 2d 999 (Fla. 5th DCA 2006) (refusing to remand for the entry of an order changing the disposition from denial to dismissal).

Warner, Shahood and Taylor, JJ., concur.

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MITCHELL NEWKIRK, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-4493

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No. 03-2477 CFA02.

COUNSEL: Mitchell Newkirk, Okeechobee, Pro se.

No appearance required for appellee.

JUDGES: Warner, J. Stevenson, C.J., and Farmer, J., concur.

OPINION BY: Warner

OPINION: Warner, J.

Appellant appeals the trial court’s denial of his motion for postconviction relief based upon allegations of his counsel’s ineffective assistance. Under the standard of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984), appellant must show that any ineffective performance of counsel has prejudiced him in these proceedings. To that end, appellant must demonstrate a reasonable probability that the deficient performance affected the outcome of the proceedings or rendered them fundamentally unfair. See Provenzano v. State, 616 So. 2d 428, 431 (Fla. 1993). Because he did not prove prejudice, we affirm.

Appellant’s allegations of failure to object to evidence of prior convictions which qualified appellant for an enhanced sentence [*2] do not show any prejudice, because he does not allege under oath that the convictions used to enhance his sentence were not his or that he did not qualify for an enhanced sentence. He also alleges that his counsel failed to present evidence to mitigate his sentence, but does not allege what that evidence would have been. Thus, he has made no showing of any effect on the outcome of the sentencing proceeding. Additionally, his allegations with respect to failure to request a speedy trial discharge also do not show that the proceeding was rendered fundamentally unfair or that the state could not have brought him to trial within the time periods allowed by the speedy trial rule.

Finally, he makes the curious claim that his trial counsel failed to file a notice of appeal, but the state attached a copy of the notice. This court entertained an appeal from the conviction and sentence. See Newkirk v. State, 898 So. 2d 228 (Fla. 4th DCA 2005). This claim is meritless.

Affirmed.

Stevenson, C.J., and Farmer, J., concur.

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SALVATORE BENNETT, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D04-4825

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

PRIOR HISTORY: [*1] Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 04-673 CF10A.

COUNSEL: Salvatore Bennett, Moore Haven, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: Polen, Klein and Shahood, JJ., concur.

OPINION: ON REMAND FROM THE FLORIDA SUPREME COURT

Per Curiam.

In his rule 3.800(a) motion to correct an illegal sentence, appellant argued in part that he did not qualify as a habitual offender because all of his prior convictions were sentenced on the same day during the same sentencing proceeding. § 775.084(5), Fla. Stat. (2004).

In response to his motion, the state asserted that he has a number of prior convictions that were sentenced on two different dates and that the certified convictions were part of the court file. However, no records were attached to the state’s response below or the trial court’s order to show that appellant’s prior convictions satisfy the sequential sentencing requirement of the habitual offender statute. The state attempted [*2] to provide the records on appeal. However, this court has repeatedly held that the state cannot cure the defect in the trial court’s order by providing records to this court. Collins v. State, 805 So. 2d 73 (Fla. 4th DCA 2002); Foley v. State, 657 So. 2d 929 (Fla. 4th DCA 1995); see also Fla. R. App. P. 9.141(b)(2)(D).

As a result, we reversed the trial court’s order and on remand instructed the trial court to address this court’s decision in Richardson v. State, 884 So. 2d 950 (Fla. 4th DCA 2004), quashed by State v. Richardson, 915 So. 2d 86 (Fla. 2005). Bennett v. State, 904 So. 2d 447 (Fla. 4th DCA 2005).

Following its decision in Richardson, the Florida Supreme Court quashed this court’s earlier decision in Bennett and remanded this case for reconsideration.

Because appellant stated a legally sufficient claim, which was not refuted by the attached records, the circuit court’s order is reversed and this case is remanded for the court to attach records that show appellant qualifies for habitual offender sentencing.

Polen, Klein and Shahood, [*3] JJ., concur.

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DEXTER GUNN, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-3915

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ilona M. Holmes, Judge; L.T. Case No. 90-20848 CF10A.

COUNSEL: Dexter Gunn, Punta Gorda, Pro se.

No appearance required for appellee.

JUDGES: Stevenson, C.J., and Taylor, J., concur. Farmer, J., concurs in result only.

OPINION: Per Curiam.

We affirm the trial court’s summary denial of the motion for postconviction relief, but not its dismissal. We agree with the defendant that a trial court should review the merits of a postconviction motion, even if untimely, which raises a jurisdictional issue that was not previously considered on the merits. See Brown v. State, 917 So. 2d 272 (Fla. 5th DCA 2005) (reversing summary denial of rule 3.850 motion, and holding that the trial court was required to address the merits of defendant’s motions for postconviction relief where they raised jurisdictional issues that were not previously raised, as a void judgment may be collaterally attacked at any time). However, the ground for the instant motion lacks merit. The Broward County circuit court, where [*2] the defendant was prosecuted for felonies alleged to have been committed in Broward County, did not lack subject matter jurisdiction to rule on a motion to suppress evidence sought to be used in that case, see § 26.012(2) (d), Fla. Stat. (1989), even though the motion was based on the allegedly pretextual nature of a traffic stop, which also resulted in unrelated charges which were prosecuted in the county court.

Affirmed.

Stevenson, C.J., and Taylor, J., concur.

Farmer, J., concurs in result only.

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JERMAINE WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-2722

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Charles M. Greene, Judge; L.T. Case No. 03-260452 CF10A.

COUNSEL: Edward de R. Cayia of Edward de R. Cayia, P.A., Fort Lauderdale, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: WARNER, J. STEVENSON, C.J., and TAYLOR, J., concur.

OPINION BY: WARNER

OPINION: WARNER, J.

In this appeal of his conviction, the appellant, Jermaine Williams, claims that the trial court erred in denying his motion to dismiss for speedy trial violation where he alleges he was taken into custody in 2000 but not charged until 2003. Because the trial court determined based upon disputed facts that he was not taken into custody on state charges in 2000, the speedy trial period did not commence. Even if his 2000 arrest was on state charges, Florida Rule of Criminal Procedure 3.191 prevented the commencement of speedy trial time in this case because Williams remained in federal custody until he was returned to Florida to face [*2] state charges. The trial court correctly denied his motion for discharge, and we affirm his conviction and sentence.

In the early morning hours of October 20, 2000, the Coral Springs police responded to an attempted robbery of an armored car where security guards were shot. Shortly thereafter, FBI agents arrived on the scene. At the hearing on the motion to dismiss, the Coral Springs detectives testified that the agents and the detectives jointly worked the investigation.

Later on the same day, the detectives received information that a suspect might be obtaining treatment at a local hospital. A Coral Springs officer and an FBI agent went to the hospital to investigate the possible suspect, who turned out to be Williams. The Coral Springs detective testified that the FBI normally takes the lead in any bank robbery, so the investigation was a joint one.

At the hospital, the detective recognized Williams from previous encounters and began conducting an interview. When the doctor medically cleared Williams, the detective asked Williams to come back to the station with them. However, the detective testified that Williams was free to leave at that point.

Williams accompanied the detective [*3] and the FBI agent back to the Coral Springs Police station where he was questioned. He was not taken to FBI headquarters in Miami, because the Coral Springs location was closer. When they arrived at the station, the detective placed Williams in an interview room, read him his Miranda rights, and began to interview him. The detective who interrogated Williams testified that after the interview was completed, another Coral Springs detective, Ferm, handcuffed and arrested Williams. However, Ferm denied that he ever placed Williams under arrest for state law violations. All of the detectives testified that they believed that the FBI was taking the lead as it would be a federal case first.

The FBI agent involved in the interrogation testified that given the level of violence in the robbery, it would become a federal case. A decision to arrest Williams was made early on when they were interviewing Williams. After the interviews were complete, the FBI agents took custody of Williams. He was transported to the Fort Lauderdale city jail, which had a contract with the federal government to hold federal prisoners. The FBI agent testified that Williams was not actually arrested or booked [*4] by the Coral Springs Police Department (CSPD). Instead, FBI agents completed the paperwork necessary to drop federal prisoners off in the city lockup, where Williams was kept overnight and transported to federal court for a first appearance hearing in the morning.

Williams was charged and prosecuted for federal charges, and in 2002 was sentenced to 16.6 years in federal prison. On February 5, 2003, the state charged Williams with state charges arising out of the incident. Williams filed a motion to discharge pursuant to Florida Rule of Criminal Procedure 3.191, alleging that he was first in custody for purposes of that rule in October 2000, because he had been arrested by the State of Florida at that time. Therefore, Williams claimed that the speedy trial time had run.

After hearing extensive evidence, the trial court found that the investigation of the robbery was a joint investigation conducted by the CSPD and the FBI. Within eight hours the U.S. Attorney’s Office had authorized federal prosecution. Williams volunteered to accompany the detective and the FBI agent to the police station. Therefore, he was not in custody or under arrest at that time. [*5] Further, the court found that Williams was never arrested by the CSPD. The court reasoned that the investigatory detention of Williams was for federal prosecution, and at the end of the investigation both Williams and his co-defendant, Espinueva, were taken into custody by the FBI and transported to the Fort Lauderdale city jail, which had a contract with the federal government, rather than being booked into the Broward County jail where they would have gone were they being held on state charges. Because the court found that Williams was never in custody on state charges, it found that the speedy trial time never commenced until charges were filed in 2003. It therefore denied the motion. n1

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n1 The court denied the motion as it applied to Williams’ co-defendant also, and our court has recently affirmed the denial of the motion as it applied to him. See Espinueva v. State, 31 Fla. L. Weekly D2987 (Fla. 4th DCA Nov. 29, 2006).

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After the denial of the motion, Williams pled to the charges, reserving his right [*6] to appeal the denial of his motion to dismiss. He was sentenced, and appeals his state convictions and sentences.

Williams argues that the state speedy trial period commenced on October 20, 2000, when he was arrested by the CSPD. He maintains that the trial court erred in denying his motion to discharge because the state neglected to prosecute the case when it filed the information over 175 days after October 20, 2000. The state, on the other hand, contends that he was not taken into custody on state charges, and therefore the state speedy trial time did not commence until Williams was released by the federal government for state prosecution.

Florida Rule of Criminal Procedure 3.191(a) states, in pertinent part: “Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (f), every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony.” For purposes of rule 3.191, a person is taken into custody: 1) when the person is arrested as a result of the conduct or criminal episode that gave [*7] rise to the crime charged, or 2) when the person is served with a notice to appear in lieu of physical arrest. Fla. R. Crim. P. 3.191(d).

Rule 3.191(e) governs prisoners held outside of Florida’s jurisdiction and provides, in relevant part:

A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this state or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this state, is not entitled to the benefit of this rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of the person’s return is filed with the court and served on the prosecutor. For these persons, the time period under subdivision (a) commences on the date the last act required under this subdivision occurs . . . .

Thus, rule 3.191(e) prevents the rule-based speedy trial period from running while the accused is in federal custody. See State v. Mitchel, 768 So. 2d 1223, 1224 (Fla. 3d DCA 2000). Here, even assuming that Williams was first arrested [*8] by the CSPD, and that the arrest constituted a state arrest, the FBI took custody of Williams that very day. Thus, the Florida speedy trial period did not commence until after he was returned to Florida.

However, in this case the trial court made factual findings that Williams was not arrested by the CSPD. An appellate court must defer to the factual findings of the trial court that are supported by competent substantial evidence. Bautista v. State, 902 So. 2d 312, 313-14 (Fla. 2d DCA 2005). Here, the court concluded that the Coral Springs detectives were merely assisting the FBI in effectuating an arrest. There is competent substantial evidence to support these factual findings, even though some conflicting evidence was offered. We therefore defer to the findings of the trial court. That means that Williams was never in state custody for purposes of the commencement of the speedy trial rule.

For these reasons, we conclude that the trial court correctly denied the motion to dismiss on speedy trial grounds and affirm Williams’ convictions and sentences.

Affirmed.

STEVENSON, C.J., and TAYLOR, J., CONCUR.

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SAMUEL L. NEWBY, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-3555

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jorge Labarga, Judge; L.T. Case No. 04CF010413A02.

COUNSEL: Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: TAYLOR, J. STEVENSON, C.J., and STONE, J., concur.

OPINION BY: TAYLOR

OPINION: TAYLOR, J.

Appellant, Samuel Newby, was found guilty by jury of burglary of a dwelling, resisting an officer without violence, and petty theft. He was sentenced to fifteen years in prison as a Prison Releasee Reoffender (PRR) on the burglary conviction. We affirm, rejecting appellant’s contention that the trial court erred in relying on a certified letter from the Department of Corrections to establish his release date under the PRR statute. See Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006); see also Corker v. State, 937 So. 2d 757 (Fla. 4th DCA 2006); Rivera v. State, 939 So. 2d 1997 (Fla. 4th DCA 2006). [*2] As we did in the above-cited cases, we certify conflict with Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005).

We also reject appellant’s argument that the PRR statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000). See Kijewski v. State, 773 So. 2d 124 (Fla. 4th DCA 2000), rev. denied, 790 So. 2d 1105 (Fla. 2001); accord McDowell v. State, 789 So. 2d 956, 957-58 (Fla. 2001); Sheffield v. State, 794 So. 2d 592, 594-95 (Fla. 2001); Parker v. State, 790 So. 2d 1033, 1035 (Fla. 2001).

Because the judgment of conviction incorrectly reflects that appellant entered a plea to these charges, we remand for correction to reflect that he was tried by jury. See Baker v. State, 925 So. 2d 484 (Fla. 4th DCA 2006); Browning v. State, 932 So. 2d 1150 (Fla. 2d DCA 2006); Quintero v. State, 939 So. 2d 333 (Fla. 4th DCA 2006).

Affirmed, but remanded to correct the scrivener’s error in the judgment.

STEVENSON, C.J., and STONE, J., concur.

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ROBERT BRADY, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-3816

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 01-6823 CF10A.

COUNSEL: Robert Brady, Miami, Pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: GROSS, J. KLEIN and MAY, JJ., concur.

OPINION BY: GROSS

OPINION: GROSS, J.

Robert Brady appeals the denial of his post-conviction motion filed under Florida Rule of Criminal Procedure 3.850 after an evidentiary hearing on one of his claims. We affirm.

At the evidentiary hearing, Brady expressed dissatisfaction with his court-appointed attorney and requested another one. The trial court concluded that counsel was providing adequate assistance and denied the request. Brady chose to proceed with counsel.

The evidentiary hearing concerned Brady’s claim that trial counsel was ineffective for failing to call Brady’s cousin as a witness to support a self-defense claim. However, before trial, Brady told his lawyer that he had an alibi defense-he claimed he was in St. Augustine at the time [*2] of the shooting; never did Brady tell counsel that he was at the scene of the shooting or that he shot the victim in self-defense. Before trial, Brady told an investigator that he was in Orlando at the time of the shooting. He gave the investigator the name of a witness who supported the alibi. The investigator tried without success to confirm the alibi in North Florida. Brady denied telling his lawyer or investigator that he was in Orlando or St. Augustine at the time of the shooting.

The trial court denied relief, concluding that Brady’s testimony was not credible.

On appeal, Brady raises two arguments. That the court erred in summarily denying claim seven of his motion and that post-conviction counsel provided ineffective assistance.

In claim seven, Brady contends that trial counsel was ineffective for failing to seek suppression of a post-custody statement under Roberts v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004). We affirm the summary denial of his claim because Brady received the functional equivalent of adequate Miranda warnings and he failed to show prejudice under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984).

On the [*3] remaining claim, our review of the record demonstrates that Brady was not denied meaningful access to the courts. See Kokal v. State, 901 So. 2d 766, 777 (Fla.), cert. denied, 126 S. Ct. 560, 163 L. Ed. 2d 471 (2005).

Affirmed.

KLEIN and MAY, JJ., concur.

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WATISHA TOMMIE, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-4502

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 27, 2006, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Stephen A. Rapp, Judge; L.T. Case No. 05CF001518A02.

COUNSEL: Tara A. Finnigan of Tara A. Finnigan, P.A., West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: WARNER, J. STEVENSON, C.J., and TAYLOR, J., concur.

OPINION BY: WARNER

OPINION: WARNER, J.

After the appellant, Watisha Tommie, pled guilty to grand theft and was sentenced to four years in prison, she moved to withdraw her plea, claiming that she had been misinformed as to the length of prison sentence she could receive. The court denied the motion and she appeals, arguing that fundamental error occurred when the trial court failed to appoint conflict-free counsel to represent her at the motion to withdraw hearing. We conclude that the court did not err because no patent conflict was present.

Tommie was informed against for grand theft, which arose out of her use of two credit cards held by other persons. The state offered her a sentence of two years in prison, but Tommie [*2] declined. She then changed her plea to guilty and at sentencing requested a sentence of probation. The court conducted the standard plea colloquy, including advising Tommie that the maximum sentence was five years. After hearing from the victims of the theft, the court sentenced her to four years in prison.

Shortly after the sentence was imposed, Tommie filed a motion to withdraw her plea pursuant to Florida Rule of Criminal Procedure 3.170(l). In the motion she claimed that she was told by her counsel, Barbara Wolfe, that her sentence could range from probation to prison, but she was not told that she could receive up to five years in prison. Had she been so informed, she would have accepted the state’s offer instead of pleading to the court. The motion was filed by Wolfe.

At the hearing, Wolfe told the court that she had advised Tommie that she could receive prison, but did not tell her the maximum prison sentence. Tommie testified that when the state offered her two years, Wolfe said to her, “I tell you what let’s go plea before the Judge and get a better deal.” Tommie further stated that Wolfe “told me I could get two years or a lot of probation [*3] . . . . And, I say well how much probation and she say, I can’t promise you how much probation but if he gives you probation it’s going to be a lot.” When the state asked Tommie if she thought she could get more than two years in prison if she pled guilty, Tommie responded, “I really don’t know.” When asked a second time, Tommie answered that she did not think she could get more than two years: “I figured it was either the two years or a lot of probation.”

Wolfe also testified and admitted that she did not inform Tommie of the maximum possible prison sentence. During Wolfe’s direct examination, Wolfe testified:

I did not specify what her sentence could be, the limits of her sentence but I did tell her she could get a prison sentence. I didn’t specify what it – what it could be. I did tell her that it would be up to the court and that if she did plea to the court there were no guarantees of what would happen.After the direct examination, Wolfe stated:I do feel some responsibility for not having advised my client better in this matter. We didn’t discuss that she could have gotten up to five years in prison. I never specifically gave her that information. And, [*4] I believe it did effect [sic] her decision to take a chance and plead up to the court. And, if she had been fully informed about the maximum sentence that she could have received, it may have effected [sic] her decision about whether or not to accept the State’s offer.

After hearing the evidence, the trial court concluded that Tommie “pled to four third degree felonies with maximum penalties of five years. She was informed of this fact by the Judge before her plea. She said she understood that and that she was not promised anything in order to get her to plea.” Accordingly, the court denied her motion to withdraw her plea. This appeal follows.

It is well-established that a criminal defendant facing incarceration has a right to effective assistance of counsel at every critical stage of the proceedings against him or her. Padgett v. State, 743 So. 2d 70, 72 (Fla. 4th DCA 1999). A hearing on a 3.170(l) motion to withdraw a plea after sentencing is a critical stage of the proceedings. Id. at 72-73. If it becomes apparent during a hearing on a motion to withdraw that counsel and the client are taking opposing and thus adversarial positions, [*5] it is incumbent on the court to provide the defendant with conflict-free counsel. Id. at 73. See also Iaconetti v. State, 869 So. 2d 695, 699-700 (Fla. 2d DCA 2004); Garcia v. State, 846 So. 2d 660, 661 (Fla. 2d DCA 2003) (“Once it became clear that Garcia and his counsel had adversarial positions concerning what actually happened while counsel was advising Garcia concerning the plea, Garcia was entitled to conflict-free counsel.”).

Tommie claims that the court committed fundamental error by failing to appoint conflict-free counsel for her at the hearing because she and her counsel took adversarial positions as to Wolfe’s advice to her. However, we do not find that there was any apparent conflict between Wolfe’s testimony and Tommie’s testimony. Wolfe admitted that she never told Tommie how much time she could serve in prison-her maximum sentence. Tommie testified that she believed that her sentence could be two years or probation, but she did not know if she could get more than that. The testimony is consistent, because Tommie claimed that she did not know she could get more than two years, and Wolfe admitted that she did not [*6] tell her how much time she could serve.

In Smith v. State, 845 So. 2d 937 (Fla. 5th DCA 2003), the Fifth District found a conflict between the defendant and counsel where Smith testified during an evidentiary hearing that he did not understand the severity of this case or the harshness of his sentence, and his counsel testified that he felt Smith was fully advised as to what he was doing. The court held that “once it became clear that Smith and his attorney had taken adversarial positions concerning the advice Smith had received concerning his plea, Smith should have been afforded the opportunity to have the benefit of conflict-free counsel to present his position.” Id. at 938.

The Fifth District clarified Smith in Carmona v. State, 873 So. 2d 348 (Fla. 5th DCA 2004), and explained that when a patent conflict of interest arises between counsel and client in a motion to withdraw proceeding, the court has a duty to offer the client conflict-free counsel. “It is only when conflict becomes obvious . . . that the trial judge is obligated to intervene into the attorney-client relationship to offer conflict [free] counsel.” Id. at 350. [*7]

Here, we cannot say that there was any obvious conflict between counsel and Tommie. Instead, it appears that Wolfe was supporting her client and admitted that she may have been ineffective in failing to fully inform her client of the sentencing possibilities and that misinformation did occur. Despite this admission, the trial court determined that prior to taking the plea, the court itself had informed Tommie of the sentencing maximum, and she stated that she understood. Thus, after hearing the evidence from Tommie and her counsel as well as a review of the plea hearing, the trial court found that Tommie was aware that she could be sentenced to five years, and she was only sentenced to four. Thus, any deficiency in counsel’s advice was cleared up by the information the court provided during the plea colloquy. See Bond v. State, 695 So. 2d 778 (Fla. 1st DCA 1997).

Because no obvious conflict was apparent between counsel and defendant, the court did not fundamentally err in failing to appoint conflict-free counsel. Because there was competent, substantial evidence supporting the trial court’s ruling after a full evidentiary hearing, we affirm.

Affirmed.

StEVENSON, [*8] C.J., and TAYLOR, J., concur.

Courtesy of David Edelstein

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