Florida Criminal Law Opinions

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

No. 4D06-4159

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

January 31, 2007, 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 Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 02-12267 CF10A.

DISPOSITION: Affirmed.

COUNSEL: Michael Williams, Bristol, Pro se.

No appearance required for appellee.

JUDGES: STEVENSON, C.J., STONE and KLEIN, JJ., concur.

OPINION: Per Curiam.

Appellant was convicted in 2003 of robbery while wearing a mask. He asserts under rule 3.800(a) that his sentence is illegal because it was enhanced twice, once because the jury found he wore a mask, section 775. 0845, Florida Statutes (1999), and again as an habitual felony offender. Appellant’s argument that section 775.0845 is an enhancement, and not a reclassification of his crime, is without merit. Roberts v. State, 923 So. 2d 578 (Fla. 5th DCA 2006) (no double jeopardy where habitual felony offender enhancement was applied to an offense which was reclassified due to the use of a weapon under section 775.087(1)). Cabal v. State, 678 So. 2d 315 (Fla. 1996 ), which appellant cites, has been superseded by the 1997 amendment to section 775.0845 [*2] , which clarified the legislative intent to reclassify. Sumpter v. State, 838 So. 2d 624 (Fla. 4th DCA 2003); McDonald v. State, 714 So. 2d 643 (Fla. 3d DCA 1998).

Affirmed.

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

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Anthony E. Smith, Appellant, vs. The State of Florida, Appellee.

No. 3D05-90

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

January 31, 2007, Opinion Filed

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

PRIOR HISTORY: An Appeal from the Circuit Court for Miami-Dade County, Thomas M. Carney, Judge. Lower Tribunal No. 03-36020.

COUNSEL: Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and John D. Baker, Assistant Attorney General, for appellee.

JUDGES: Before GREEN, RAMIREZ, and ROTHENBERG, JJ.

OPINION BY: ROTHENBERG

OPINION: ROTHENBERG, Judge.

The sole issue raised in this appeal is whether the trial court erred in denying defense counsel’s peremptory challenge of a prospective juror. As we find no error, we affirm.

During jury selection, the defense moved to exercise a peremptory challenge to strike juror Buchholz. The following took place:

DEFENSE: We are going to ask for a peremptory on Mr. Buchholz, No. 12.

STATE: Judge, I would - -

COURT: Wait a minute. What about Buchholz? You are peremptorily challenging him?

DEFENSE: Yes, sir.

COURT: Are you requiring an explanation?

STATE: Yes, Judge.

DEFENSE: Is he a member of a distinct minority group which would render him - -

COURT: Buchholz?

DEFENSE: Yes.

COURT: [*2] Sounds to me like a German name.

DEFENSE: This is a recognized minority group within the law, I believe. Mr. Buchholz - -

COURT: I suppose there is - - anybody qualifies under our present great, deeply thought out appellate decisions.

DEFENSE: He is a victim of a house robbery which makes him a victim of a crime. And he can harbor bias or any difficulty in this case - -

COURT: The Court will rule that is not a genuine objection and it is overruled.

The defendant claims that the State’s objection to the peremptory challenge of juror Buchholz was insufficient and, therefore, argues that the trial court erred in conducting a Neil n1 inquiry and in requiring the defense to provide a race-neutral reason for the challenge. We disagree.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 State v. Neil, 457 So. 2d 481 (Fla. 1984).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

While the opponent of a peremptory challenge must make a timely objection, identify the distinct racial or ethnic class or gender of the juror being challenged, and request that the trial [*3] court ask the striking party to articulate its reason(s) for the strike, Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996), there is no magical incantation which must be uttered to satisfy this requirement. The opponent need only alert the court to its objection. Franqui v. State, 699 So. 2d 1332, 1335 (Fla. 1997), cert. denied, 523 U.S. 1040, 118 S. Ct. 1337, 140 L. Ed. 2d 499 (1998); State v. Holiday, 682 So. 2d 1092, 1093 (Fla. 1996); Alsopp v. State, 855 So. 2d 695, 696 (Fla. 3d DCA 2003). “[A]ny doubt concerning whether the objecting party has met its initial burden must be resolved in that party’s favor.” Holiday, 682 So. 2d at 1093 (quoting Valentine v. State, 616 So. 2d 971, 974 (Fla. 1993)).

The defendant argues that the State’s objection was insufficient to require the defense to articulate its reason(s) for challenging Buchholz. However, while the law does not require the trial court to make an inquiry as to the striking party’s reason(s) for exercising a peremptory challenge of a prospective juror unless there is a timely objection and the party objecting to the peremptory challenge [*4] identifies the distinct racial or ethnic class or gender of the juror being challenged, the trial court may exercise its discretion to do so if it clearly understands the nature of the objection.

In 1997, the Florida Supreme Court emphasized in Franqui that “trial courts have broad discretion in determining the propriety of the exercise of peremptory challenges,” id. at 1334-35, and drew a distinction between those cases in which reversal is being sought when the trial court failed to make a required inquiry and those in which an inquiry was made even though the objection levied did not require it to do so.

In Franqui, defense counsel claimed that the trial court erred in denying its exercise of a peremptory challenge of a juror because the State did not satisfy its burden to trigger a Neil inquiry to which the defense was required to respond. In rejecting this argument, the majority in Franqui stated:

We cannot agree with the dissenting opinion that the State’s objection was insufficient to permit the trial court to make inquiry with respect to whether juror Diaz was being challenged for nonracial reasons. In support of their position, [*5] the dissenters rely on Windom v. State, 656 So. 2d 432 (Fla.), cert denied, [516] U.S. [1012], 116 S. Ct. 571 (1995), 133 L. Ed. 2d 495 . . . .

. . .

Our holding in Windom was that there was not a sufficient objection to reverse the trial court for not requiring the challenging party to provide race-neutral reasons for the challenge. Thus, the rationale of Windom would be pertinent if the trial court in the instant case had declined to inquire into the racial basis for the challenge. Here, however, the trial court clearly understood that the objection to the challenge of a venireperson in Dade County, who was born and raised in Havana, Cuba, and whose name was Aurelio Diaz, was being made on racial grounds. This is especially true because there was never any contention made to the trial court that prospective juror Diaz was not a member of a cognizable minority or that there should not be a Neil inquiry. Moreover, we have encouraged trial judges to err on the side of holding a Neil inquiry.

Franqui, 699 So. 2d at 1335 (first and third emphasis added) (footnote omitted). Thus, in Franqui [*6] , while the State’s objection was arguably insufficient to require the trial court to conduct a Neil inquiry, the Florida Supreme Court affirmed Franqui’s convictions after concluding that the trial court did not abuse its discretion in requesting the defense to provide a race-neutral reason for its peremptory challenge of the juror since it was clear that the trial court understood that the objection was made on racial grounds.

This court and the other district courts of this State have likewise repeatedly held that as long as the trial court understands the nature of the objection, an inquiry may be made. See Murray v. Haley, 833 So. 2d 877, 879 (Fla. 1st DCA 2003) (rejecting appellees’ argument that appellant failed to satisfy step one because counsel never requested the trial court to make a Neil inquiry and, therefore, did not mandate further inquiry by the trial court and holding that “[a]lthough appellants never actually requested that the trial court ask appellees to articulate a gender-neutral reason for their challenges, it is apparent that the trial court understood the nature of the objections. It would elevate form over substance [*7] to conclude that, even though the trial court understood the nature of the objections, those objections were insufficient to preserve the issue for appellate review.”); Alsopp v. State, 855 So. 2d 695, 697 (Fla. 3d DCA 2003) (holding that “where it is clear that the challenged juror is a member of a racial or ethnic group and the court is aware of the fact, a general objection is sufficient to trigger an inquiry”); Foxx v. State, 680 So. 2d 1064, 1065 (Fla. 3d DCA 1996) (finding the State’s comment that “we would ask for a Neil inquiry” sufficient where it was clear from the record that the prospective juror was a member of a distinct racial group and the trial court was aware of this fact); Joseph v. State, 636 So. 2d 777, 781 (Fla. 3d DCA 1994) (rejecting State’s argument that because there was no showing that a juror was, in fact, Jewish, the defendant had not met the threshold requirement of Neil, finding, instead, that because “[t]here is no question that the trial judge understood the basis of the defendant’s objection” an inquiry was required).

In the instant case, we conclude that a sufficient objection was made, [*8] and we reject the premise that an inquiry cannot be made by the trial court unless the threshold is met, a premise clearly rejected by our Supreme Court and this court. We also conclude that the defendant’s reliance upon Windom is misplaced, as in Windom the issue was whether the trial court erred in failing to make an inquiry, not whether it erred for making one, which is the issue before us.

A review of the record reflects that when the defense attempted to exercise a peremptory challenge to juror Buchholz and the State began to object, the trial court interrupted apparently because the trial court did not hear or understand the status of juror Buchholz and asked for clarification by both the defense and the State:

DEFENSE: We are going to ask for a peremptory on Mr. Buchholz, No. 12.

STATE: Judge, I would - -

COURT: Wait a minute. What about Buchholz? You are peremptorily challenging him?

DEFENSE: Yes, sir.

COURT: Are you requiring an explanation?

STATE: Yes, Judge.

Thus, the record clearly reflects that while the trial court initially interrupted the State, the State clearly and unequivocally stated [*9] that it was objecting to the challenge and was asking the court for an inquiry as to the reason(s) for the challenge, and the trial court understood the State’s objection and request for an inquiry. Before the State identified the basis for its objection to the peremptory challenge of Buchholz, however, the defense asked for clarification as to the racial or ethnic group Buchholz was a member of, was given one, and thereafter, did not object to providing a race-neutral reason for its challenge to Buchholz.

DEFENSE: Is he a member of a distinct minority group which would render him - -

COURT: Buchholz?

DEFENSE: Yes.

COURT: Sounds to me like a German name.

DEFENSE: This is a recognized minority group within the law, I believe Mr. Buchholz - -

COURT: I suppose there is - - anybody qualifies under our present great, deeply thought out appellate decisions.

At which point, without objection, the defense proffered its reasons for challenging Buchholz. Thus, the transcript reflects that everyone understood that the State (1) was objecting to the peremptory challenge of Buchholz, (2) the objection was based upon Buchholz’ ethnicity, (3) the parties [*10] all apparently believed or accepted the proposition that Buchholz appeared to be of German descent, (4) the parties all agreed or accepted that being German placed Buchholz in a recognizable group or class, and (5) the defense did not thereafter object to proffering its reason(s) for challenging Buchholz.

Thus, we conclude, as did the Florida Supreme Court in Franqui, that the trial court did not abuse its discretion in requesting the defense to provide a race-neutral reason for its peremptory challenge of prospective juror Buchholz.

AS DEFENSE COUNSEL PROFFERED HIS REASONS FOR PEREMPTORILY CHALLENGING BUCHHOLZ WITHOUT OBJECTION, THE ISSUE WAS WAIVED AND IS NOT SUBJECT TO APPELLATE REVIEW

Without belaboring the point, the transcript of the proceedings clearly reflects that after Mr. Buchholz’s ethnicity was discussed, the defendant’s trial counsel did not disagree that Mr. Buchholz appeared to be of German descent and was a member of a distinct group or class sufficient to permit further inquiry by the court, and proffered his reasons for the challenge, without objection. The trial court concluded that the reasons proffered were not genuine and did not permit [*11] the peremptory challenge of Buchholz. As the record clearly supports the trial court’s finding that the reasons proffered were not genuine, we affirm.

Affirmed.

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PAUL MORIN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-3490

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

January 31, 2007, 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; Robert J. Morris, Jr., Judge.

DISPOSITION: Reversed and remanded.

JUDGES: STRINGER, Judge. WHATLEY and DAVIS, JJ., Concur.

OPINION BY: STRINGER

OPINION: STRINGER, Judge.

Paul Morin appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of claims one and three without comment but reverse and remand the denial of claim two.

In claim two, Mr. Morin attacked the factual basis of his plea, asserting there was insufficient evidence to justify the trial court’s imposition of a minimum mandatory sentence pursuant to section 775.087(2), Florida Statutes (2002). Mr. Morin argued that the trial court determined he had used a firearm in the commission of a burglary solely from the testimony of a codefendant. Mr. Morin claimed that no forensic evidence demonstrated he had used a firearm and no residue test was ever performed.

The postconviction [*2] court denied the claim, finding that it was a facially insufficient claim of ineffective assistance of counsel. However, Mr. Morin did not claim ineffective assistance of counsel. Moreover, Mr. Morin’s claim is cognizable in a rule 3.850 motion. See Mancino v. State, 705 So. 2d 1379, 1381 (Fla. 1998) (holding that “rule 3.850 rather than rule 3.800(a) was the proper procedural vehicle for Mancino to challenge his minimum mandatory sentence”).

Additionally, neither the attachments to the postconviction court’s order nor the limited record before this court conclusively refutes Mr. Morin’s claim. Accordingly, we reverse and remand for reconsideration of claim two. On remand, the postconviction court shall either attach those portions of the record that conclusively refute Mr. Morin’s claim or conduct an evidentiary hearing. We note that form language from Mr. Morin’s plea agreement is insufficient to establish a factual basis for the minimum mandatory penalty imposed upon Mr. Morin. See Dye v. State, 667 So. 2d 935, 936 (Fla. 2d DCA 1996) [*3] .

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.

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EDDIE HOUSTON KEYS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-2012

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

January 31, 2007, 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 Polk County; Oliver L. Green, Jr., Senior Judge.

DISPOSITION: Affirmed in part, reversed in part, and remanded.

COUNSEL: James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

JUDGES: FULMER, Chief Judge. NORTHCUTT, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

OPINION BY: FULMER

OPINION: FULMER, Chief Judge.

Eddie Keys challenges the sufficiency of the evidence to sustain his convictions for trespass and possession of burglary tools. We reverse the conviction for trespass but affirm the conviction for possession of burglary tools.

Keys was charged with burglary of a dwelling and possession of burglary tools. The case proceeded to a jury trial. The jury returned guilty verdicts for trespass, as a lesser included offense of burglary, and the charged offense of possession of burglary tools. The court sentenced Keys to time served for trespass and ten years’ imprisonment as a habitual offender for possession of [*2] burglary tools.

At trial, Susanna Cabrera testified that she lived across the street from a mobile home that had been vacant for the last couple of years. The home had a “For Sale” sign. On August 4, 2004, from her bedroom window, Cabrera noticed a man (later identified as Keys) going to the front of the home. Keys was taking the screens down from the front windows and putting them on the ground. Cabrera could not see the back of the mobile home from her vantage point. When asked if Keys went to the back of the home, Cabrera responded: “[He] [w]ent to the other corner of the house. There’s some small trees. He went to the other corner, but I didn’t see nothing from the back.”

Asked if she ever saw Keys try to enter through the front door, Cabrera replied that he opened the screen door and looked through, but he did not try to go through the door. Cabrera was asked whether, from her window, she could see if Keys had anything in his hands. She answered: “He had some kind of nails with tools in his hands but–he had something under his arm. I don’t know whether it was a block, but he had something square.” Cabrera acknowledged that she was not sure what exactly she saw in Keys’ [*3] hands; “it could have been anything.” As for the object under his arm, “It looked like some sort of brick or–I mean, I wouldn’t be able to tell you what it was.” She stated that “[t]here was a pile of metal and stuff and trash right in front of the garbage. And he did went in there, in front of the garbage.”

Victoria Ayala, Cabrera’s sister-in-law, testified that on August 4, 2004, Cabrera called her attention to a man across the street. Ayala looked out the door and saw a man taking screens off the windows of the vacant mobile home. She recognized him as someone she knew, she gave his description when she called the police, and she identified Keys in court. Asked if she saw anything in his hands, she said:

Yeah, he was like using something metal to take the screens off the windows. And then he like, he lifted up one side of the stairs where the steps are and took something out from underneath the steps.
And he walked toward the end where there was like a pole beside the street. And it looked like he was going to throw it at the trailer, but he didn’t throw it.
So I guess, because there was a car that came by, I guess when he seen it, he got scared or whatever, [*4] and just left.

Ayala testified that Keys never went inside the mobile home. The prosecutor asked:

So let’s–you saw him remove some screens. What else did you see?
A. Basically, basically he never went inside. So basically all I seen was that he did take the screens off and that he, you know, walked around the back of it, and then he come back around, but that was it.
Q. But did it appear to you that he was trying to gain entry into this residence?
A. That’s what it looked like. I don’t know if he could have been doing something totally different, but that’s the assumption I got.

Deputy Sheriff Hulverson received a description of a white male wearing blue sweat pants and a gray shirt, last seen walking. Responding to the location of the call, he saw Keys, who matched the description, walking in the rain about a block away. He was carrying a book and some deck spikes in his hands. The five deck spikes, introduced as State Exhibit 1, were nails approximately eight inches long and a quarter inch across; two of the five were slightly bent. Hulverson asked Keys if he could talk to him for a minute. Hulverson told him he matched the description of the subject [*5] that was seen at the residence, and Keys said he had been down the street looking at a house. That was where he had gotten the deck spikes. Hulverson asked if he would mind riding down there to make sure they were talking about the same house. Keys said that would not be a problem.

Detective Last testified that he drove to the scene to assist Deputy Sheriff Hulverson. When Last pulled up to the scene, Deputy Hulverson’s patrol car was already parked in front. Almost all of the window screens had been removed, and each was neatly propped up against the side of the mobile home directly underneath the corresponding window. On the back door, Last noticed some pry marks between the door and the door jamb, where the metal meets the frame, right adjacent to the doorknob. Last said he could tell the pry marks were fresh “because there was no type of corrosion or anything, they were bright silver pry marks.” Photographs of the door depicting the marks were introduced by the State.

Last read Keys his Miranda rights and interviewed him. Keys admitted to removing the screens; he said he was checking the home and making sure it was secure because he was interested in renting it. He told Last [*6] he knew it did not look right, but he was not trying to break into the house. As for the nails that were in his possession, he said he had found them at the rear of the residence.

Don Goodin, the owner of the mobile home, testified that he owns sixty to seventy homes, and his business is selling them. The property involved in this case had been vacant for some time. Asked if there was a “For Sale” sign in the yard on August 4, 2004, Goodin answered, “That date, I don’t know, but there should have been one there. People keep taking them. So when they’re gone, I put them back in, yes.” Goodin did not know Keys, and Keys would not have had permission to be on the property, to take the screens off the windows, or to pry on the doors. The prosecutor asked, “Before this happened, was there any damage to the property?” Goodin replied, “Not to my knowledge.”

On appeal, with regard to the conviction for possession of burglary tools, Keys argues that the State’s witnesses did not see him prying on the back door of the house attempting to gain entry and his observed actions were equally consistent with vandalism or criminal mischief as they were with any intent to gain entry. Consequently, [*7] the conviction for possession of burglary tools cannot be sustained unless the circumstantial evidence excludes every reasonable hypothesis that the pry marks on the back door could have been made by someone else in the days and weeks prior to August 4, 2004. Keys contends that absent proof that the pry marks on the back door were made by him using the deck spikes he found in the yard, his conviction for possession of burglary tools cannot stand. The State responds that reasonable persons could conclude that Keys had the intent to gain entry into the mobile home and the fresh pry marks were evidence of the overt act.

In Thomas v. State, 531 So. 2d 708, 709 (Fla. 1988), the supreme court explained that the statute criminalizing possession of burglary tools “describes and prohibits a crime in the nature of an attempt.” (Footnote omitted). “In effect, it criminalizes an attempt to commit a burglary or trespass, which is discerned through the possession of tools or devices coupled with the defendant’s intent to use those tools in the commission of the crime.” 531 So. 2d at 709.

Where a person is accused of possessing “burglary” tools, the state must [*8] prove beyond every reasonable doubt not merely that the accused intended to commit a burglary or trespass while those tools were in his possession, but that the accused actually intended to use those tools to perpetrate the crime. The statute is specific on this point:

Whoever has in his possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree . . . .

§ 810.06, Fla. Stat. (emphasis added). Thus, the statute criminalizes the intent to use an item in an illegal way. Mere possession standing alone will not constitute a crime.

Id. The specific intent to commit a burglary or trespass using the tools in the defendant’s possession “exists when he or she engages in or causes some overt act toward the commission of the burglary or trespass, which goes beyond merely thinking or talking about it.” Id. at 710. When the evidence of the intent is circumstantial, the State must prove that the evidence is inconsistent with any reasonable hypothesis of innocence. Id. at 710 n.2.

We [*9] agree with the State’s assertion here that Keys exhibited behavior indicating an intent to gain entry into the mobile home and that it was reasonable to infer that Keys made the pry marks on the back door with the deck spikes. We also agree that Keys’ explanation, that he was interested in renting the home and wanted to make sure it was secure, could be discounted as unreasonable and lacking credibility. We, therefore, conclude that the trial court did not err in denying the motion for judgment of acquittal.

With regard to the conviction for trespass, Keys asserts that he could not be convicted of trespass in a structure because the offense requires proof of entry, and the evidence affirmatively established that Keys did not enter the house. The State responds that Keys entered the airspace of the house when he removed the screens and when he inserted the deck spike into the door jamb.

We agree with Keys’ assertion that the evidence does not demonstrate entry into the structure. We reject the State’s argument that removal of the screens and attempting to pry open the door constituted entry. See J.B. v. State, 405 So. 2d 247 (Fla. 3d DCA 1981). In J.B., the appellate [*10] court reversed a delinquency order based on a finding that the child was guilty of a trespass of a structure because the State had failed to prove entry into the structure. The court remanded for the trial court to reduce the trespass charge to attempted trespass. Id. at 248.

Attempted trespass is a category two permissive lesser included offense of trespass pursuant to the Schedule of Lesser Included Offenses in the Standard Jury Instructions (2004). Section 924.34, Florida Statutes (2004), n1 would authorize the reduction of the trespass to the attempt if the charge and proof are present. See I.T. v. State, 694 So. 2d 720, 724 (Fla. 1997) (section 924.34 refers to both category one necessary lesser included offenses and category two permissive lesser included offenses if the charge and proof are present). In this case, the burglary charge in the information does not include language to support the element of attempt, such that attempted trespass can be considered a permissive lesser here. Therefore, we reverse for discharge on the trespass conviction.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 Section 924.34 provides:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*11]

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

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JOHN CHUBB, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-5567

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

January 31, 2007, 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 Union County. Stan R. Morris, Judge.

COUNSEL: John Chubb, Pro se, Appellant.

Bill McCollum, Attorney General, Tallahassee, for Appellee.

JUDGES: BARFIELD, VAN NORTWICK, and THOMAS, JJ., CONCUR.

OPINION: PER CURIAM.

The appellant filed a notice of appeal pursuant to the “mailbox” rule on October 16, 2006, seeking review of an “Order Dismissing Petition for Habeas Corpus,” filed in the lower tribunal on June 8, 2006. However, because the appellant’s motion for clarification, which the trial court treated as a second motion for rehearing, was not an authorized motion, see Arleo v. Garcia, 695 So. 2d 862 (Fla. 4th DCA 1997), it did not delay rendition of the order of dismissal. See Fla. R. App. P. 9.020(h). Consequently, the notice of appeal was not filed within 30 days of rendition of the order on appeal. For this reason, we dismiss this appeal for lack of jurisdiction without prejudice to the appellant’s right to seek relief in the trial court. See Brown v. State, 708 So. 2d 1041 (Fla. 1st DCA 1998). [*2]

BARFIELD, VAN NORTWICK, and THOMAS, JJ., CONCUR.

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