Florida Criminal Law Opinions

JEFFREY C. BANKS, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-1393

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 28, 2007, Decided

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

PRIOR HISTORY: Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562004CF003637A.

DISPOSITION: Reversed and Remanded to strike the three-year mandatory minimum.

COUNSEL: Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: May, J. Stone and Farmer, JJ., concur.

OPINION BY: May

OPINION: May, J.

The defendant appeals his conviction and sentence for possession of a firearm by a convicted felon after being acquitted of attempted murder. The trial court sentenced him to twelve years with a three-year mandatory minimum on the possession charge. He raises two issues, one concerns the court’s imposition of a mandatory minimum sentence without the requisite jury finding of “actual” possession of the firearm. We agree with his position on this issue and reverse that part of the sentence and remand the case to the trial court to strike the mandatory minimum part of his sentence.

The charges [*2] arose from a domestic dispute between the defendant and his girlfriend over her use of drugs. According to the defendant, his girlfriend grabbed the gun and it discharged as he attempted to disarm her. The girlfriend testified that the defendant threatened to kill himself if she would not stop using drugs. The next thing she knew, she was shot in the neck. It appears that the gun was either in the possession of one, the other, or both.

The court severed the jury’s consideration of the attempted murder charge from the possession charge. However, during the jury’s consideration of the attempted murder charge, it was given a special interrogatory concerning the defendant’s possession of the firearm. The jury found the defendant in possession of the firearm. However, possession was defined just below the interrogatory as actual, constructive, or joint. The fourth paragraph stated: “Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.” The jury circled the words “Possession may be joint.” The jury then acquitted the defendant of [*3] the attempted murder charge.

Defense counsel advised his client that he did not need a separate jury determination on the possession charge because the defendant had admitted he was a convicted felon during his testimony and the jury had answered the special interrogatory affirmatively. The defendant agreed. Thereafter the defendant entered a no contest plea to the possession charge, but maintained that he did not possess the firearm and reserved the right to appeal that issue.

At the sentencing, the defendant moved to withdraw his plea. The court denied the motion, adjudicated him guilty of the possession charge, and sentenced him to twelve years with a three-year mandatory minimum. The defendant argues that because the jury did not find him in “actual” possession of the firearm, the court lacked the requisite finding to impose the mandatory minimum three-year sentence. We agree.

The State charged the defendant with possession of a firearm by a convicted felon. That offense is proven by either actual or constructive possession. James v. State, 868 So. 2d 1242, 1245 (Fla. 4th DCA 2004). To impose a three-year mandatory minimum sentence, however, the factfinder must [*4] make a specific finding of actual possession. § 775.087(2)(a)1.r., Fla. Stat. (2004) see, e.g., Bundrage v. State, 814 So. 2d 1133, 1135 (Fla. 2d DCA 2002) (there must be express finding of actual possession to enhance the sentence); Johnson v. State, 855 So. 2d 218, 222 (Fla. 5th DCA 2003) (actual possession for the purposes of sentence enhancement means “carried on his person.”).

Here, the special interrogatory asked: “If you find the defendant not guilty above, do you find that he possessed a ‘firearm’?” The jury answered affirmatively, but circled “joint possession” as it was defined. Because joint possession could be constructive rather than actual, the requisite finding of actual possession was lacking. Absent that finding the mandatory minimum sentence must be vacated.

Reversed and Remanded to strike the three-year mandatory minimum.

Stone and Farmer, JJ., concur.

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TROY C. GAVINS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D05-2445

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

February 28, 2007, Opinion Filed

PRIOR HISTORY: [*1] An appeal from the Circuit Court for Walton County. William F. Stone, Judge. Gavins v. State, 2006 Fla. App. LEXIS 21351 (Fla. Dist. Ct. App. 1st Dist., Dec. 13, 2006)

DISPOSITION: AFFIRMED in part, REVERSED in part, and REMANDED.

COUNSEL: Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.

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

OPINION BY: BROWNING

OPINION: OPINION ON MOTION FOR CLARIFICATION

BROWNING, C.J.

We withdraw our previous opinion in Gavin v. State, 2006 Fla. App. LEXIS 21351, 31 Fla. L. Weekly D3107 (Fla. 1st DCA Dec. 13, 2006), and submit the following as the opinion of the court. We affirm, without comment, the trial court’s amended judgment and sentence, except as to a scrivener’s error, which we remand for correction. The trial court incorrectly awarded prison credit “for time served and unforfeited gain time previously awarded on counts VI, VII and VIII.” We reverse and remand with instructions to award credits earned [*2] while serving the sentences in counts I-V, IX, and X against the newly imposed sentences in counts VI-VIII.

AFFIRMED in part, REVERSED in part, and REMANDED.

KAHN and DAVIS, JJ., CONCUR.

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HILBERTO CEDILLO, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-804

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 28, 2007, 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; Krista Marx, Judge; L.T. Case No. 03CF003389A02.

DISPOSITION: Reversed and Remanded.

COUNSEL: Kelly V. Landers, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Monique E. L’Italien, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: Shahood, J. Stevenson, C.J., and Klein, J., concur.

OPINION BY: Shahood

OPINION: Shahood, J.

Hilberto Cedillo (”appellant”) was found guilty, as charged, by a jury of carjacking, resisting a law enforcement officer with violence, battery on a law enforcement officer, and felony battery. Appellant claims the trial court abused its discretion in allowing hearsay testimony from which the jury could infer that a non-testifying witness implicated appellant in the crime. We agree and reverse and remand for a new trial.

The investigating officer in the case, Detective Fresneda, testified that he interviewed a woman named Laurie Marzulli during the course of his investigation. Defense counsel objected, and a sidebar conference was held. Defense counsel expressed concern that [*2] the prosecutor was going to elicit testimony that Marzulli told Detective Fresneda that she got the victim’s car from appellant, thus implicating appellant in the crime. The prosecutor responded that she would not do that. The prosecutor continued the direct testimony of Detective Fresneda as follows:

[PROSECUTOR]: Detective Fresneda, without telling us what Laurie Marzulli told you, you cannot tell me because its hearsay. Tell me did you develop a suspect on the case, on the incident that occurred on January 22, 2003?

A: Yes I did.

Detective Fresneda then testified that he placed the suspect’s picture into a photographic lineup and the victim identified the suspect, appellant, out of that lineup.

Appellant argues that it was error for the trial court to allow the prosecution to present testimony from Detective Fresneda that appellant became a suspect in the case after Detective Fresneda interviewed Marzulli. Appellant claims this was improper hearsay evidence from which the jury could infer that Marzulli, a non-testifying witness, made statements implicating appellant in the crime. The State argues that the testimony appellant complains of does not meet the [*3] statutory definition of hearsay.

Hearsay is defined by statute as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2005). Marzulli was the declarant in this situation. The State is correct that Detective Fresneda never testified to any specific statement that Marzulli made to him, regardless of any reasonable inferences that could be drawn from Detective Fresneda’s testimony. However, this does not end the inquiry. Appellant relies upon a line of cases that have addressed the danger of introducing information supplied by a non-testifying witness that the defendant committed the crime. See, e.g., State v. Baird, 572 So. 2d 904 (Fla. 1990); Schaffer v. State, 769 So. 2d 496 (Fla. 4th DCA 2000).

This court examined the issue recently in Stokes v. State, 914 So. 2d 514 (Fla. 4th DCA 2005). In Stokes, appellant claimed the trial court erred in allowing the investigating detective to testify that appellant became a suspect after the detective interviewed a number of other [*4] people. Id. at 517. We identified the danger of the testimony as the possibility the jury could infer that the non-testifying witnesses the detective interviewed made accusatory statements or gave police information about the defendant’s involvement that was not presented to the jury. Id. The State argued that the detective’s testimony was admissible to show the defendant became a suspect in the course of the police investigation. We rejected the State’s argument on the reasoning that ‘”an alleged sequence of events leading to an investigation and an arrest is not a material issue in this type of case. Therefore, there is no relevancy for such testimony to prove or establish such a nonissue.”‘ Id. (quoting Keen v. State, 775 So. 2d 263, 274 (Fla. 2000)). We found the testimony impermissible hearsay and reversed and remanded for a new trial. Id.

Here, as in Stokes, the trial court erred in allowing the police officer to provide testimony implying that a non-testifying witness made accusatory statements against the defendant. “Where the implication from in-court testimony is that a non-testifying witness has made an out-of-court statement [*5] offered to prove the defendant’s guilt, the testimony is not admissible.” Schaffer, 769 So. 2d at 498. The sequence of events of the investigation leading to appellant’s arrest was not a material issue in the case. Contrary to the State’s argument, the officer’s testimony is still properly characterized as hearsay even though the specific statement of the non-testifying witness is not repeated. Id. at 499 (citing Postell v. State, 398 So. 2d 851, 854 (Fla. 3d DCA 1981)).

The State made the accusatory implication established by Detective Fresneda’s hearsay testimony a significant feature of the trial in order to link appellant to the crime. For example, the officer who arrested Marzulli described how he discovered her driving the victim’s car. In addition, the prosecutor directly focused on Detective Fresneda’s hearsay testimony during closing argument, telling the jury it was unlikely Marzulli would falsely accuse appellant of stealing the car just to spite him. The State has not met its burden to prove that the error was harmless. See State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986).

We find the remaining issues [*6] raised by appellant to be without merit, but reverse and remand for a new trial on the issue addressed in this opinion.

Reversed and Remanded.

Stevenson, C.J., and Klein, J., concur.

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JOSEPH RIOUX, Petitioner, v. STATE OF FLORIDA, Respondent.

No. 4D06-3313

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 28, 2007, Decided

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

PRIOR HISTORY: Petition alleging ineffective assistance of counsel to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Stephen A. Rapp, Judge; L.T. Case No. 01-13005 CFA02. Rioux v. State, 908 So. 2d 1079, 2005 Fla. App. LEXIS 12673 (Fla. Dist. Ct. App. 4th Dist., 2005)

COUNSEL: Joseph Rioux, Clermont, Pro se.

No response required for respondent.

JUDGES: GUNTHER, STONE and WARNER, JJ., concur.

OPINION: PER CURIAM.

We treat this petition for habeas corpus as a petition for mandamus, because Petitioner seeks to compel appellate counsel to turn over “all files, records, transcripts, notes, letters from appellant or anyone pertaining to instant case.” This claim is not properly brought in this court. Dumas v. Marrero, 864 So. 2d 531, 532 (Fla. 5th DCA 2004) (holding that appellate court is not the proper forum to raise a claim that counsel failed to turn over records because appellate court does not conduct evidentiary proceedings or factfinding). Further, as drafted, the claim is too vague to be acted upon. Id. (finding claim for “records, files, and or documents” was too vague).

Petitioner must specifically identify the records he claims were not turned over and seek relief in the [*2] trial court. See Thompson v. Unterberger, 577 So. 2d 684 (Fla. 2d DCA 1991) (holding, on appeal of denial of mandamus petition in the trial court, that appointed appellate counsel should not be compelled to produce “case records” without charge until petitioner specifically identifies the records and demonstrates that they are his personal property (e.g., produced at public expense) and not counsel’s work product).

We therefore dismiss the petition without prejudice to his right to seek relief in circuit court.

GUNTHER, STONE and WARNER, JJ., concur.

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IVORY ARNOLD, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-2827

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

February 28, 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 Taylor County. James Roy Bean, Judge.

DISPOSITION: REVERSED AND REMANDED.

COUNSEL: Ivory Arnold, Pro se, appellant.

Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES: BARFIELD, BENTON, and POLSTON, JJ., CONCUR.

OPINION: PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800. Because the trial court failed to attach portions of the record that demonstrate the appellant’s motion was successive, we reverse.

In his motion for postconviction relief, the appellant alleges that the trial court failed to orally pronounce him a habitual felony offender as required by Ashley v. State, 850 So. 2d 1265 (Fla. 2003). The trial court summarily denied the appellant’s motion finding that it was successive because the appellant had raised this claim in a prior rule 3.800 motion. However, the trial court provided no record attachments to support its finding. Therefore, [*2] we reverse the lower court’s summary denial of the appellant’s motion and remand to the trial court to address the appellant’s claim on the merits or provide record attachments that demonstrate the successiveness of the appellant’s claim. See Maddox v. State, 870 So. 2d 956 (Fla. 1st DCA 2004).

REVERSED AND REMANDED.

BARFIELD, BENTON, and POLSTON, JJ., CONCUR.

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