Florida Criminal Law Opinions

STATE OF FLORIDA, Appellant, v. JAMES LAIRD WOLDRIDGE, Appellee.

Case No. 2D06-2466

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 23, 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 Hillsborough County; Wayne S. Timmerman, Judge.

COUNSEL: Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.

Joseph A. Eustace, Jr., of Anthony J. LaSpada, P.A., Tampa, for Appellee.

JUDGES: NORTHCUTT and LaROSE, JJ., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

OPINION: PER CURIAM.

The State appeals the trial court’s order granting James Woldridge’s motion to suppress evidence seized pursuant to a search warrant for his residence. The trial court found that the warrant application contained insufficient information about the source of a tip to establish probable cause. Because the trial court focused its attention on an entity that was not the actual source of the tip, the trial court erred in finding that the magistrate abused his discretion in issuing the warrant. Accordingly, we reverse.

Woldridge was charged by information with ten counts of possession of child pornography in violation of section 827.071(5), Florida Statutes (2004). He filed a motion to suppress the evidence [*2] seized from his residence on the grounds that the information contained in the affidavit for the search warrant was legally insufficient to support a finding of probable cause.

The affidavit supporting the search warrant application related that Officer Margaret Grow of the Hillsborough County Sheriff’s Office had received four reports from the National Center for Missing and Exploited Children (NCMEC) which related that America Online (AOL) had reported that an AOL user with a specific screen name had attempted to e-mail files containing child pornography. After receiving the reports and reviewing the images, Grow subpoenaed AOL for the subscriber information for the specified screen name. In response to the subpoena, AOL identified Woldridge as the account holder of the screen name. Grow’s affidavit then detailed the additional investigation she conducted to confirm where Woldridge was living and receiving internet service. It also detailed Grow’s background in the investigation of on-line child pornography cases and provided background information concerning the characteristics of individuals who use the internet to view and exchange “cyberporn.”

The warrant application sought [*3] a warrant to search Woldridge’s home for “computer equipment,” which it defined to include various computer and electronic “storage devices.” After reviewing the warrant application, including the affidavit prepared by Grow, the magistrate issued a search warrant for Woldridge’s home. Pursuant to the search warrant, officers seized Woldridge’s computer and found various pornographic images of children on the hard drive.

In Woldridge’s motion to suppress the evidence seized pursuant to the search warrant, he argued that the warrant application was insufficient to establish probable cause because the affidavit in support of the application contained no information concerning the veracity or basis of knowledge of NCMEC, which he identified as the alleged tipster. The State, on the other hand, argued that AOL was the only tipster involved and that its tip was presumptively reliable because AOL was a “citizen-informant.” The trial court granted the motion to suppress, finding the application legally insufficient to establish probable cause because the affidavit did not contain sufficient information to establish the reliability of NCMEC. This appeal followed.

For a warrant to issue, [*4] the issuing magistrate must find probable cause to believe that the contraband is presently in the residence. State v. Bernie, 472 So. 2d 1243, 1246 (Fla. 2d DCA 1985).

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); see also Alabama v. White, 496 U.S. 325, 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990).

State v. Gonzalez, 884 So. 2d 330, 333 (Fla. 2d DCA 2004); see also Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). Because the determination of probable cause must be made from the four corners of the affidavit, the affidavit itself must contain either information concerning the informant’s veracity or sufficient independent corroborating evidence. Pagan, 830 So. 2d at 806-07. [*5]

When a trial court is called upon to review a magistrate’s decision to issue a search warrant, the trial court does not conduct a de novo determination of whether there was probable cause to issue the warrant. Bonilla v. State, 579 So. 2d 802, 805 (Fla. 5th DCA 1991). Instead, the trial court determines only whether substantial evidence supported the magistrate’s determination that probable cause existed. Id.; see also Gonzalez, 884 So. 2d at 333; Garcia v. State, 872 So. 2d 326, 329 (Fla. 2d DCA 2004). Thus, the trial court should not disturb an issuing magistrate’s determination absent a clear demonstration that the magistrate abused his discretion in relying on the information in the affidavit supporting the warrant application to find probable cause. State v. Price, 564 So. 2d 1239, 1241 (Fla. 5th DCA 1990).

In this appeal, the State argues that the trial court erred in focusing its attention on the reliability of NCMEC. As it did in the trial court, the State argues that AOL was the only tipster involved and that its tip was presumptively reliable because AOL was a “citizen informant.” We agree that AOL [*6] was the only tipster. Additionally, although we hesitate to hold that a corporation can be a citizen informant, we hold that AOL’s compliance with a federal law mandating that it report Woldridge’s activities to NCMEC provides a presumption of reliability akin to that afforded a citizen informant. Accordingly, we hold that the affidavit at issue provided probable cause to issue the search warrant.

First, it is clear from the search warrant affidavit that the tip came from AOL, not NCMEC. The pertinent part of the affidavit states:

Affiant received four reports from the National Center for Missing and Exploited Children. The four reports from the National Center for Missing and Exploited Children listed the Internet Service Provider America Online (AOL) reporting an AOL user twithtt@aol.com who attempted to email files depicting child pornography.

(Emphasis added.) From this language, it is clear that the relevant information originated with AOL, not NCMEC. Thus, AOL was the only “tipster” involved, and the critical question for the issuing magistrate was the reliability of AOL, not NCMEC.

Second, the reliability of the tip from AOL can be presumed because federal [*7] law compelled AOL’s report to NCMEC. Although not mentioned by either party in their briefs, AOL was required to report the attempted transmission of these child pornography images to NCMEC for forwarding to law enforcement. Under 42 U.S.C. § 13032(b)(1) (2004), any internet service provider that obtains facts from which a violation of federal child pornography laws is apparent must report the facts and circumstances to the Cyber Tip Line at NCMEC. NCMEC then forwards the reported information to both state and federal law enforcement officials. 42 U.S.C. § 13032(b)(1), (b)(3). An internet service provider that fails to report such facts is subject to significant fines. 42 U.S.C. § 13032(b)(4).

We find that this statutory reporting requirement supports the reliability of AOL’s tip. Contrary to Woldridge’s position at oral argument, the possibility of the imposition of fines for failing to report the transmission of child pornography does not make AOL’s tip less reliable. Nothing about the possible imposition of fines would encourage AOL to make false reports to NCMEC. Further, while it is true that the search [*8] warrant affidavit does not reference this statutory mandate, the magistrate and the trial court, like all citizens, are charged with knowing the applicable law.

In addition, AOL was acting in a manner analogous to that of a citizen informant when it forwarded the information to NCMEC. “A citizen-informant is one who is ‘motivated not by pecuniary gain, but by the desire to further justice.’ ” State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001) (quoting State v. Evans, 692 So. 2d 216, 219 (Fla. 4th DCA 1997) (quoting State v. Talbott, 425 So. 2d 600, 602 n.1 (Fla. 4th DCA 1982), and Barfield v. State, 396 So. 2d 793, 796 (Fla. 1st DCA 1981))). A citizen informant is one who “by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty.” Evans, 692 So. 2d at 219 (quoting Wayne R. LaFave, Search and Seizure § 3.3 (3d ed. 1996)). As a general rule, the reliability of a tip from a citizen informant is presumed, and corroboration of the tip is not generally required. Maynard, 783 So. 2d at 228; [*9] Gonzalez, 884 So. 2d at 334.

Here, AOL discovered pornographic images of children attached to an e-mail that an AOL subscriber with a particular screen name attempted to transmit through the AOL server. At that point, AOL was in possession of the images, which it forwarded along with the subscriber’s screen name to law enforcement through NCMEC. Thus, the information did not come to law enforcement from an anonymous source; it came from a recognized, well-established internet service provider. Moreover, AOL essentially witnessed the crime when it received the images from the subscriber. Under these circumstances, AOL was in substantially the same position as a citizen informant, whose reliability can be presumed for purposes of the magistrate’s probable cause determination. See State v. Sisson, 883 A.2d 868, 880 (Del. Super. Ct. 2005), aff’d, 903 A.2d 288 (Del. 2006).

In an effort to support the trial court’s ruling, Woldridge argues that the State was obligated to include in the search warrant the name of the actual AOL employee who identified the images and information concerning that employee’s reliability. However, Woldridge [*10] points to no case supporting his position. Instead, the only reported authority that we have found concerning the issue specifically rejects Woldridge’s argument.

In United States v. Kling, 2006 WL 1980179 (N.D. Iowa July 12, 2006), the defendant, who was charged with possession of child pornography, moved to suppress the evidence seized pursuant to a search warrant, arguing that the warrant application was insufficient. The warrant affidavit in that case stated that the internet service provider Yahoo had reported to NCMEC that an individual using a specific email address had “uploaded or transmitted” images of child pornography. Id. at * 5. NCMEC forwarded the information to police, who served subpoenas on Yahoo to obtain information concerning the specified email address. Id. The affidavit then explained how the officers had located and verified the residence at which Kling was living and receiving internet service. Id.

In his motion to suppress, Kling argued that the warrant failed to establish the reliability of the information provided by Yahoo because it did not specify the identity of the particular Yahoo employee who provided the information [*11] nor did it give any information regarding that person’s reliability. In rejecting this argument, the court first noted that Kling cited to no case, nor could it find one, that would support “the proposition that information received from an Internet Service Provider may be suspect unless the veracity of the specific individual who provides the information is supported in the warrant application.” Id. at * 6. The court then noted:

Courts routinely consider information provided by ISPs and e-mail providers just as they consider information provided by financial institutions, credit card issuers, and utility companies. . . . Except in unusual circumstances, courts do not require information regarding the credibility of a records custodian or other company employee who verifies business records. What the agents received from Yahoo was just that-business records of who had accessed a Yahoo group and what those individuals had uploaded or downloaded from the group’s site.

Id.

Here, Woldridge, like Kling, has failed to cite any case, and this court has been unable to find one, that requires a search warrant affidavit to contain information regarding the reliability [*12] of the custodian of business records when those records are used to supply probable cause for a search warrant. In this case, AOL, as required by federal law, provided its business records concerning the content of specific e-mails from a specific subscriber to NCMEC for it to forward to law enforcement. Woldridge has offered no basis for the trial court or this court to conclude that the business records provided by AOL were unreliable. Under these circumstances, there was no basis for the trial court to find that the magistrate abused his discretion in issuing the search warrant based on the information provided by AOL.

Woldridge also argues that the trial court’s factual findings concerning the omission of the information concerning NCMEC from the affidavit are entitled to deference. Woldridge is correct on this issue, and this court does not dispute those factual findings. However, the trial court’s conclusion that those omissions resulted in the search warrant application being insufficient to establish probable cause is subject to de novo review. Pagan, 830 So. 2d at 806; Gonzalez, 884 So. 2d at 333. Here, because the actual tip came from AOL, [*13] the omissions identified by the trial court relating to NCMEC were immaterial to the determination of probable cause. Accordingly, the trial court’s legal conclusion that the affidavit did not establish probable cause was incorrect, and thus it erred in concluding that the magistrate abused his discretion in issuing the warrant. Therefore, we reverse the order suppressing the evidence and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

JAMES HIGGS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-1193

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 23, 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 Pinellas County; W. Douglas Baird, Judge.

COUNSEL: James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

JUDGES: LaROSE, Judge. CANADY, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

OPINION BY: LaROSE

OPINION: LaROSE, Judge.

James Higgs appeals his convictions for fleeing to elude at high speed with lights and siren activated (count one), driving while license revoked (count two), reckless driving (count three), and driving with an altered temporary tag (count four). The trial court sentenced Mr. Higgs to five years in prison, concurrent, on counts one and two and to time served on counts three and four. Mr. Higgs argues that the trial court erred in refusing to instruct the jury, on count one, on the permissive lesser included offense of reckless driving. We affirm.

The State argues that Mr. Higgs did not preserve the issue for review. According to the State, he abandoned his request for the instruction. [*2] The denial of a jury instruction request is preserved “where the record clearly show[s] that defense counsel requested a specific instruction and the trial court ‘clearly understood the request and just as clearly denied the request.’” Carpenter v. State, 785 So. 2d 1182, 1199 (Fla. 2001) (quoting State v. Heathcoat, 442 So. 2d 955, 955-56 (Fla. 1983)); Austin v. State, 406 So. 2d 1128, 1132 (Fla. 4th DCA 1981). Our record reflects that Mr. Higgs requested a reckless driving instruction for count one and the trial court unequivocally denied the request. Accordingly, the issue is preserved for our review.

Addressing the merits of Mr. Higgs’ claim, we note that

[a] permissive lesser included offense is an offense that may or may not be included in the offense charged depending on the pleadings and the evidence. . . .

. . . .

An instruction on a permissive lesser included offense must be given when the pleadings and evidence demonstrate that the lesser offense is included in the charged offense.

Russ v. State, 612 So. 2d 688, 689 (Fla. 2d DCA 1993) (citing Amado v. State, 585 So. 2d 282 (Fla. 1991)); [*3] see also Fla. R. Crim. P. 3.510(b). n1 The pleadings and the evidence adduced at trial supported the requested instruction. Nevertheless, the trial court’s refusal to give the instruction does not compel reversal.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n1 Rule 3.510. On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:

. . . .

(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

In addition to an instruction on the charged offense, see § 316. 1935 (3)(a), Fla. Stat. (1995), the trial court instructed the jury on the category one included lesser offenses of (1) fleeing to elude a law enforcement officer with lights and siren (§ 316. 1935 (2)) and (2) fleeing to elude a law enforcement officer (§ [*4] 316. 1935 (1)). See In re Standard Jury Instructions-Criminal Cases (99-1), 765 So. 2d 692, 704 (Fla. 2000); Fla. Std. Jury Inst. (Crim.); Schedule of Lesser Included Offenses. Reckless driving is three steps removed from the charged offense; the trial court gave instructions on lesser included offenses just one step removed. Because the jury declined to exercise its “pardon power” by convicting Mr. Higgs of a violation of section 316. 1935 (2) or section 316. 1935 (1), the trial court’s refusal to give the requested instruction is harmless. See State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978); Fernandez v. State, 570 So. 2d 1008, 1011 (Fla. 2d DCA 1990); Sherrer v. State, 898 So. 2d 260, 261-62 (Fla. 1st DCA 2005).

Affirmed.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

TRACY W. WILSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-931

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

February 23, 2007, Opinion Filed

PRIOR HISTORY: [*1] Appeal from the Circuit Court for Lake County, G. Richard Singeltary, Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Michael H. Hatfield of Hatfield & Baxley, P.A., Umatilla, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES: TORPY, J. GRIFFIN, J., concurs. MONACO, J., concurs and concurs specially with opinion.

OPINION BY: TORPY

OPINION: TORPY, J.

Appellant challenges the denial of his dispositive motion to suppress marijuana, paraphernalia and a firearm found during a warrantless search of his home and greenhouse. Concluding that sheriff’s agents did not infringe upon Appellant’s constitutional rights before Appellant voluntarily consented to the search of his residence and greenhouse, we affirm.

Appellant owns and lives on a 36-acre parcel of land in Lake County. A natural vegetative buffer makes it nearly impossible to see the interior of the property from its boundary lines, and a perimeter fence entirely surrounds the property except for a drive gate. The fence is primarily “rail” fencing, but one section of the fence is constructed of barbed wire. The drive gate, located near the front of the property, [*2] is usually kept closed. A “No Trespassing” sign is conspicuously displayed next to the gate.

Approximately 100 feet behind Appellant’s residence is a greenhouse constructed of steel framing covered with semi-transparent plastic material. The greenhouse is only partially visible from the residence. There is no doorway in the greenhouse. Ingress and egress is accomplished by lifting the plastic sides. The sides of the greenhouse are covered with nursery shade-cloth, which renders it difficult to see the interior of the greenhouse. Electrical power for the greenhouse is provided via an extension cord connected to Appellant’s residence.

Approximately ten days before Appellant’s arrest, one of his neighbors entered his property to look for the neighbor’s dog. At that time, the neighbor observed the greenhouse, which the neighbor believed contained marijuana. The neighbor notified sheriff’s agents who began a surveillance of Appellant’s property over the course of several days.

Because sheriff’s agents could not see the greenhouse from the boundary of the property, they surreptitiously entered the property by climbing over the fence and traversing the property up to the greenhouse. To [*3] view the contents of the greenhouse, it was necessary that the agents get very close to the greenhouse and touch its exterior. They wore camouflage suits to avoid detection. On the first occasion of their entry to the property, the agents observed more than 200 marijuana plants in the greenhouse, which they were able to view through a two-foot wide void in the covering on the greenhouse wall. After confirming that marijuana was growing in the greenhouse, the agents returned and entered the property on three more occasions over several days.

On the fourth occasion of their surveillance they were detected by Appellant’s dog. As Appellant was walking in the area of the greenhouse, his dog alerted to the presence of one sheriff’s agent who was crawling on the ground. When Appellant and his dog got close to the agent, the agent, Detective Padgett, rose to his feet, identified himself as a law enforcement officer, pointed a gun at Appellant, ordered Appellant to the ground and threatened to shoot Appellant’s dog if Appellant did not control the dog. Padgett held Appellant at bay for several minutes until two other law enforcement officers arrived, at which time the agents instructed Appellant [*4] to get off the ground and keep his hands on his head. Appellant was “walked” to the front of his mobile home.

Once at the front of the mobile home, the agents told Appellant that they had reason to believe he was growing marijuana. They advised him of his Miranda rights, which he waived, and they asked for permission to search his residence and greenhouse. Appellant agreed and executed a written form that permitted the agents to conduct the search, which revealed the contraband and firearm. Appellant was charged with possession of a firearm by a convicted felon and several drug related counts.

The trial court concluded that the entry by officers onto the property was lawful because the greenhouse and surrounding field were not within the curtilage of the residence. Furthermore, the lower court concluded that Appellant’s consent to search was freely and voluntarily given. As a result, the court denied Appellant’s motion to suppress. Thereafter, Appellant entered a plea to the charges while preserving his right to appeal the dispositive issue of whether the evidence should have been suppressed.

On appeal, Appellant argues that the agents infringed upon his Fourth Amendment rights [*5] by crossing his fence, traversing his field and peering into the greenhouse. The State responds that these actions did not amount to a violation of the Fourth Amendment because the agents never penetrated the curtilage of the residence. n1 We are constrained to agree with the State based on the Supreme Court’s holding in United States v. Dunn, 480 U.S. 294, 94 L. Ed. 2d 326 (1987).

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n1 Although not argued by Appellant here or below, we note parenthetically that, at first blush, the fact that State agents apparently committed criminal trespass by entering fenced lands without consent presents a compelling argument for exclusion of the fruits of this unlawful intrusion. See § 810.09(1)(a)1., Fla. Stat. (2005) (providing entry upon fenced lands is first-degree misdemeanor). As Justice Marshall stated in Oliver v. United States, 466 U.S. 170, 191, 80 L. Ed. 2d 214 (1984):

[P]ositive law not only recognizes the legitimacy of [defendants'] insistence that strangers keep off their land, but subjects those who refuse to respect their wishes to the most severe of penalties – criminal liability. Under these circumstances, it is hard to credit the [assertion of the majority] that [defendants'] expectations of privacy were not of a sort that society is prepared to recognize as reasonable.

This dissenting argument, however, failed to carry the day with the majority of our high court and apparently is not the law. See Sarantopoulos v. State, 629 So. 2d 121, 123 (Fla. 1993) (recognizing that majority of Oliver court implicitly rejected Marshall’s argument). Although we do not condone police behavior that amounts to criminal trespass, it appears that exclusion of the evidence discovered as a result is not an available remedy to redress this wrongful conduct.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - – [*6]

In Dunn, DEA agents made three warrantless entries onto the defendant’s 198-acre ranch on two consecutive days by crossing over a perimeter fence that completely surrounded the property. Thereafter they walked one-half mile, crossed several barbed wire fences, climbed a wooden fence and peered into the barn using flashlights to view the interior of the locked barn, at which time agents observed an illicit drug laboratory. The barn, which was 60 yards from the defendant’s residence, was not visible from the perimeter of the property because the clearing in which the barn was situated was completely surrounded by woods. The Supreme Court concluded that these actions did not constitute a Fourth Amendment violation because the barn was not within the curtilage of the residence. Therefore, the defendant did not enjoy an expectation of privacy in the area immediately outside the barn.

In concluding as it did, the Dunn court announced a four-part test to use in determining whether an area is protected “curtilage.” The Court emphasized, however, that the “centrally relevant consideration [in this determination is] whether the area in question is so intimately tied to the home itself [*7] that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301. Our application of the Dunn four-part test here, with emphasis on the “centrally relevant consideration,” leads us to the inescapable conclusion that Appellant’s greenhouse, like the barn in Dunn, does not lie within the curtilage of his residence.

The first Dunn factor, the distance between the home and the area claimed to be curtilage, is, in this case, unhelpful because the distance of 100 feet supports no inference either way. Likewise, the second Dunn factor, whether the area is included within an enclosure surrounding the home, is of little import here because the perimeter fence does not provide a demarcation point separating the residence and curtilage from the remaining property. See United States v. Taylor, 458 F.3d 1201 (11th Cir. 2006) (holding perimeter fence around five-acre parcel did not bring entire parcel within curtilage of residence).

The third factor, however, suggests strongly that the greenhouse at issue here did not fall within the protected curtilage. This factor requires that we analyze the use to which the area is put to [*8] determine if it was “so associated with the activities and privacies of domestic life” that it should be “deemed” a part of the residence. Dunn, 480 U.S. at 302. Here, as in Dunn, the only use to which the structure was put was the manufacture of illicit drugs, a use completely disassociated with the “privacies of the home.” This factor, therefore, militates in favor of the government.

The fourth and final Dunn factor involves an examination of the steps taken by Appellant to “protect the area from observation by people passing by.” Id. at 301. In Dunn, the barn was locked, enclosed within a wooden fence, barbed wire fence and a perimeter fence, yet the Court concluded that the defendant had done “little to protect the barn area from observation by those standing in the open fields.” Id. at 303. Here, the greenhouse was protected to a lesser degree than the barn in Dunn. It was not locked, it was constructed of semi-transparent material with a two-foot void, and only one fence, a standard rail fence, separated it from adjoining lands. Based on a comparison of the facts in Dunn, we must conclude that the fourth [*9] Dunn factor also favors the government.

The actions of the agents in approaching and peering into the greenhouse, therefore, did not infringe upon any protected constitutional right of Appellant because the area was outside the protected curtilage of the residence. Having reached this conclusion does not end our inquiry, however, because here, unlike Dunn, agents did not secure a search warrant before seizing the marijuana from the greenhouse and searching the residence. n2 Instead, they relied upon Appellant’s consent to search. Appellant admitted that he gave written consent to search but testified that it was not voluntarily given because he was “scared” when he signed the consent form. The trial court rejected this claim, finding that the consent was voluntary. In reviewing this decision, our function is to determine whether this factual finding was clearly erroneous. State v. Breed, 917 So. 2d 206, 209 (Fla. 5th DCA 2005); United States v. Van Shutters, 163 F.3d 331 (6th Cir. 1998).

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n2 Although a warrant was unnecessary to traverse the open field and peer into the greenhouse, under Dunn, in the absence of consent or other exigent circumstances, a warrant might have been required to enter the greenhouse and seize the plants. But see United States v. Pennington, 287 F.3d 739, 745-46 (8th Cir. 2002) (citing Dunn for proposition that open fields doctrine does not authorize warrantless search of man-made structure within field, but nevertheless affirming warrantless search of bunker because unlocked and within field). Because we have determined that the seizure was preceded by Appellant’s valid consent to search, we need not reach a conclusion on this issue.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - – [*10]

Below, the State had the burden to show that consent to search was voluntary by a preponderance of the evidence. Reynolds v. State, 592 So. 2d 1082 (Fla. 1992). n3 This is a question of fact based upon the totality of the circumstances. Davis v. State, 594 So. 2d 264 (Fla. 1992). To conclude that a search is involuntary the court must find that the defendant’s “will ha(d) been overborne and his capacity for self-determination critically impaired.” United States v. Watson, 423 U.S. 411, 424, 46 L. Ed. 2d 598 (1976) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 36 L. Ed. 2d 854 (1973)). In making this determination, the courts have relied upon a variety of factors that address both the “characteristics of the accused and the details of the interrogation.” Schneckloth, 412 U.S. at 226.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n3 If the consent is preceded by an infringement of constitutional rights, such as an unlawful search or detention, the State has the burden to prove voluntary consent by clear and convincing evidence. Reynolds, 592 So. 2d at 1085.

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

The factors relevant here, which bear on the characteristics of the accused, include his age, whether he had a prior criminal history — the presumption being that one who has prior criminal arrests knows his legal rights — and whether there is evidence that he was intoxicated or suffering from a mental deficiency that impaired his ability to make an intelligent decision. Watson, 423 U.S. at 424; United States v. Bradley, 234 F.3d 363, 366 (8th Cir. 2000).

As to the details of the interrogation, relevant factors considered by the courts include whether the defendant was advised of his Miranda rights, whether the defendant executed a written consent form, whether he was promised anything or threatened, the length of time police interrogated him before he consented, the location of the encounter and whether the defendant was in custody at the time he gave consent. Watson, 423 U.S. at 424; United States v. Navarro, 90 F.3d 1245, 1257 (7th Cir. 1996); United States v. Kon Yu-Leung, 910 F.2d 33, 41 (2d Cir. 1990); Taylor v. State, 855 So. 2d 1, 17 (Fla. 2003).

These factors should [*12] not be applied mechanically and no single factor is dispositive or controlling. United States v. Ponce, 8 F.3d 989, 997 (5th Cir.1993). Applying these factors here, we are unable to conclude that the trial court’s determination was clearly erroneous.

The factors that relate to the characteristics of the accused all weigh in favor of the determination made by the trial judge. Appellant was, at the time, 37 years old. He was no newcomer to the law, having been previously convicted of at least one felony. There is no evidence that he was mentally deficient, intoxicated or incapable of making an intelligent decision.

As to the details of the interrogation, the majority of the factors favor the government’s position. Appellant had been advised of his Miranda rights and agreed to talk to sheriff’s agents without counsel present. He executed a written consent form. He was on his own property during daytime hours, not in a more coercive environment such as a police station or dark alley. The encounter was relatively short, and he was neither threatened nor promised anything to induce his consent.

Although he was not told he was under arrest or placed in handcuffs, we [*13] accept for the sake of argument that Appellant was in “custody.” Furthermore, having been accosted at gunpoint by multiple officers, we do not doubt that Appellant’s anxiety level was near its apex, especially given his knowledge that he had been caught red-handed. After sheriff’s agents initially confronted Appellant, however, they led him to his front porch, permitted him to sit down, at which time they explained the reason for their presence, advised him of his rights and asked for his consent to search. At the hearing on Appellant’s motion, when offered multiple opportunities to explain why he thought that his written consent was not voluntarily given, he offered only that he was “scared,” testimony that the trial court was certainly free to reject. Even if true, we suspect that this reaction is common among those who endure the stress of an arrest. It by no means compels, as a legal conclusion, that Appellant’s “will ha[d] been overborne and his capacity for self-determination critically impaired,” or that Appellant was “unable in the face of custodial arrest to exercise free choice.” Watson, 423 U.S. at 424; see also Schneckloth, 412 U.S. at 225; [*14] United States v. Crespo, 834 F.2d 267, 271 (2d Cir. 1987), cert. denied, 485 U.S. 1007, 99 L. Ed. 2d 700 (1988); United States v. Valencia, 645 F.2d 1158, 1165 (2d Cir. 1980).

Although reasonable judges could differ when balancing the factors to be considered here, we are constrained to side with the trial judge unless we can say that his factual determination was clearly erroneous. Under this standard of review, we cannot so conclude.

AFFIRMED.

GRIFFIN, J., concurs.

MONACO, J., concurs and concurs specially with opinion.

CONCUR BY: MONACO

CONCUR: MONACO, J., concurring.

While I fully concur in the well-reasoned opinion of the court in this case, I must say that I find it unnerving that despite the criminal trespass by state agents onto the land of the appellant, the search here is constitutional under the Fourth Amendment. Yet, that appears to be the state of the law as indicated in United States v. Dunn, 480 U.S. 294, 94 L. Ed. 2d 326 (1987), and Oliver v. United States, 466 U.S. 170, 80 L. Ed. 2d 214 (1984), and we are bound by that result. Frankly, however, I think Justice Marshall got [*15] it right in Oliver.

Courtesy of David Edelstein

Bookmark It

Hide Sites

DEAN A. RUDD, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-2341

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

February 23, 2007, Opinion Filed

PRIOR HISTORY: [*1] Appeal from the Circuit Court for Marion County, Jack Singbush, Judge.

DISPOSITION: AFFIRMED AND REMANDED FOR CORRECTION OF CLERICAL ERROR.

COUNSEL: Dean A. Rudd, Raiford, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES: GRIFFIN, ORFINGER and LAWSON, JJ., concur.

OPINION: PER CURIAM.

We affirm the denial of Dean A. Rudd’s petition for writ of habeas corpus as he has shown no entitlement to immediate release. However, our review of the record revealed a clerical error in the sentencing documents. The plea and sentencing transcript clearly reflect that Rudd pled guilty or nolo contendere to six cases then pending in Marion County circuit court. However, the court minutes and sentencing documents erroneously reflect that Rudd entered a plea of guilty or nolo contendere to a seventh case, case no. 42-2004-CF2014, which was also pending against Rudd but was not before the court for disposition. The transcript of the proceedings clearly indicates that Rudd entered no dispositive plea to that case and, therefore, the court had no jurisdiction to enter the judgment and sentence on that case.

In our view, the most [*2] expedient manner with which to handle this matter is to vacate the judgment and sentence in Marion County circuit court case no. 42-2004-CF2014. On remand, the State may proceed against Rudd on that case if it so chooses.

AFFIRMED AND REMANDED FOR CORRECTION OF CLERICAL ERROR.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

LAWRENCE OWENS, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-2715

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 21, 2007, 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; Lee Jay Seidman, Judge; L.T. Case No. 04-005686CF10A.

DISPOSITION: Reversed.

COUNSEL: Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

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

OPINION BY: KLEIN

OPINION: KLEIN, J.

Appellant was convicted of battery on a law enforcement officer and resisting an officer with violence. We reverse for a new trial because an officer responding to a dispatch was permitted to testify as to the contents of the dispatch, which were inadmissible hearsay and prejudicial.

Appellant’s convictions arose out of a domestic disturbance call, when appellant resisted Officer Heinrich’s directions and his physical efforts to subdue him. An officer who was called to the scene was allowed to testify that beforehand he had received a dispatch that an “officer that was fighting with a subject on a domestic.” He was further permitted [*2] to testify that “officer Heinrich got on the radio, advised he needed assistance, immediate backup, that he was violently fighting with a subject.” Officer Heinrich, who had called for help, also testified in a manner consistent with the hearsay testimony of the officer who was being called to the scene.

It is permissible for an officer to testify that a dispatch occurred, in order to explain police action, but the hearsay contents of the dispatch are inadmissible for the purpose of proving the truthfulness of the information. Conley v. State, 620 So. 2d 180 (Fla. 1993); Taylor v. State, 845 So. 2d 301 (Fla. 2d DCA 2003). We are unable to agree with the state that the hearsay testimony was harmless as cumulative to the testimony of Officer Heinrich, because this was a close case, and Officer Heinrich was the only witness to testify that the appellant had struck him and was being combative.

Two other witnesses testified that appellant had come out of an apartment with his hands in the air, that appellant did not hit Officer Heinrich, and that Officer Heinrich fired his taser at appellant. The issue was whether appellant had attacked Officer Heinrich, [*3] justifying the use of the taser, or whether the officer had prematurely used his taser and then attempted to excuse it by claiming that he was attacked first. Under these circumstances we cannot say that the hearsay as to the two dispatches was harmless as being cumulative.

Our conclusion that this requires a new trial makes the other issues raised by appellant moot; however, we note that on retrial the state cannot ask a defense witness, on cross-examination, to read from a transcript of the witness’s 911 call, unless the transcript is authenticated.

Reversed.

HAZOURI and MAY, JJ., concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Andre Adams, Appellant, vs. The State of Florida, Appellee.

No. 3D06-1211

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

February 21, 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, Mary Barzee, Judge. Lower Tribunal No. 01-12764. Adams v. State, 909 So. 2d 963, 2005 Fla. App. LEXIS 13747 (Fla. Dist. Ct. App. 3d Dist., 2005)

COUNSEL: Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Michael E. Hantman and Linda Katz, Assistant Attorneys General, for appellee.

JUDGES: Before RAMIREZ, SUAREZ, and LAGOA, JJ.

OPINION BY: Barbara Lagoa

OPINION: LAGOA, Judge.

Andre Adams (“Defendant”) appeals the denial of his motion to correct an illegal sentence. On appeal, Defendant argues that the trial court’s April 19, 2006 order violated his constitutional right against double jeopardy. We find that Defendant’s rights were not violated and affirm the trial court’s order with regard to this issue. Defendant also argues that the trial court erred by denying his claim that he was not awarded sufficient credit for time served. Because the State conceded below that the error must be corrected if sufficient credit was not awarded, we reverse and remand for a hearing on this issue alone.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant was convicted of robbery and resisting arrest [*2] without violence. During sentencing, the trial court found that Defendant qualified as both a prison releasee reoffender and a violent career criminal. Defendant was sentenced to 40 years imprisonment with a fifteen-year mandatory minimum term as a prison releasee reoffender and sentenced to a 30-year mandatory minimum as a violent career criminal. Defendant received 612 days credit for time served.

On January 4, 2004, Defendant filed a motion to correct illegal sentence pursuant to Rule 3.800(a), Fla. R. Crim. P. The trial court granted the State several extensions to file a response. On March 28, 2006, the trial court orally granted Defendant’s motion as the State had failed to respond, but neither resentenced nor vacated Defendant’s sentence. The trial court also permitted the State to file a motion for reconsideration within one week. Two days after the oral ruling, the State filed a response, which the trial court treated as a motion for reconsideration.

On April 4, 2006, the trial court granted Defendant time to respond to the State’s motion. On April 17, 2006, the Defendant responded to the motion, and on April 19, 2006, the trial court denied [*3] Defendant’s motion to correct illegal sentence.

II. ANALYSIS

On appeal, Defendant argues that the trial court’s subsequent denial of his postconviction motion constituted a resentencing in violation of his right of protection against double jeopardy. In support of this argument, Defendant relies on Pate v. State, 908 So. 2d 613 (Fla. 2d DCA 2005). As the trial court correctly concluded, Pate is not applicable. In Pate, the trial court’s written order granted the Defendant’s motion to correct an illegal sentence, reduced his sentence and ordered his immediate release. Subsequent to the trial court’s written order, the State orally moved for a stay, which the trial court granted. The trial court later issued a second order denying the motion to correct sentence and reinstating the original sentence. The Second District concluded that this violated the constitutional protection against double jeopardy:

Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.

Id. at 614.

Here, unlike in Pate, the record is [*4] clear that, although the trial court granted Defendant’s motion, the trial court did not take the next step of either resentencing or vacating Defendant’s sentence. No new sentence was imposed by the trial court, and Defendant continued to serve his original 40-year sentence. Because the only action taken by the trial court was to grant Defendant’s motion without more, double jeopardy does not attach.

Moreover, the law is clear that when a trial court grants a 3.800 motion, “it has not and [does] not grant the Defendant any collateral relief until it resentences him [as] [t]he order granting the Defendant’s 3.800(a) motion is not a final order, as judicial labor, i.e., resentencing, is still required.” State v. Del Valle, 745 So. 2d 541, 542 (Fla. 4th DCA 1999). Indeed, an order finding that Defendant was entitled to be resentenced, but not imposing a new sentence, is not an appealable final order. See State v. Rudolf, 821 So. 2d 385, 386 (Fla. 2d DCA 2002). As the Second District noted in Rudolf, after a new sentence is imposed the “State [would] have the opportunity to seek review of the sentence when the trial court enters that final [*5] order.” Id. at 386. In this case, as no new sentence was imposed for the State to appeal, it was proper for the State to file a motion for reconsideration.

Accordingly, the trial court’s order denying Defendant’s motion to correct illegal sentence is affirmed in part and reversed in part.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Annier Lorenzo, Appellant, vs. The State of Florida, Appellee.

No. 3D05-2522

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

February 21, 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, Luis M. Garcia, Judge. Lower Tribunal Nos. 04-297, 04-290, 04-291, 04-292, 04-293, 04-299.

DISPOSITION: Affirmed.

COUNSEL: Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

JUDGES: Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.

OPINION BY: ROTHENBERG

OPINION: ROTHENBERG, Judge.

The defendant, Annier Lorenzo (“Lorenzo”), entered nolo contendere pleas on six felony cases, expressly reserving his right to appeal the denial of his motions to suppress statements he made to law enforcement. We affirm.

The instant convictions result from an armed robbery of a Tom Thumb convenience store committed on September 5, 2004, an armed robbery of another Tom Thumb convenience store on September 6, 2004, and four separate burglaries of various business establishments. The events that led to Lorenzo’s arrest began when Officer Carballo, who knew Lorenzo’s family, stopped by Lorenzo’s mother’s home to inquire about a van she had for sale. Lorenzo’s mother [*2] told Officer Carballo that she was concerned that her son was involved in some robberies and was placing himself in danger. Thereafter, Officer Carballo, accompanied by other officers, went to Lorenzo’s brother’s apartment to speak with Lorenzo. After making contact with Lorenzo, it is undisputed that he agreed to speak to them about the September 5th robbery and to accompany them to the police station where he provided them with further information regarding this robbery. It is also undisputed that at no time during Lorenzo’s discussions with the police, which took place at his brother’s apartment and at the police station on September 13, 2004, was he advised of his rights per Miranda. n1

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Initially, Lorenzo told the police that he was at the Tom Thumb store that evening using the restroom but that he had no knowledge of or involvement in a robbery. After several minutes, however, he asked to speak to Officer Carballo alone. [*3] What he told Officer Carballo was that he knew who had committed the robbery. He explained that his friend, Alex Cruz, borrowed his car and had committed the robbery and that Alex had a Russian-made handgun. When asked if he would be willing to accompany them to the station and to give them a more detailed account of the events, Lorenzo willingly agreed, stating that he wanted to “do the right thing.”

Lorenzo was interviewed at the station in an interview room with the door open. He was additionally told that he was not in custody and that he could leave at any time. Lorenzo responded by saying that he understood that he was not in custody and that he wanted to talk to them. These statements and Lorenzo’s acknowledgement that he was aware that he was not under arrest and that he was free to leave were recorded, as were his statements. During this interview, he explained that he went into the Tom Thumb to use the restroom while Alex waited in the car. When he returned to the car, Alex asked him about the clerk. Lorenzo told Alex that the clerk was a female and that she was behind the counter. Alex went into the store. Moments later Alex ran back to the car, threw his gun and some money [*4] into the car and told Lorenzo to “go, get out of here!” Based upon these statements and other information provided by Lorenzo, Alex was arrested and charged as a principal to the robbery.

The following day, law enforcement returned to speak with Lorenzo. Before speaking with him, they advised him of his rights per Miranda. After waiving his rights, Lorenzo admitted to committing a second armed robbery and four burglaries, for which he was subsequently charged.

The issues presented in this appeal are: (1) whether Lorenzo’s statements given on September 13, 2004, without the benefit of his Miranda warnings, were the product of custodial interrogation requiring suppression, and (2) whether the statements given on September 14, 2004, after being advised of his rights, and regarding various unrelated crimes, are the fruits of the prior unwarned statement, thus requiring suppression. We answer both questions in the negative, and conclude that the trial court did not err in denying Lorenzo’s motions to suppress his statements.

A trial court’s ruling on a motion to suppress comes before this court with a presumption of correctness. The evidence and all reasonable inferences and [*5] deductions derived therefrom, must be interpreted in a manner most favorable to sustaining the trial court’s ruling. San Martin v. State, 717 So. 2d 462, 469 (Fla. 1998). Miranda warnings are only required for custodial interrogations. California v. Beheler, 463 U.S. 1121, 1124, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983). A person is in custody if a reasonable person placed in the same situation would feel that his freedom of action was curtailed to a degree associated with an actual arrest. Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999). In the absence of any indicia of coercion or intimidating circumstances, police questioning about criminal conduct or activity alone does not convert an otherwise consensual encounter into a custodial interrogation. Ramsey v. State, 731 So. 2d 79, 81 (Fla. 3d DCA 1999).

In the instant case, Lorenzo was repeatedly told that he did not have to speak to law enforcement and that he was free to leave. The tapes of the conversations between Lorenzo and the police demonstrate that he was aware that he was not in custody, was free to leave, did not have to talk to the police, was willing to accompany [*6] them to the station, and voluntarily spoke with them on September 15, 2004. Thus, we conclude that the statements Lorenzo made that evening were not the product of custodial interrogation and that the motions to suppress these statements and the subsequent Mirandized statements the following day, were properly denied.

Affirmed.

Courtesy of David Edelstein

Bookmark It

Hide Sites

OTTO WRIGHT, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-101

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 21, 2007, 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; Lucy Chernow Brown, Judge; L.T. Case No. 00-8952 CFA02.

COUNSEL: Otto Wright, Arcadia, Pro se.

No appearance required for appellee.

JUDGES: FARMER, KLEIN and GROSS, JJ., concur.

OPINION: PER CURIAM.

Affirmed.

FARMER, KLEIN and GROSS, JJ., concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

RODERICK COLLINS, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-810

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 21, 2007, 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. 05-8851 CF 10 A.

COUNSEL: Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: WARNER, GROSS and TAYLOR, JJ., concur.

OPINION: PER CURIAM.

Affirmed. See Hernandez v. State, 863 So. 2d 484 (Fla. 4th DCA 2004) (holding that name and address printed on letter addressed to defendant that was taken from bedroom of his residence during search did not fall within statutory definition of hearsay).

WARNER, GROSS and TAYLOR, JJ., concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

TYRONE K. SMITH, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-99

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 21, 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 Fifteenth Judicial Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No. 05-11350 CFA02.

COUNSEL: Tyrone K. Smith, Lake City, Pro se.

No appearance required for appellee.

JUDGES: FARMER, HAZOURI and MAY, JJ., concur.

OPINION: PER CURIAM.

Affirmed.

FARMER, HAZOURI and MAY, JJ., concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites