Florida Criminal Law Opinions

STATE OF FLORIDA, Appellant, v. WILLIAM STEVEN KENNEDY, Appellee.

CASE NO. 1D05-6199

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

 
 March 30, 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 Levy County. Robert P. Cates, Judge.

DISPOSITION:   REVERSED.

COUNSEL:   Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellant.
 
Terry N. Silverman, Gainesville, for Appellee.

JUDGES:   WEBSTER, J. ALLEN and ROBERTS, JJ., CONCUR.

OPINION BY:   WEBSTER

 OPINION:   WEBSTER, J.

The state seeks review of an order granting appellee’s motion, made in his criminal prosecution for conspiracy to manufacture methamphetamine, to suppress evidence and statements. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const. (granting to district courts of appeal jurisdiction to “review interlocutory orders . . . to the extent provided by rules adopted by the supreme court”); Fla. R. App. P. 9.140(c)(1)(B) (permitting appeals by the state of “order[s] . . . suppressing before trial confessions, admissions, or evidence obtained by search and seizure”). We conclude that the trial court erroneously failed to apply the correct law and that, upon application of the correct law, no violation of appellee’s Fourth Amendment rights  [*2]  occurred. Accordingly, we reverse.

The pertinent facts are not in dispute. Law enforcement personnel who were members of a “Tri-County Drug Task Force” learned from two people (Garrison and Hines) who were involved in the manufacture of methamphetamine that appellee was also manufacturing methamphetamine; that Garrison and appellee were involved in a “feud” over the theft by appellee of anhydrous ammonia, a chemical used to make methamphetamine; and that Garrison had intended to place a bomb in appellee’s house.

Between eight and ten members of the task force went to appellee’s house. According to the leader of that group, although they had no reason to believe that a bomb had actually been placed or “exigent circumstances” to support going onto appellee’s property, they went to appellee’s house both to warn appellee of the threat that had been made against appellee and to investigate the possibility that appellee was manufacturing methamphetamine. Appellee’s yard was not fenced, although it may have been posted with “No Trespassing” signs. As the task force leader approached appellee’s front door, he smelled odors of anhydrous ammonia and ether, which he knew were consistent with  [*3]  the manufacture of methamphetamine. Based upon those odors, the task force leader arrested appellee as soon as appellee opened the front door. He then told appellee about the bomb plot. Because the task force had been led to believe that another individual was involved in helping appellee make methamphetamine, they conducted a “protective sweep” of the house. It was immediately apparent that a methamphetamine lab had been in operation. At that point, the house was secured and the leader of the task force went to obtain a search warrant.

Both in his motion to suppress and at the hearing on that motion, the only argument made by appellee was that his Fourth Amendment rights had been violated because the law enforcement officers went onto his property without either a warrant or “exigent circumstances.” He argued that exigent circumstances did not exist because the real reason the task force had gone onto his property was to investigate the possibility that he was manufacturing methamphetamine, and that the claim that the task force went there to warn him about the bomb threat was nothing more than a pretext. The state responded that suppression was not appropriate because the law enforcement  [*4]  personnel were lawfully on appellee’s property and the odors of anhydrous ammonia and ether detected as they approached the front door provided probable cause for appellee’s arrest and the ensuing protective sweep of the house. The trial court found that the claim that the task force had gone to appellee’s house principally to warn him about the bomb threat was a pretext, and that the real reason the task force had gone onto appellee’s property was to investigate the possibility that appellee was manufacturing methamphetamine. Based on that finding, the trial court held that exigent circumstances did not exist to permit the task force to go onto appellee’s property without first obtaining a search warrant and that, as a result, appellee’s Fourth Amendment rights had been violated. Accordingly, it granted the motion to suppress. This appeal follows.

The trial court’s legal analysis is flawed in several respects. As the state correctly argued, appellee’s Fourth Amendment rights were not violated when law enforcement personnel crossed the unenclosed front yard to reach the front door. See, e.g., United States v. Santana, 427 U.S. 38, 42, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976) (stating  [*5]  that the threshold of one’s dwelling is a “public” place, as to which the owner has no expectation of privacy); State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981) (stating that, “[u]nder Florida law it is clear that one does not harbor an expectation of privacy on a front porch . . .”) (citations omitted); Davis v. State, 763 So. 2d 519, 520-21 (Fla. 5th DCA 2000) (stating that law enforcement “presence on the porch did not invade any expectation of privacy . . .”) (citations omitted); Wysong v. State, 614 So. 2d 670, 671 (Fla. 4th DCA 1993) (stating that “[n]either thresholds nor [unfenced front yards] are within the scope of the Fourth Amendment”) (citing Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984)). This is so regardless of whether the property was posted with “No Trespassing” signs. Id. (quoting from State v. Sarantopoulos, 604 So. 2d 551, 555 (Fla. 2d DCA 1992)). When the lead officer smelled the odors of anhydrous ammonia and ether, which he knew were consistent with the manufacture of methamphetamine, probable cause existed to arrest appellee, a point which appellee  [*6]  does not contest. Law enforcement’s subjective motivation is irrelevant. Rather, the test is an objective one–would a reasonable officer have acted the same way, given all of the circumstances. See Brigham City v. Stuart, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650 (2006); Devenpeck v. Alford, 543 U.S. 146, 153-54, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004); Whren v. United States, 517 U.S. 806, 813-16, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). Finally, post-arrest protective sweeps of spaces outside the immediate area of the arrest are permissible provided there exist “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). Here, the information possessed by the task force indicated that another individual was involved in helping appellee make methamphetamine. Moreover, it is clear from the evidence that the sweep was appropriately limited and lasted no longer than necessary to dispel the reasonable suspicion  [*7]  of danger and clear the house of other individuals, at which point the house was secured while a warrant was sought.

Because the trial court failed to apply the correct law and, upon application of the correct law, it is clear that appellee’s Fourth Amendment rights were not violated, we reverse the order granting appellee’s motion to suppress.

REVERSED.
 
ALLEN and ROBERTS, JJ., CONCUR.

Share This

K.P., A CHILD, Petitioner, v. STATE OF FLORIDA, Respondent.

Case No. 5D07-749

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 March 30, 2007, Opinion Filed

 
DISPOSITION:    [*1]  PETITION DENIED.

COUNSEL:   James R. Russo, Public Defender, and Raylene Coe, Assistant Public Defender, Viera, for Petitioner.
 
Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Respondent.

JUDGES:   PLEUS, C.J., GRIFFIN and THOMPSON, JJ., concur.
OPINION:   Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction.
 
PER CURIAM.

In this juvenile proceeding, petitioner K.P. seeks from this court a writ of habeas corpus challenging an order of secure detention. Though it appears from the face of the order that he will already have been released from the fifteen-day secure detention that the trial court ordered, we consider it an issue capable of repetition and tending to evade review, n1 so we will address it.

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

n1 See A.W. v. State, 711 So. 2d 598 (Fla. 5th DCA 1998).
 

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

K.P. was originally placed on probation for the charge of possession of less than twenty grams of cannabis. He was later charged with violating probation. The  [*2]  January 20, 2007, risk assessment instrument for K.P. reflected a score of only three points, less than the score required for secure detention.

The trial court conducted a hearing on the alleged violation on February 23, 2007. The trial court found that K.P. had a serious drug problem and had admitted to using marijuana and cocaine on a daily basis, as confirmed by previous positive tests while on probation. The court also found that K.P., who is seventeen years old, had failed to attend school since the eighth grade and is a chronic truant. At the conclusion of the hearing, the trial court issued its disposition order revoking K.P.’s probation, adjudicating him delinquent, and committing him to a moderate risk program. The court also ordered that he be held in secure detention for fifteen days before being placed indefinitely in home detention while awaiting placement into a moderate risk program.

In the instant petition, K.P. argues that the trial court erred in placing him in secure detention. Initially, he points out that under section 985.245(1), Florida Statutes (2007): “All determinations and court orders regarding placement of a child into detention  [*3]  care . . . shall be based on a risk assessment of the child.” Additionally, section 985.27(1)(b), Florida Statutes (2007), which pertains specifically to postcommitment detention, provides, “A child who is awaiting placement in a moderate-risk residential program must be removed from detention within 5 days. . . . Any child held in secure detention during the 5 days must meet detention admission criteria under this part.” See also C.D.T. v. State, 920 So. 2d 787 (Fla. 5th DCA 2006).

K.P. additionally asserts that the trial court lacked the discretion to order an adjudicated juvenile awaiting placement to a moderate risk commitment facility to be held in secure detention for more than the 5 days contemplated by section 985.27(1)(b) without a motion from the Department of Juvenile Justice based on specific information that a placement is imminent. See J.M. v. State, 705 So. 2d 98, 99 (Fla. 5th DCA 1998) (”[A] court may only extend detention beyond 5 days pending a juvenile’s placement in a moderate risk facility if the department shows that it is necessary for placement purposes.”).

Although the trial court may have had meritorious  [*4]  reasons for keeping K.P. in secure detention for five days regardless of the recommendation of the risk assessment instrument, as the State properly concedes, the trial court failed to state clear and convincing reasons for a more restrictive placement, as required under section 985.255(3)(b), Florida Statutes (2007). See C.D.T.; see also §§ 985.245(1), .27(1)(b), Fla. Stat. (2007). And, as the State additionally concedes, the Department did not request that secure detention be extended an additional ten days beyond the original five days. See J.M. Consequently, K.P. would have been entitled to habeas corpus relief from the February 23, 2007, secure detention order. Because, however, by its terms, the order has expired, the petition is denied as moot. n2

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

n2 We note that the trial court’s detention order was entered on February 23, 2007, but the habeas corpus petition was not received by this court until March 6, 2007, some eleven days later. This court’s show cause order was issued on the same date, with the attorney general being ordered to respond by 12:00 noon, Friday, March 9, 2007. Though the attorney general’s response was received some four hours late by this court at 4:10 p.m., it would seem that any delay in the instant case was attributable to K.P., not the attorney general.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -  [*5] 

PETITION DENIED.
 
PLEUS, C.J., GRIFFIN and THOMPSON, JJ., concur.

Share This

CORNELIUS R. BELL, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-71

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 
 March 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  3.850 Appeal from the Circuit Court for Marion County, Hale R. Stancil, Judge.

DISPOSITION:   DISMISSED.

COUNSEL:   Cornelius Bell, Wewahitchka, Pro se.
 
No Appearance for Appellee.

JUDGES:   THOMPSON, ORFINGER and MONACO, JJ., concur.
 OPINION:   PER CURIAM.

Cornelius R. Bell seeks review of the trial court’s summary denial of his Motion for Postconviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied Mr. Bell’s motion in a written order rendered November 27, 2006. Mr. Bell’s notice of appeal was not filed under the “mailbox rule” until December 29, 2006. Accordingly, this Court ordered Mr. Bell to show cause why the untimely appeal should not be dismissed for lack of jurisdiction.

In his unsworn response, styled as “Motion to Accept as Timely Appellant’s Notice of Appeal,” Mr. Bell claimed that he was a victim of internal prison policies regarding inmate use of the prison law library. Mr. Bell contends that he “diligently” attempted to schedule time in the prison law library, however, his first such attempt was “ignored” by prison staff. He argues that this fact, coupled with “the Holiday Schedules” and Gulf Correctional Institution’s  [*2]  status as a “restricted movement compound,” should provide a sufficient basis for this Court to accept his notice of appeal as timely filed. Alternatively, Mr. Bell asks this Court to treat his response/motion as a belated appeal petition.

We dismiss for lack of jurisdiction. Mr. Bell had thirty days from the rendition of the trial court’s denial order to file his notice of appeal. See Fla. R. Crim. P. 3.850(g). He failed to meet the deadline by two days. In his response, he does not deny his failure in this regard; he only argues that he was hamstrung by internal prison policies regarding access to the prison library. Such claims in an unsworn response are insufficient for purposes of bestowing jurisdiction on this Court to entertain the instant appeal. See, e.g., Smartmays v. State, 937 So. 2d 712 (Fla. 5th DCA 2006).

Similarly, the unsworn nature of Mr. Bell’s response renders it insufficient to treat the response as a petition for belated appeal. See Fla. R. App. P. 9.141(c)(3)(F). Mr. Bell’s recourse is to file a proper petition for belated appeal, including a proper oath with this Court  [*3]  in an attempt to seek a belated appeal.

Appeal dismissed for lack of jurisdiction.

DISMISSED.
 
THOMPSON, ORFINGER and MONACO, JJ., concur.

Share This

RAYBURN LEE WILLIAMS, JR, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-96

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 
 March 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Orange County, Thomas B. Smith, Judge.

DISPOSITION:   AFFIRMED as modified.

COUNSEL:   James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellant.
 
Rayburn Lee Williams, Florida City, Pro se.
 
Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, THOMPSON and MONACO, JJ., concur.
 OPINION:   PER CURIAM.

This is an Anders appeal in which we ordered supplemental briefs to address the propriety of the Habitual Violent Felony Offender [”HVFO”] designation. The State has responded and properly concedes that the designation is not proper because of the timing of the conviction. See § 775.084(5), Fla. Stat. (2005). We therefore strike the HVFO designation.

AFFIRMED as modified.
 
GRIFFIN, THOMPSON and MONACO, JJ., concur.

Share This

EDDIE MURPHY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1131

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 
 March 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Orange County, John H. Adams, Sr., Judge.

DISPOSITION:   REVERSED and REMANDED.

COUNSEL:   James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
 
Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   MONACO, J. PALMER and TORPY, JJ., concur.

OPINION BY:   MONACO

 OPINION:   MONACO, J.

The primary issue raised by the appellant, Eddie Murphy, in this appeal is whether the trial court erred in imposing an habitual felony offender sentence. Mr. Murphy asserts that the State failed to give him sufficient written notice of its intent to seek habitualization, and that in any event the trial court failed to inquire of him during the plea colloquy if he was aware of the consequences of habitualization. It appears that Mr. Murphy is correct.

At his plea and sentencing hearing Mr. Murphy was asked if he had read and understood the plea agreement that he signed, to which he replied in the affirmative. The plea agreement basically said that there was no dispositional understanding and that Mr. Murphy was pleading to an habitual traffic offender charge. It further  [*2]  indicated that if Mr. Murphy had two or more prior felonies, he might receive a sentence double the normal five-year sentence for a third-degree felony. No further explanation was given.

During sentencing on the “open” plea agreement, the State pointed out that they had filed an “habitual felony offender notice” in open court that showed numerous prior felony convictions. The trial court sentenced Mr. Murphy to 5 years imprisonment in the custody of the Florida Department of Corrections, saying:

The Court: Furthermore, Mr. Murphy, I’m going to find that you are a habitual felony offender and this 5-year sentence is as a habitual felony offender. Because it is as a habitual felony offender sentence, I could have sentenced you to 10 years, but I don’t choose to do that.
Mr. Murphy now argues that the State failed to give him sufficient written notice of its intent to seek an habitual felony offender sentence. In addition, he asserts that the trial court failed to adequately inquire during the plea colloquy concerning whether or not he was aware of the consequences of an habitual felony offender sentence.

While a trial court is required to inform a defendant only of the  [*3]  direct consequences of the plea and is under no duty to apprise him or her of any collateral consequences, knowledge that habitualization may affect the possibility of early release through certain programs is considered a direct consequence or one that has a definite, immediate, and largely automatic effect on the range of a defendant’s punishment. See Major v. State, 814 So. 2d 424 (Fla. 2002); Zambuto v. State, 413 So. 2d 461, 462 (Fla. 4th DCA 1982); see also Boutwell v. State, 776 So. 2d 1014, 1016 n.2 (Fla. 5th DCA 2001). Accordingly, in Ashley v. State, 614 So. 2d 486 (Fla. 1993), the Florida Supreme Court held that before a trial court may impose an habitual offender sentence following a plea of guilty or nolo contendere: (1) the defendant must be given written notice of the State’s intent to seek an habitual offender sentence, and (2) the trial court must confirm that the accused is personally aware of that possibility and of the reasonable consequences of habitualization. See also Akers v. State, 890 So. 2d 1257 (Fla. 5th DCA 2005).

It is the second prong that causes us concern. The case  [*4]  law teaches that with respect to this requirement the trial court should, during the plea colloquy, discuss with the defendant his or her eligibility for habitualization, as well as the maximum habitual offender term for the charged offense, the fact that habitualization may affect the possibility of early release through certain programs, and where habitual violent felony offender provisions are implicated, the mandatory minimum term. See Major, 814 So. 2d at 429; Black v. State, 698 So. 2d 1370 (Fla. 2d DCA 1997)(habitual offender sentence cannot be imposed where court failed to advise or determine if defendant knew that he could be ineligible for certain programs affecting early release such as gain time or provisional credit); see also State v. Wilson, 658 So. 2d 521 (Fla. 1995).

In the instant case, we are unable to confirm that the first prong was satisfied because it is simply not clear from the record when the State served its formal written notice of intent to habitualize. All that is known is that it was filed with the court on the day of the plea hearing. It is the second prong, however, that is more troubling.

It does  [*5]  not appear that the trial court made any attempt to satisfy the requirement to make Mr. Murphy aware of the reasonable consequences of habitualization prior to accepting the plea. In fact, the only comment the trial court made regarding habitualization prior to acceptance of the plea was the following:
The Court: Do you understand if you engage in criminal conduct in the future, your conviction on these charges can be counted against you and could result in your receiving a more severe sentence in that future case?
The colloquy between Mr. Murphy and the trial court was insufficient to satisfy the requirements for habitualization. See Akers, 890 So. 2d at 1260. Moreover, even assuming that the written notice provided by the State was timely, it too did not advise Mr. Murphy of the possibility and consequences of habitualization. Compare State v. Blackwell, 661 So. 2d 282 (Fla. 1995)(written plea agreement contained provisions fully explaining all direct consequences of habitualization).

Accordingly, we reverse the judgment and sentence and remand this case to the trial court to allow Mr. Murphy the opportunity to withdraw his plea and  [*6]  proceed to trial on the subject charges. Should Mr. Murphy plead no contest or guilty the trial court could, in its discretion, impose a guideline sentence or an habitual offender term provided that the requirements of section 775.084, Florida Statutes and Ashley are met. See State v. Jefferson, 665 So. 2d 1057 (Fla. 1996); Pitts v. State, 805 So. 2d 1087 (Fla. 5th DCA 2002).

REVERSED and REMANDED.
 
PALMER and TORPY, JJ., concur.

Share This