Florida Criminal Law Opinions

D.W.A., A CHILD, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D04-2010

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 

 March 30, 2007, Opinion Filed

 

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Marion County, Carven D. Angel, Judge.

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

COUNSEL:   James S. Purdy, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
 
Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, PALMER and TORPY, JJ., concur.
OPINION:   ON REMAND
 
PER CURIAM.

This case is on remand from the Florida Supreme Court in light of V.K.E. v. State, 934 So. 2d 1276 (Fla. 2006).

For the reasons stated in the original opinion filed August 19, 2005, we reverse the disposition orders because they might be construed to authorize commitment for a term that exceeds the statutory maximum.

As to Appellant’s second point on appeal related to the imposition of statutory surcharges pursuant to sections 938.08 and 938.085, Florida Statutes, and in light of V.K.E., we strike those portions of the disposition orders that impose a $ 201 “domestic violence” surcharge and a $ 151 “rape crisis center” surcharge.

In all other respects, the disposition  [*2]  orders are affirmed.

AFFIRMED in part; REVERSED in part and REMANDED.
 
GRIFFIN, PALMER and TORPY, JJ., concur.

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VICTORIA DENISE WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-0149

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 Taylor County. James Roy Bean, Judge.

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

COUNSEL:   Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
 
Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   BROWNING, C.J. WEBSTER and PADOVANO, JJ., CONCUR.

OPINION BY:   BROWNING

 OPINION:   BROWNING, C.J.

We affirm Appellant’s conviction and sentence for felony cruelty to animals, as the State produced evidence sufficient to overcome Appellant’s motion for judgment of acquittal. We reverse the order of restitution because the trial court lacked jurisdiction to enter such order, as Appellant had already filed her notice of appeal. See, e.g., Brantley v. State, 723 So. 2d 909 (Fla. 1st DCA 1999). We note that, upon return of jurisdiction to the trial court, the trial court may conduct another restitution hearing. See id.

AFFIRMED in part, REVERSED in part, and REMANDED.  [*2] 
 
WEBSTER and PADOVANO, JJ., CONCUR.

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BERTHA JACKSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-4095

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 
 March 30, 2007, Opinion Filed

NOTICE:    [*1]  NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
PRIOR HISTORY:   Appeal from the Circuit Court for Polk County; Michael E. Raiden, Acting Circuit Judge.
COUNSEL:   James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
 
Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   CANADY, Judge.

OPINION BY:   CANADY

 OPINION:   CANADY, Judge.
Bertha Jackson appeals her sentence for aggravated battery with a deadly weapon. Jackson argues that the trial court erred in hearing testimony from the victim for purposes of sentencing without defense counsel present in the courtroom. Because Jackson did not preserve the issue for appeal as required by Florida Rule of Appellate Procedure 9.140(e), we affirm her sentence.

The record indicates that the trial court conducted part of the sentencing hearing without defense counsel present by hearing the victim’s testimony as it related to sentencing. After the victim testified, the trial court contacted defense counsel by telephone in open court and informed defense counsel of the victim’s  [*2]  testimony. Defense counsel did not object on the basis that the trial court erred in hearing the victim’s testimony in defense counsel’s absence. In addition, defense counsel did not object at the second sentencing hearing held two months later. Furthermore, Jackson’s appellate counsel did not raise this issue in Jackson’s motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

A defendant is entitled to the assistance of counsel throughout sentencing proceedings. Sandoval v. State, 884 So. 2d 214, 215 (Fla. 2d DCA 2004); Smith v. State, 590 So. 2d 1078, 1078 (Fla. 2d DCA 1991). However, rule 9.140(e) provides that “[a] sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to [rule] 3.800(b).” In Brannon v. State, 850 So. 2d 452, 456 (Fla. 2003), the court held that “the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses [an appellant]  [*3]  from raising the error on direct appeal.”

In Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. 1st DCA 2003), the appellant challenged his lack of representation at his resentencing. The First District acknowledged that the issue was unpreserved but held that it constituted fundamental error. The court recognized that unpreserved sentencing errors are not to be entertained on appeal after the adoption of rule 3.800(b)(2). n1 The court nevertheless held that “[t]he lack of representation is not a sentencing error, but rather a due process error.” 838 So. 2d at 1243.

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n1 The Gonzalez opinion, which was issued prior to Brannon, relied on the general holding in Harvey v. State, 786 So. 2d 28 (Fla. 1st DCA 2001), that unpreserved sentencing errors will not be entertained on appeal after the adoption of rule 3.800(b), which was approved in Brannon, 850 So. 2d at 459.
 

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

This court, however, has classified a claim of constitutional error affecting  [*4]  a sentencing proceeding as a claim of sentencing error which must be preserved in order to be raised on appeal. In Harley v. State, 924 So. 2d 831, 832 (Fla. 2d DCA 2005), this court held that a claim of vindictive sentencing-a due process claim-that was not raised at sentencing or in a rule 3.800(b) motion could not be considered on appeal. The Fifth District reached the same conclusion regarding a vindictive sentencing claim in Allende v. State, 882 So. 2d 472 (Fla. 5th DCA 2004). See also Summerlin v. State, 901 So. 2d 997 (Fla. 2d DCA 2005) (holding that a claim that a defendant was improperly sentenced by a successor judge without a showing of necessity is a sentencing error that must be preserved by objection at sentencing or by a rule 3.800(b) motion); Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004) (same). See generally Griffin v. State, 946 So. 2d 610 (Fla. 2d DCA 2007) (holding that defendant’s claim that evidence presented at sentencing hearing was inadmissible was not subject to preservation as a sentencing error pursuant to rule 3.800(b)).

Based on Harley’s treatment of a due  [*5]  process claim as a claim of sentencing error, we disagree with the reasoning of Gonzalez. We thus conclude that Jackson’s claim that her lack of representation at sentencing violates due process is a claim of sentencing error and therefore should have been preserved for appeal as required by rule 9.140(e). We certify pursuant to article V, section 3(b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi) that this decision is in direct conflict with the First District’s decision in Gonzalez.

Affirmed; conflict certified.
 
LAROSE, J., Concurs.
 
STRINGER, J., Concurs specially.

CONCUR BY:   STRINGER, Judge, Specially concurring.

CONCUR:   I concur with the majority’s affirmance of Jackson’s sentence in this case because any alleged error was not preserved. I write because I disagree with the majority’s assertion that this type of error could have been preserved by means of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

Rule 3.800(b)(2) permits a party to file a motion to correct a “sentencing error” while an appeal is pending and before the party’s initial brief  [*6]  is due. The court commentary to the rule defines “sentencing errors” for purposes of the rule as including “harmful errors in orders entered as a result of the sentencing process” and “errors within the sentence itself.” Fla. R. Crim. P. 3.800 court cmt.; see also Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So. 2d 1015, 1019 (Fla. 2000). In discussing the use of rule 3.800(b)(2), the supreme court identified various “sentencing errors” that should be preserved by a motion pursuant to rule 3.800(b)(2), including sentences exceeding the statutory maximum, habitualization in violation of the statutory requirements, scoresheet errors affecting the length of sentence, erroneous imposition of minimum mandatory sentences, deviation between the written and oral judgments and sentences, improper departure sentences, and improper imposition of costs. Maddox v. State, 760 So. 2d 89, 101-10 (Fla. 2000).  [*7] 

While I do not suggest that the list of sentencing errors identified in Maddox is, or was intended to be, an exhaustive list of every conceivable “sentencing error,” each of the types of errors identified in Maddox meets the definition of a “sentencing error” provided in the court commentary to rule 3.800(b)(2) and discussed in its opinion adopting the rule. See Amendments, 761 So. 2d at 1019. Thus, under my reading of the court commentary to rule 3.800(b)(2) and Maddox, I believe that a “sentencing error” that can be preserved under rule 3.800(b)(2) is an error in the sentence itself-not any error that might conceivably occur during a sentencing hearing.

In light of this distinction, I do not agree with the majority that the error in this case could be properly preserved under rule 3.800(b)(2). Jackson’s lack of representation at the sentencing hearing is not a harmful error in an order entered as a result of the sentencing process. It is also not an error within the sentence itself. Instead, Jackson’s lack of representation constitutes a due process violation that occurred at the sentencing hearing and which was subject to the contemporaneous objection  [*8]  rule.

Recently, this court noted that rule 3.800(b)(2) “was not intended to circumvent rules requiring contemporaneous objections or enforcing principles of waiver.” Griffin v. State, 946 So. 2d 610, 613 (Fla. 2d DCA 2007). Instead, it was intended to address the problems that arise from sentencing errors that ” ‘are not immediately apparent at sentencing.’ ” Amendments, 761 So. 2d at 1016 (quoting Amendments to the Fla. Rules of Appellate Procedure, 696 So. 2d 1103, 1105 (Fla. 1996)). I do not believe that by adopting rule 3.800(b)(2) the supreme court intended to give a criminal defendant the right to stand mute in the face of obvious procedural irregularities at a sentencing hearing secure in the knowledge that if he or she is dissatisfied with the resulting sentence, he or she could resurrect objections to those procedural deficiencies in a subsequent 3.800(b)(2) motion.

I recognize that this court and others have issued opinions that provide less than clear guidance on the question of what types of errors can and cannot be preserved under rule 3.800(b)(2). However, given the language used by the supreme court when rule 3.800(b)(2)  [*9]  was created and adopted, I agree with the First District’s reasoning in Gonzalez v. State, 838 So. 2d 1242 (Fla. 1st DCA 2003), that the lack of proper representation at a sentencing hearing is not a “sentencing error” that can be raised and preserved by a rule 3.800(b)(2) motion.

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BERTHA JACKSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-4095

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 
 March 30, 2007, Opinion Filed

NOTICE:    [*1]  NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
PRIOR HISTORY:   Appeal from the Circuit Court for Polk County; Michael E. Raiden, Acting Circuit Judge.
COUNSEL:   James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
 
Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   CANADY, Judge.

OPINION BY:   CANADY

 OPINION:   CANADY, Judge.
Bertha Jackson appeals her sentence for aggravated battery with a deadly weapon. Jackson argues that the trial court erred in hearing testimony from the victim for purposes of sentencing without defense counsel present in the courtroom. Because Jackson did not preserve the issue for appeal as required by Florida Rule of Appellate Procedure 9.140(e), we affirm her sentence.

The record indicates that the trial court conducted part of the sentencing hearing without defense counsel present by hearing the victim’s testimony as it related to sentencing. After the victim testified, the trial court contacted defense counsel by telephone in open court and informed defense counsel of the victim’s  [*2]  testimony. Defense counsel did not object on the basis that the trial court erred in hearing the victim’s testimony in defense counsel’s absence. In addition, defense counsel did not object at the second sentencing hearing held two months later. Furthermore, Jackson’s appellate counsel did not raise this issue in Jackson’s motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

A defendant is entitled to the assistance of counsel throughout sentencing proceedings. Sandoval v. State, 884 So. 2d 214, 215 (Fla. 2d DCA 2004); Smith v. State, 590 So. 2d 1078, 1078 (Fla. 2d DCA 1991). However, rule 9.140(e) provides that “[a] sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to [rule] 3.800(b).” In Brannon v. State, 850 So. 2d 452, 456 (Fla. 2003), the court held that “the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses [an appellant]  [*3]  from raising the error on direct appeal.”

In Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. 1st DCA 2003), the appellant challenged his lack of representation at his resentencing. The First District acknowledged that the issue was unpreserved but held that it constituted fundamental error. The court recognized that unpreserved sentencing errors are not to be entertained on appeal after the adoption of rule 3.800(b)(2). n1 The court nevertheless held that “[t]he lack of representation is not a sentencing error, but rather a due process error.” 838 So. 2d at 1243.

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

n1 The Gonzalez opinion, which was issued prior to Brannon, relied on the general holding in Harvey v. State, 786 So. 2d 28 (Fla. 1st DCA 2001), that unpreserved sentencing errors will not be entertained on appeal after the adoption of rule 3.800(b), which was approved in Brannon, 850 So. 2d at 459.
 

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This court, however, has classified a claim of constitutional error affecting  [*4]  a sentencing proceeding as a claim of sentencing error which must be preserved in order to be raised on appeal. In Harley v. State, 924 So. 2d 831, 832 (Fla. 2d DCA 2005), this court held that a claim of vindictive sentencing-a due process claim-that was not raised at sentencing or in a rule 3.800(b) motion could not be considered on appeal. The Fifth District reached the same conclusion regarding a vindictive sentencing claim in Allende v. State, 882 So. 2d 472 (Fla. 5th DCA 2004). See also Summerlin v. State, 901 So. 2d 997 (Fla. 2d DCA 2005) (holding that a claim that a defendant was improperly sentenced by a successor judge without a showing of necessity is a sentencing error that must be preserved by objection at sentencing or by a rule 3.800(b) motion); Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004) (same). See generally Griffin v. State, 946 So. 2d 610 (Fla. 2d DCA 2007) (holding that defendant’s claim that evidence presented at sentencing hearing was inadmissible was not subject to preservation as a sentencing error pursuant to rule 3.800(b)).

Based on Harley’s treatment of a due  [*5]  process claim as a claim of sentencing error, we disagree with the reasoning of Gonzalez. We thus conclude that Jackson’s claim that her lack of representation at sentencing violates due process is a claim of sentencing error and therefore should have been preserved for appeal as required by rule 9.140(e). We certify pursuant to article V, section 3(b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi) that this decision is in direct conflict with the First District’s decision in Gonzalez.

Affirmed; conflict certified.
 
LAROSE, J., Concurs.
 
STRINGER, J., Concurs specially.

CONCUR BY:   STRINGER, Judge, Specially concurring.

CONCUR:   I concur with the majority’s affirmance of Jackson’s sentence in this case because any alleged error was not preserved. I write because I disagree with the majority’s assertion that this type of error could have been preserved by means of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

Rule 3.800(b)(2) permits a party to file a motion to correct a “sentencing error” while an appeal is pending and before the party’s initial brief  [*6]  is due. The court commentary to the rule defines “sentencing errors” for purposes of the rule as including “harmful errors in orders entered as a result of the sentencing process” and “errors within the sentence itself.” Fla. R. Crim. P. 3.800 court cmt.; see also Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So. 2d 1015, 1019 (Fla. 2000). In discussing the use of rule 3.800(b)(2), the supreme court identified various “sentencing errors” that should be preserved by a motion pursuant to rule 3.800(b)(2), including sentences exceeding the statutory maximum, habitualization in violation of the statutory requirements, scoresheet errors affecting the length of sentence, erroneous imposition of minimum mandatory sentences, deviation between the written and oral judgments and sentences, improper departure sentences, and improper imposition of costs. Maddox v. State, 760 So. 2d 89, 101-10 (Fla. 2000).  [*7] 

While I do not suggest that the list of sentencing errors identified in Maddox is, or was intended to be, an exhaustive list of every conceivable “sentencing error,” each of the types of errors identified in Maddox meets the definition of a “sentencing error” provided in the court commentary to rule 3.800(b)(2) and discussed in its opinion adopting the rule. See Amendments, 761 So. 2d at 1019. Thus, under my reading of the court commentary to rule 3.800(b)(2) and Maddox, I believe that a “sentencing error” that can be preserved under rule 3.800(b)(2) is an error in the sentence itself-not any error that might conceivably occur during a sentencing hearing.

In light of this distinction, I do not agree with the majority that the error in this case could be properly preserved under rule 3.800(b)(2). Jackson’s lack of representation at the sentencing hearing is not a harmful error in an order entered as a result of the sentencing process. It is also not an error within the sentence itself. Instead, Jackson’s lack of representation constitutes a due process violation that occurred at the sentencing hearing and which was subject to the contemporaneous objection  [*8]  rule.

Recently, this court noted that rule 3.800(b)(2) “was not intended to circumvent rules requiring contemporaneous objections or enforcing principles of waiver.” Griffin v. State, 946 So. 2d 610, 613 (Fla. 2d DCA 2007). Instead, it was intended to address the problems that arise from sentencing errors that ” ‘are not immediately apparent at sentencing.’ ” Amendments, 761 So. 2d at 1016 (quoting Amendments to the Fla. Rules of Appellate Procedure, 696 So. 2d 1103, 1105 (Fla. 1996)). I do not believe that by adopting rule 3.800(b)(2) the supreme court intended to give a criminal defendant the right to stand mute in the face of obvious procedural irregularities at a sentencing hearing secure in the knowledge that if he or she is dissatisfied with the resulting sentence, he or she could resurrect objections to those procedural deficiencies in a subsequent 3.800(b)(2) motion.

I recognize that this court and others have issued opinions that provide less than clear guidance on the question of what types of errors can and cannot be preserved under rule 3.800(b)(2). However, given the language used by the supreme court when rule 3.800(b)(2)  [*9]  was created and adopted, I agree with the First District’s reasoning in Gonzalez v. State, 838 So. 2d 1242 (Fla. 1st DCA 2003), that the lack of proper representation at a sentencing hearing is not a “sentencing error” that can be raised and preserved by a rule 3.800(b)(2) motion.

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RICKEY LAMAR LEWIS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-6136

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 Santa Rosa County. Dedee S. Costello, Judge.
COUNSEL:   Ricky Lamar Lewis, Pro se, Appellant.
 
Bill McCollum, Attorney General, Tallahassee, for Appellee.

JUDGES:   BROWNNG, C.J., KAHN, and LEWIS, JJ., CONCUR.
 OPINION:   PER CURIAM.

Having considered the appellant’s response to this Court’s order of January 22, 2007, this appeal is hereby dismissed as untimely. This dismissal is without prejudice to appellant filing with this Court a petition for belated appeal. See Fla. R. App. P. 9.141(c); Adams v. State, 734 So. 2d 1086 (Fla. 1st DCA 1999).

In light of this dismissal, all pending motions for extension of time, to supplement the record, and for appointment of counsel are hereby denied.
 
BROWNNG, C.J., KAHN, and LEWIS, JJ., CONCUR.

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CHARLES E. DONALD, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-0555

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 Duval County. Hugh A. Carithers, Jr., Judge.
COUNSEL:   Charles E. Donald, Pro se, Appellant.
 
Bill McCollum, Attorney General, Tallahassee, for Appellee.

JUDGES:   BROWNING, C.J., KAHN, and LEWIS, JJ., CONCUR.
 OPINION:   PER CURIAM.

Having considered the appellant’s response to this Court’s order issued on February 8, 2007, the appeal is hereby dismissed as untimely. The appellant’s untimely motion for rehearing did not delay rendition of the order on appeal. This dismissal is without prejudice to the appellant’s right to file a petition for belated appeal pursuant to rule 9.141(c).
 
BROWNING, C.J., KAHN, and LEWIS, JJ., CONCUR.

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CLIFFORD LEON REID, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-0807

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 Duval County. Jack M. Schemer, Judge.
COUNSEL:   Clifford Leon Reid, Pro se, Appellant.
 
Bill McCollum, Attorney General, Tallahassee, for Appellee.

JUDGES:   BROWNING, CJ., KAHN, and LEWIS, JJ., CONCUR.
 OPINION:   PER CURIAM.

Having considered the appellant’s response to this Court’s order of February 16, 2007, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on January 30, 2007, appealing the order on the appellant’s postconviction motion, rendered on December 19, 2006, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R. App. P. 9.110(b). DISMISSED.
 
BROWNING, CJ., KAHN, and LEWIS, JJ., CONCUR.

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NICK JOSEPH MOLFETTO, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-5073

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 
 March 30, 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; Ronald N. Ficarrotta, Judge.

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

COUNSEL:   Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
 
Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   SILBERMAN, Judge. WALLACE and LaROSE, JJ., Concur.

OPINION BY:   SILBERMAN

 OPINION:   SILBERMAN, Judge.

Nick Molfetto challenges the postconviction court’s orders denying his original motion for postconviction relief. He also contends that the postconviction court erred by failing to consider the merits of his amended motions for postconviction relief. We affirm the denial of relief as to the original motion, but we reverse and remand for the postconviction court to consider the amended motions.

In 2001, the trial court entered its judgment and sentence against Molfetto following his conviction for several crimes. This court affirmed Molfetto’s direct appeal, and our mandate issued in May 2003. In October 2003, Molfetto filed his original motion for postconviction  [*2]  relief, raising twenty-three claims. In December 2004, he filed an amended motion, raising claim number twenty-four. In April 2005, he filed a second amended motion, raising claim number twenty-five. Molfetto’s motion and amended motions were timely filed within the two-year period provided for in Florida Rule of Criminal Procedure 3.850(b).

The postconviction court entered orders denying several claims raised in Molfetto’s original motion. In July 2005, the court entered an order granting an evidentiary hearing on other claims.

In September 2005, the court held the evidentiary hearing. At the start of the hearing, Molfetto’s counsel pointed out that the two additional claims raised in the amended motions remained pending. Counsel for the State indicated that the order granting the evidentiary hearing only addressed the claims contained in the original motion. The postconviction court declined to consider the amended claims, stating that it would proceed on the grounds from the original motion for which it had granted the evidentiary hearing. Following the hearing, the court entered its order denying relief as to the original motion. The court did not  [*3]  address claims twenty-four and twenty-five from the amended motions, and it appears the postconviction court has never considered those claims.

We find no fault with the postconviction court’s decision not to consider the amended motions at the evidentiary hearing when they had not been set for hearing on that date. However, because the amended motions were timely filed and were pending when the postconviction court resolved the original motion, we reverse and remand for the postconviction court to consider the amended motions. See McAbee v. State, 873 So. 2d 545 (Fla. 2d DCA 2004); Ramirez v. State, 854 So. 2d 805 (Fla. 2d DCA 2003).

Regarding the original postconviction motion, we affirm the denial of relief under grounds one through twenty-one and ground twenty-three without comment. As to ground twenty-two, Molfetto claimed, among other things, that his trial counsel was ineffective for failing to seek dismissal of the felony petit theft charge because the record does not reflect that he has the requisite two prior grand theft convictions to support the enhancement of misdemeanor petit theft to felony petit theft pursuant to section 812.014(3)(c), Florida Statutes  [*4]  (1997). He also argued that even if he has prior grand theft convictions, they are insufficient to support the enhancement to felony petit theft because two prior petit theft convictions are required for enhancement. We disagree on both points.

First, the record reflects that Molfetto has two prior convictions for grand theft, one in case number 95-02779 and the other in case number 97-01521. Second, as to Molfetto’s argument that the two predicate convictions must be for petit theft rather than grand theft, he did not raise this issue in his motion for postconviction relief or at the evidentiary hearing. Thus, the argument is not preserved for review. Even if the argument were properly before us, it is without merit. Section 812.014(3)(c) provides that “[a] person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree.” (Emphasis added.) Section 812.014(3)(c) does not require two prior petit theft convictions. Molfetto’s reliance on State v. Jackson, 526 So. 2d 58 (Fla. 1988), and its progeny is misplaced. Although Jackson held that two predicate petit theft convictions were  [*5]  required, the court was construing the 1985 version of section 812.014(2)(c) which specifically required two prior petit theft convictions as opposed to any theft convictions.

Accordingly, we affirm the denial of Molfetto’s original motion for postconviction relief, but we reverse and remand for the postconviction court to consider the two claims raised in Molfetto’s amended motions.

Affirmed in part, reversed in part, and remanded.
 
WALLACE and LaROSE, JJ., Concur.

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NICK JOSEPH MOLFETTO, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-5073

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 

 March 30, 2007, Decided

 
OPINION:    [*1] 

BY ORDER OF THE COURT:

Appellant’s motion for rehearing filed on October 26, 2006, is granted. We withdraw our previously issued opinion dated October 13, 2006, and substitute the attached opinion in its place.

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STATE OF FLORIDA, Appellant, v. FELIX PEREZ, Appellee.

Case No. 2D06-638

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 
 March 30, 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; Nancy Moate Ley, Judge.
COUNSEL:   Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
 
James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

JUDGES:   DANAHY, PAUL W., Senior Judge. ALTENBERND and KELLY, JJ., Concur.

OPINION BY:   DANAHY, PAUL W.

 OPINION:   DANAHY, PAUL W., Senior Judge.

The State challenges the trial court’s grant of a motion to dismiss the information filed against Felix Perez on charges of burglary. Because the trial court based its ruling on an incorrect version of the statute of limitation, we reverse.

For offenses occurring on May 27, 1998, Perez was charged with burglary in violation of section 810.02(3), Florida Statutes (1997). Shortly after the offense, but before he was arrested for it, he was arrested on a New Jersey warrant in Pinellas County and was extradited to New Jersey. Later, following confirmation of fingerprint identification, an information was filed and a capias issued on March 8, 2000. The  [*2]  Clearwater Police Department then conducted a search and determined that Perez was in a New Jersey prison. The Department took no further action at that time. The record shows that Perez remained in New Jersey from August 1998 to September 2005.

On September 29, 2005, Perez was arrested in Pinellas County on the capias. Perez filed a motion to dismiss the information, alleging that the statute of limitation had expired because more than three years had elapsed between the filing of the information and the execution of the capias. The trial court granted the motion and the State appeals.

We review de novo the trial court’s order granting Perez’s motion to dismiss. State v. Pasko, 815 So. 2d 680, 681 (Fla. 2d DCA 2002). The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when there are no material facts in dispute. Id. In this case, the parties concede that there are no material facts in dispute.

In his motion to dismiss, Perez relied on State v. Mack, 637 So. 2d 18 (Fla. 4th DCA 1994). The decision in Mack was based on that court’s interpretation of the 1981 version of section 775.15, Florida Statutes  [*3]  , which provided:

(2)(b) A prosecution [for felonies other than first degree] must be commenced within 3 years after it is committed.

(5) A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered.
In Mack, the circuit court found that the State failed to conduct a diligent search to determine Mack’s whereabouts, and that the delay caused by the State’s lack of effort was unreasonable. The district court affirmed. In the instant case, the trial court relied on Mack in granting Perez’s motion to dismiss. This was error. Because the statute was significantly changed in 1997, prior to the date of Perez’s offense, the holding in Mack is not applicable here.

The applicable statute of limitation is that which was in effect at the time of the offense giving rise to the criminal charges. Brown v. State, 674 So. 2d 738, 740 n.1 (Fla. 2d DCA 1995). The date  [*4]  of Perez’s charged offense is May 27, 1998, therefore, the 1997 version of the statute, which became effective on July 1, 1997, applies. Ch. 97-90, § 7 at 521, Laws of Fla. Although the 1997 version of section 775.15(2)(b) still provides that prosecution must be commenced within three years of the commission of the crime, section 775.15(5)(b) significantly changes the application of that limitation:
A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.
§ 775.15(5)(b), Fla. Stat. (1997). (Emphasis on language added in 1997). Section 775.15(6)  [*5]  was also significantly changed:
The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state. This provision shall not extend the period of limitation otherwise applicable by more than three years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from this state or has not been extradited for prosecution from another state.
§ 775.15(6), Fla. Stat. (1997). (Emphasis on language added in 1997).

In this case, the prosecution was timely commenced because the information was filed on March 8, 2000, less than two years after the date of the offense, May 27, 1998. Although Perez was not arrested until September 29, 2005, he admits that, but for about three months, he was continuously out of the State of Florida for the entire period in question. As a result, under the circumstances of this case, sections 775.15(5)(b) and (6) tolled the statute of limitation for  [*6]  as long as Perez remained absent from Florida and relieved the State from any obligation to attempt to extradite Perez from New Jersey. n1

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n1 Perez argues that the 1997 version of section 775.15 does not relieve the State from having to conduct a diligent search. We agree. See Cunnell v. State, 920 So. 2d 810, 813 (Fla. 2d DCA 2006). The “diligent search” requirement, however, was satisfied here, since the State, at all relevant times, knew Perez’s whereabouts.
 

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We therefore conclude that the trial court’s decision to grant Perez’s motion to dismiss was based on an application of an incorrect version of the statute and must be reversed. Accordingly, we reverse and remand with directions to reinstate the information.
 
ALTENBERND and KELLY, JJ., Concur.

Courtesy of David Edelstein

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