Florida Criminal Law Opinions

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.

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