Florida Criminal Law Opinions

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An appeal from the Circuit Court for Madison County, James Roy Bean, Judge.

Jerry L. Smith, Jr., pro se, Appellant.

Bill McCollum, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Having considered the appellant’s response to this Court’s order of November 17, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on October 3, 2006, appealing the order on the appellant’s postconviction motion, rendered on August 28, 2006, is untimely. Because the notice of appeal was filed more than thirty days after rendition of the order, this Court is without appellate

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jurisdiction. See Fla. R. App. P. 9.110(b).

DISMISSED.

WOLF, DAVIS, and THOMAS, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

06-5305.pdf

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Certiorari — Original Jurisdiction.

Bernard Williams, pro se, Petitioner.

Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.

PER CURIAM.

Bernard Williams seeks certiorari review of the denial of a petition for writ of mandamus which challenged the decision of the Florida Parole Commission, respondent, revoking his conditional release supervision. Because (i) the evidence of

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a willful violation on the part of the petitioner is tenuous at best, (ii) the hearing officer recommended reinstatement, and (iii) neither the parole examiner’s report nor the Parole Commission’s order contain a finding the petitioner’s violation of his conditional release constituted a willful violation of a substantial condition of the conditional release order, under this court’s recent decisions in Williams v. Florida Parole Commission, 32 Fla. L. Weekly D620 (Fla. 1st DCA March 2, 2006) and Mathis v. Florida Parole Commission, 944 So. 2d 1182 (Fla. 1st DCA 2006), we grant the petition, quash the circuit court’s order, and remand with instructions that the trial court quash the order of the Parole Commission and remand for further proceedings consistent with these opinions. Further, the circuit court’s order imposing a lien is quashed. Crosby v. Fla. Parole Comm’n, 32 Fla. L. Weekly D619 (Fla. 1st DCA March 2, 2007).

REMANDED for further proceedings consistent with this opinion.

BARFIELD, WOLF, AND VAN NORTWICK, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

06-4666.pdf

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An appeal from the Circuit Court for Bay County, DeDee S. Costello, Judge.

Nancy A. Daniels, Public Defender and John B. Kelly, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant, Robert Hudson, appeals an order revoking his probation. We reverse the trial court’s finding that the appellant committed multiple violations of conditions (5) and (8) of the order of probation, based upon the state’s concession of error and the evidence in the record showing that Hudson was in New Jersey and did

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not have constructive possession of the mobile home where the contraband was seized.

The trial court also erroneously found two violations that it had previously dismissed for lack of evidence, regarding a positive urinalysis on September 9, 2005, and we direct the court to strike those violations.

We affirm the court’s determination that Hudson violated condition (1) by failing to timely report to his probation officer, and (10) by failing to comply with the officer’s instructions, because Hudson left the state without following proper procedure, of which he was fully informed. We remand, however, to permit the trial court to consider whether to revoke probation solely upon the violations connected with the move, and whether to impose the same sentence. See Taylor v. State, 734 So. 2d 1171 (Fla. 1st DCA 1999).

REVERSED and REMANDED.

BARFIELD, KAHN, and PADOVANO, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

06-3717.pdf

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An appeal from the Circuit Court of Baker County, Victor L. Hulslander, Judge.

Appellant Carl Barnes, pro se.

Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Carl Barnes appeals an order dismissing his petition for writ of habeas corpus. Because the petition fails to state a facially sufficient claim for relief pursuant to either Florida Rule of Criminal Procedure 3.850 or 3.800(a), we affirm.

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As the circuit court explained, a petition for habeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief. See Baker v. State, 878 So. 2d 1236 (Fla. 2004); Harris v. State, 789 So. 2d 1114 (Fla. 1st DCA 2001). Given this, the court “must determine whether appellant’s petition states a facially sufficient claim for relief pursuant to either Florida Rule of Criminal Procedure 3.850 or 3.800(a).” Id., at 1115.

The court cannot treat Barnes’ habeas corpus petition as a motion filed under rule 3.850 because it was not filed within two years of the date his sentence became final. See Fla. R. Crim. P. 3.850(b) (Time Limitations). In addition, the petition is facially insufficient as a 3.850 motion because it does not contain much of the information required by the rule. See Fla. R. Crim. P. 3.850(c) (Contents of Motion).

The petition is also facially insufficient when considered as a 3.800(a) motion. “Rule 3.800(a) is intended to permit the correction only of sentencing errors that are clear from the face of the record, and result in substantive harm to the complainant.” Harris, 789 So. 2d at 1115. Barnes makes no allegation that the sentencing error he complains of is clear from the face of the record.

AFFIRMED.

BARFIELD, KAHN and PADOVANO, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

06-1956.pdf

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An appeal from the Circuit Court for Escambia County, Linda Nobles, Judge.

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

Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

This is a direct appeal from Appellant’s conviction and sentence for felony murder by aggravated child abuse. Because the trial court allowed the admission of improper evidence, we reverse.

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Defense counsel filed a motion in limine seeking to exclude testimony that the child suffered a broken arm and leg approximately one month prior to his death because the State failed to provide timely Williams rule notice. The State conceded that it failed to comply with the notice requirement, but argued that the evidence should be admitted because it was inextricably intertwined with the charged crime. The trial court allowed the admission of the evidence under this theory.

“Evidence is inextricably intertwined if the evidence is necessary to (1) adequately describe the deed, (2) provide an intelligent account of the crime(s) charged, (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up to the charged crime(s).” Dorsett v. State, 944 So. 2d 1207, 1213 (Fla. 3d DCA 2006) (en banc) (citations omitted). In this case, the testimony was not necessary to establish any of the above criteria because the broken bones were not related to the cause of death and the events happened a month prior to the child’s death. Although the broken bones required the use of a body cast, the causes of the injuries were not established to be relevant as inextricably intertwined or similar fact evidence.

The State urges this court to affirm the trial court’s ruling because the evidence could have also been admitted as Williams rule evidence. However, the State never argued this ground for admission before the trial court because it failed to timely comply with the statutory notice requirement. Thus, the trial court never considered

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the evidence within the parameters of section 90.404(2), Florida Statutes (2003), and defense counsel was never afforded an opportunity to argue against the admission on such grounds. Therefore, it would be improper for this court to affirm the trial court’s ruling on this basis. Robertson v. State, 829 So. 2d 901, 906-09 (Fla. 2002).

The trial court also erred by allowing testimony that Appellant punished the child by requiring him to stand on one leg in a corner as Williams rule evidence. Because there was no testimony concerning the duration or frequency of the punishment, there was insufficient evidence to establish that this form of punishment constituted child abuse. State v. Lee, 531 So. 2d 133, 135 (Fla. 1988). These errors cannot be considered harmless beyond a reasonable doubt under the circumstances of this case. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986); Henrion v. State, 895 So. 2d 1213, 1217 (Fla. 2d DCA 2005). We therefore reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

WOLF, DAVIS, and THOMAS, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

05-4987.pdf

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