Florida Criminal Law Opinions

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

Case No. 5D06-3668

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

April 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Orange County, Reginald K. Whitehead, Judge.

DISPOSITION:   AFFIRMED.

COUNSEL:   James Harper, Orlando, Pro se.

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

JUDGES:   TORPY, J. GRIFFIN and SAWAYA, JJ., concur.

OPINION BY:   TORPY

OPINION:   TORPY, J.

Appellant challenges the lower court’s order that summarily denied his petition for habeas corpus on procedural grounds. Although we do not agree that Appellant’s petition was procedurally barred, we nevertheless affirm because the petition is without merit. See Smith v. State, 782 So. 2d 955 (Fla. 1st DCA 2001) (habeas petition not procedurally barred because raises issue that may be raised at any time).

Appellant alleges that his conviction for a probation violation was improper because the conviction was solely based upon alleged violations that were the subject of an amended affidavit that was first filed after his term of probation had expired, contrary to the holding in State v. Hall, 641 So. 2d 403 (Fla. 1994). Since that decision, however, section 948.06, Florida Statutes, has been amended  [*2]  to include a provision tolling the probationary period upon the filing of an affidavit alleging a violation of probation and expressly conferring continuing jurisdiction on the trial court to address “any violation . . . that is alleged to have occurred during the tolling period.” Appellant acknowledges this statutory change but urges that it may not be applied to him because to do so violates the constitutional prohibition against ex post facto laws, citing Frye v. State, 885 So. 2d 419 (Fla. 1st DCA 2004). We disagree and distinguish Frye.

In Frye, the defendant had been placed on probation before the statute was changed. The court held that the statutory change could not be applied to him under the ex post facto clause. Id. at 420. Here, by contrast, although the underlying offense for which Appellant was placed on probation is alleged to have occurred before the statutory change, Appellant was not placed on probation until well after the statutory change. Under these circumstances, the ex post facto clause is clearly not implicated. See Gwong v. Singletary, 683 So. 2d 109 (Fla. 1996) (test for statutory scrutiny  [*3]  under the ex post facto clause is whether the law is retrospective in effect and whether it alters the elements of the crime or increases the potential punishment).

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

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CHARLES HAYES, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1749

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

April 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Orange County, Daniel P. Dawson, Judge.

DISPOSITION:   AFFIRMED.

COUNSEL:   James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

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

OPINION BY:   MONACO

OPINION:   MONACO, J.

Charles Hayes appeals from the judgment and sentence rendered by the trial court after his conviction of sexual battery by a person over 18 upon a person less than 12 years of age in violation of section 794.011(2), Florida Statutes (2006), and lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes (2006). He raises as the sole issue on this appeal whether the trial court erred in denying his motion to strike the venire. We affirm on two bases.

First, we find no error on the merits with respect to the trial court’s decision not to strike the entire venire. A venire member’s expression of an opinion stated during a voir dire examination, without more, is ordinarily not considered sufficient  [*2]  to taint the remainder of the panel. See Johnson v. State, 903 So. 2d 888, 897 (Fla.), cert. denied, 126 S. Ct. 802, 546 U.S. 1064, 163 L.Ed.2d 632 (2005); Brower v. State, 727 So. 2d 1026, 1027 (Fla. 4th DCA), review denied, 744 So. 2d 452 (Fla. 1999). With the exception of one venire person who did not sit on the jury, the remainder of the venire said that the questioned comments of the venire person would not affect their perception of Mr. Hayes.

Second, we conclude that Mr. Hayes failed to preserve this issue for review. Although Mr. Hayes did not formally accept the jury panel, he failed to renew his objection or motion to strike the panel prior to the jury being sworn in. We held in Martin v. State, 816 So. 2d 187, 188 (Fla. 5th DCA 2002), that jury selection issues are “deemed to be waived after acceptance of the jury, unless the objection is renewed, or the jury is accepted subject to an earlier objection.” See also Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993).

Here, after the jury was selected the court recessed for the night. When asked on the following morning prior to the jury being sworn whether  [*3]  there was anything else that either the State or the defense wished to say, the defense responded, “No.” The jury was then sworn. The case law teaches that even if a litigant makes no statement affirmatively accepting a jury, the requirement remains that objections to the panel must be renewed. See Lavin v. State, 754 So. 2d 784, 786 (Fla. 3d DCA 2000); Milstein v. Mutual Sec. Life Ins. Co., 705 So. 2d 639, 641 (Fla. 3d DCA 1998). In our judgment the issue was waived when the objection was not renewed prior to the swearing of the jury.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.

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ERIC CORNELIUS KNIGHT, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-3263

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

April 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Lake County, T. Michael Johnson, Judge.

DISPOSITION:   REMANDED for Correction of Scriveners’ Errors.

COUNSEL:   James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   ORFINGER, MONACO and EVANDER, JJ., concur.

OPINION:   PER CURIAM.

Both Knight and the State agree that the two written orders of revocation appear to contain a scriveners’ error. Specifically, the trial court verbally pronounced that Knight had violated Conditions (1) and (8) of his probation, but had not violated Condition (3). However, the written orders of revocation provide that Knight had violated Conditions (1), (3) and (8). It is well-established that, where a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls. Brown v. State, 786 So. 2d 1257 (Fla. 5th DCA 2001).

We remand this cause solely for the purpose of enabling the trial court to enter written orders of revocation, nunc pro tunc, in accordance with its oral pronouncement. Knight  [*2]  does not need to be present. Mosco v. State, 640 So. 2d 1219 (Fla. 5th DCA 1994).

REMANDED for Correction of Scriveners’ Errors.

ORFINGER, MONACO and EVANDER, JJ., concur.

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I.M., A Child, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-6322

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

April 26, 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. A. C. Soud, Jr., Judge.

DISPOSITION:   We reverse the restitution order and remand with directions that the trial court conduct a new restitution hearing. REVERSED and REMANDED, with directions.

COUNSEL:   Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   ALLEN, WEBSTER, and BENTON, JJ., CONCUR.

OPINION:   PER CURIAM.

In this juvenile delinquency case, appellant challenges a restitution order, contending that the trial court erred (1) in holding a restitution hearing in appellant’s absence and (2) ordering restitution without determining the amount appellant might reasonably be expected to pay. We agree and, accordingly, reverse the restitution order and remand for a new restitution hearing.

Appellant was absent from one hearing during which, over an objection by appellant’s counsel, the trial court heard testimony and determined the amount of restitution. A juvenile has a constitutional  [*2]  right to be present at hearings to determine the imposition and amount of restitution absent a voluntary and intelligent waiver of that right. E.g., M.W.G. v. State, 945 So. 2d 597, 600 (Fla. 2d DCA 2006); T.A.S. v. State, 892 So. 2d 1233, 1234-35 (Fla. 2d DCA 2005); J.B. v. State, 646 So. 2d 808 (Fla. 1st DCA 1994). Because appellant was not present and there is nothing to suggest a voluntary and intelligent waiver, he is entitled to a new restitution hearing. See M.W.G., 945 So. 2d at 600; T.A.S., 892 So. 2d at 1235.

The trial court ordered the future payment of restitution without allowing appellant to present evidence as to his future ability to pay or making an express finding regarding future ability to pay. This, too, was error. While a court may order an unemployed or incarcerated delinquent child to pay restitution without a showing of present ability to pay, it must determine what the child might reasonably be expected to earn upon finding suitable employment and base the amount of restitution on those anticipated earnings. E.g., M.W.G., 945 So. 2d at 601; R.D.S. v. State, 844 So. 2d 720, 720-21 (Fla. 2d DCA 2003);  [*3]  A.J. v. State, 677 So. 2d 935, 938 (Fla. 4th DCA 1996); J.A.M. v. State, 601 So. 2d 278 (Fla. 1st DCA 1992); J.M.H. v. State, 589 So. 2d 394, 395-96 (Fla. 1st DCA 1991).

We reverse the restitution order and remand with directions that the trial court conduct a new restitution hearing.

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER, and BENTON, JJ., CONCUR.

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JAMAL CHE GLENN, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-0765

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

April 26, 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. Henry E. Davis, Judge.

DISPOSITION:   REVERSED and REMANDED.

COUNSEL:   Jamal Che Glenn, Pro se, Appellant.

Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   THOMAS, J. KAHN and HAWKES, JJ., CONCUR.

OPINION BY:   THOMAS

OPINION:   THOMAS, J.

Appellant appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. In light of the 2006 change in Florida law, we reverse.

On October 2, 1998, Appellant pled guilty to first-degree murder and robbery. Appellant filed a rule 3.853 motion seeking DNA testing of evidence collected during the investigation of the crimes, including samples from the victim’s clothing and personal effects, fibers, nail scrapings, and “other minuscule debris,” as well as hair samples. Appellant’s motion is facially sufficient, alleging that he is innocent, that identity was a material issue at trial, that no DNA testing of the relevant evidence occurred, and that DNA testing will exonerate  [*2]  him. See 925.11(2), Fla. Stat. (2006).

The trial court denied Appellant’s motion, relying on language in section 925.11(1)(a), Florida Statutes (2005), which limits the right to file rule 3.853 motions to those who have been tried and found guilty of a felony, and effectively excludes those who entered a guilty or nolo contendere plea to such crimes. However, section 925.11(1)(a)2. was amended in 2006 to allow for postconviction DNA testing in cases where the defendant enters a plea of guilty or nolo contendere to a felony. See § 925.11(1), Fla. Stat. (2006); Lindsey v. State, 936 So. 2d 1213 (Fla. 5th DCA 2006). Section 925.11(1)(a)2., Florida Statutes (2006), provides:

A person who has entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006, and has been sentenced by a court established by the laws of this state may petition that court to order the examination of physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced that may contain DNA (deoxyribonucleic acid) and that would exonerate that  [*3]  person.

Courts must first look to the plain language of a statute when construing its meaning. See Montgomery v. State, 897 So. 2d 1282, 1285 (Fla. 2005). When the language is clear and unambiguous, there is no room for statutory interpretation or judicial construction. Id.; State v. Jett, 626 So. 2d 691, 692 (Fla. 1993).

The language of section 925.11(1)(a)2. is clear and extends the right to file a motion for postconviction DNA testing not only to those who entered a guilty or nolo contendere plea after the change in the law, but also includes those who entered a plea to a felony before July 1, 2006. Because Appellant filed a facially sufficient motion for postconviction DNA testing, his motion cannot be denied solely on the basis of his 1998 plea.

In response to this court’s order to show cause why this case should not be remanded, the State argues that Appellant failed to meet his burden of justifying his delay in seeking DNA testing and failed to provide an explanation as to why the evidence at issue was not tested at the time his plea was entered. Specifically, the State argues that Appellant failed to explain the seven-year gap between  [*4]  his conviction and the filing of his rule 3.853 motion, and failed to offer facts that justified such a delay.

In support of its argument, the State cites Hitchcock v. State, 866 So. 2d 23 (Fla. 2004). The State, however, incorrectly interprets the language of the supreme court’s opinion. The State appears to argue that because the court in Hitchcock determined that the intent of rule 3.853 is to provide an opportunity for DNA testing of evidence not previously tested, or of evidence previously tested but with inconclusive results and subsequent developments in testing techniques would provide a definitive result, the defendant bears the burden of explaining and justifying why DNA testing of the evidence at issue was not sought before the postconviction stage of the proceedings. However, nothing in Hitchcock indicates that the court intended to place the burden on the defendant to make such explanations and justifications; rather, the court found that the allegations were inadequate on the merits. Further, nothing in rule 3.853 or section 925.11, Florida Statutes (2006), places this type of burden on the defendant. Finally, in light  [*5]  of the strict pleading requirements found in rule 3.853, this type of burden cannot be inferred. As such, we find the State’s argument and reliance on Hitchcock unpersuasive.

In light of the plain language of section 925.11(1)(a)2., Florida Statutes (2006), this case must be remanded. Accordingly, we reverse the trial court’s summary denial of Appellant’s rule 3.853 motion and remand to the trial court to address the merits of Appellant’s petition pursuant to sections 925.11(2)(c)-(f), Florida Statutes (2006).

REVERSED and REMANDED.

KAHN and HAWKES, JJ., CONCUR.

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