Florida Criminal Law Opinions

District Court of Appeal of Florida,

First District.

Warren R. JOHNSON, Appellant,

v.

STATE of Florida, Appellee.

No. 1D05-5612.

June 29, 2007.

An appeal from the Circuit Court for Hamilton County. John W. Peach, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Felicia A. Wilcox and Betty Cheramie, Assistant Attorneys General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

*1 On this direct appeal from his conviction and sentence for second degree murder while armed with a firearm, appellant argues that the trial court erred by denying his motion for judgment of acquittal because the State failed to rebut appellant’s claim of self-defense beyond a reasonable doubt. Although the offense was committed in 2003, appellant argues that, for purposes of appellate review, this court should apply sections 776.012 and 776.013, Florida Statutes (2005), which, effective October 1, 2005, statutorily eliminated the duty to retreat from the common law on self-defense under certain circumstances. Contrary to appellant’s argument on appeal, the applicable law in this case is the law which existed at the time of the offense. See State v. Smiley, 927 So.2d 1000 (Fla. 4th DCA 2006), approved by 32 Fla. L. Weekly S303 (Fla. June 7, 2007).

Because we conclude that a jury question was presented on the issue of self-defense, we affirm appellant’s conviction and sentence. See Hoffman v. State, 708 So.2d 962 (Fla. 5th DCA 1998); Hunter v. State, 687 So.2d 277 (Fla. 5th DCA 1997).

AFFIRMED.
ALLEN, WOLF, and POLSTON, JJ., concur. 

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District Court of Appeal of Florida,

Second District.

Allie Charles BESSETTE, Appellant,

v.

STATE of Florida, Appellee.

No. 2D06-2354.

June 29, 2007.

Appeal from the Circuit Court for Hillsborough County; Barbara Fleischer and William Fuente, Judges.

Rick Terrana, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

*1 Finding no abuse of discretion in the trial court’s rulings that are challenged on appeal, we affirm Bessette’s convictions without further discussion. We also affirm his sentences and point out that the minimum mandatory terms on counts six, seven, and eight were imposed as part of his violent career criminal sentencing under section 775.084(4)(d), Florida Statutes (2003). Because the sentences were not imposed under section 775.087(2), they did not require specific jury findings regarding Bessette’s actual possession of a firearm.

Affirmed.
SALCINES, J., and COBB, WARREN H., Associate Senior Judge, Concur. 

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WALTER RICHIE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5094

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

June 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Robert J. Morris, Jr., Judge.

DISPOSITION:  

Affirmed in part, reversed in part, and remanded.

JUDGES:   SALCINES, Judge. ALTENBERND and DAVIS, JJ., Concur.

OPINION BY:   SALCINES

OPINION  

SALCINES, Judge.

Walter Richie appeals the summary denial of claims one and three of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s denial of claim three without comment. We reverse the denial of claim one and remand for further proceedings.

On May 18, 2005, Richie admitted to violating the terms of his probation imposed in five Pinellas County circuit court cases. The trial court sentenced Richie to time served for all counts in circuit court case CRC 97-04772CFANO-K and to 121 months’ prison on all counts in circuit court cases CRC 97-11794CFANO-K, CRC 97-15175CFANO-K, CRC 97-15296CFANO-K, and CRC 97-15978CFANO-K, with all sentences to run concurrently with each other. The trial court also granted jail credit in the latter four cases, with the amount ranging between ninety and 145 days. In his motion, Richie claims that the trial court granted him only fifteen days’ jail  [*2]  credit but that he is entitled to an additional 800 days’ credit for time he spent in Hillsborough County jail. The postconviction court summarily denied Richie’s claim, finding that it was facially insufficient because he failed to provide proof of his Hillsborough County confinement.

“[J]ail credit issues involving disputed issues of fact can only be resolved pursuant to rule 3.850.” Mathis v. State, 945 So. 2d 588, 588 (Fla. 2d DCA 2006)(citing Clifton v. State, 905 So. 2d 1042, 1044 (Fla. 2d DCA 2005)). Because Richie’s claim for jail credit involves a disputed issue of fact and he filed his sworn motion within two years of his violation of probation sentence becoming final, the postconviction court should have treated his motion as filed pursuant to rule 3.850. See Rinderer v. State, 857 So. 2d 955 (Fla. 4th DCA 2003) (remanding the denial of a motion to correct sentence to the postconviction court to reconsider as if filed under rule 3.850 because the motion was sworn and timely under the rule); see also Snell v. State, 890 So. 2d 1292 (Fla. 2d DCA 2005).

Accordingly, we reverse the denial of Richie’s claim and remand. On remand, the postconviction court shall attach portions of  [*3]  the record that conclusively refute Richie’s claim or, if necessary, hold an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and DAVIS, JJ., Concur.

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STATE OF FLORIDA, Appellant, v. C.R., Appellee.

Case No. 2D06-1158

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

June 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Pinellas County; Irene H. Sullivan, Judge.

DISPOSITION:  

Reversed and remanded.

COUNSEL:   Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.

No appearance for Appellee.

JUDGES:   KELLY, Judge. FULMER, C.J., and ALTENBERND, J., Concur.

OPINION BY:   KELLY

OPINION  

KELLY, Judge.

The State appeals from the trial court’s disposition order that places C.R. on probation. The State argues that the trial court erred in failing to impose fifteen days of detention as required by section 790.22(9), Florida Statutes (2005). n1 We agree and reverse.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

Section 790.22(9) states in pertinent part:

(9) Notwithstanding s. 985.214, if the minor is found to have committed an offense that involves the use or possession of a firearm, as defined in s. 790.001, other than a violation of subsection (3), or an offense during the commission of which the minor possessed a firearm, and the minor is not committed to a residential commitment program of the Department of Juvenile Justice, in addition to any other punishment provided by law, the court shall order:

(a)  [*2]  For a first offense, that the minor shall serve a minimum period of detention of 15 days in a secure detention facility.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

C.R., a juvenile, was charged by delinquency petition with possession of a loaded firearm by a minor and discharging a firearm in public. C.R. entered a guilty plea to the charges. At the disposition hearing, the State argued that the trial court was required by statute to impose a fifteen-day term of detention on C.R. for discharging a firearm. The defense pointed out that the trial court had not imposed detention on C.R.’s codefendants for the same offenses and argued that C.R. should receive the same disposition as his codefendants. n2 The trial court agreed that C.R. should be sentenced consistently with his codefendants and declined to impose detention.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2

It appears from the record that the State did not appeal the sentences imposed in the codefendants’ cases.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Although we sympathize with the trial court’s attempt to treat all the codefendants fairly and consistently, we agree with the State that the trial court had no discretion to refuse to impose the mandatory fifteen-day detention on C.R. See State v. R.L.S., 712 So. 2d 1220 (Fla. 2d DCA 1998); State v. R.C.S., 837 So. 2d 517 (Fla. 3d DCA 2003).  [*3]  We likewise have no choice but to follow the statute.

Accordingly, we reverse the disposition order and remand with directions that the trial court impose the term of detention required by section 790.22(9) in addition to any other punishment already imposed.

Reversed and remanded.

FULMER, C.J., and ALTENBERND, J., Concur.

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JASON EARLS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-0508

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

2007 Fla. App. LEXIS 10044

June 29, 2007, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Leon County. Kathleen Dekker, Judge.

DISPOSITION:  

REVERSED AND REMANDED.

COUNSEL:   Jason Earls, Pro se, Appellant.

Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   BENTON, HAWKES, and THOMAS, JJ., CONCUR.

OPINION  

PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court improperly denied the appellant’s motion as untimely, we reverse.

On August 25, 2004, pursuant to a plea of nolo contendere, the appellant was sentenced to ten years’ imprisonment followed by two years’ probation for armed robbery with a firearm. He did not file a direct appeal of his judgment and sentence. The certificate of service on the appellant’s motion for postconviction relief reflects that the motion was placed in the hands of prison officials for mailing on September 22, 2006. The trial court denied the motion as untimely.

The denial of the appellant’s motion as untimely was improper. The two-year time limitation for filing motions for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 does not  [*2]  begin to run until appellate proceedings have concluded and the court issues a mandate or thirty days after the trial court enters its order if no direct appeal is filed. See Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988). Because the appellant did not file a direct appeal, his conviction and sentence became final and the two-year time limitation began to run on September 24, 2004. Under the mailbox rule, the date that a motion is placed into the hands of prison officials for filing is the date that the motion is considered filed. Thompson v. State, 761 So. 2d 324 (Fla. 2000). Accordingly, the appellant’s motion was timely filed on September 22, 2006.

We therefore reverse the trial court’s summary denial of the appellant’s motion for postconviction relief as untimely, and remand for the trial court to consider the motion on the merits.

REVERSED AND REMANDED.

BENTON, HAWKES, and THOMAS, JJ., CONCUR.

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