Florida Criminal Law Opinions

LENORRIS PARKER, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D04-1939

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

August 31, 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. Thomas H. Bateman, III, Judge.

DISPOSITION:  

AFFIRMED.

COUNSEL:   Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

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

JUDGES:   BARFIELD, ALLEN, and HAWKES, JJ., CONCUR.

OPINION  

PER CURIAM.

The appellant, Lenorris Parker, raises several issues on direct appeal. Only one issue merits discussion. Mr. Parker contends that the trial court erred in sentencing him as a prison releasee reoffender because the State adduced only hearsay to prove the date of his release from prison. The State did not offer a witness to establish appellant’s release date. At the original sentencing hearing, the State relied on inadmissible hearsay to establish appellant’s release date, similar to evidence that the Court ruled insufficient in Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005), review denied 920 So. 2d 628 (Fla. 2005). Relying on Gray, appellant filed a 3.800(b) motion to correct sentencing error. At the resentencing hearing, the State relied on a “Certification of Records.” The document introduced by the State during the resentencing hearing provided:

I, Ramona  [*2]  Cox-Pye, hereby certify that I am a custodian of records of the Florida Department of Corrections…. I hereby certify the following:

a) that as part of my regular duties I maintain custody and control of the official records of the Florida Department of Corrections,

b) that the attached DC14 computer data record of Lenorris Q. Parker, DC No. N01172 consisting of 7 pages reflects entries of information that were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters,

c) that it is the regular practice of the Florida Department of Corrections to make, keep, and maintain the attached computer data during the course of regularly conducted business,

d) and that the attached computer data record is a true and correct copy of the original record contained in the official records of the Florida Department of Corrections maintained pursuant to Section 945.25.Computer printouts detailing his intake, assignments, disciplinary records, and 7/20/02 release date were attached.

In Gray, the document the State offered to establish the date Mr. Gray had been released from prison purported to be a Department of  [*3]  Corrections employee’s declaration or affirmation certifying that the seal in the letterhead was official, and that Mr. Gray was released on a certain date. As the panel on appeal noted,

Ms. Smith’s statement constituted hearsay, and the State proved no proper predicate for its admission under any exception to the rule excluding hearsay. The document fails to identify the official records on which it relied, if any, does not state that it is a true and correct representation of any record, and does not say where or in whose custody any original official or business records are kept. As Ms. Smith’s statement is essentially a (defective) affidavit devoid of any reference to records the DOC maintains, see Belvin v. State, 30 Fla. L. Weekly D1421, D1422, –So.2d –, –, 2005 WL 1336497 (Fla. 4th DCA June 8, 2005) (disapproving resort to “affidavits … prepared for use at a criminal prosecution”), it is less deserving of consideration than the probation officer’s testimony we held should have been excluded in the King case.Gray, 910 So. 2d at 869-870. The document introduced by the State at resentencing in the present case, however, does not suffer from the deficiencies noted with regard  [*4]  to the document at issue in Gray.

Section 90.902(11), Florida Statutes, provides:

90.902 Self-authentication.–Extrinsic evidence of authenticity as a condition precedent to admissibility is not required for:

. . .

(11) An original or a duplicate of evidence that would be admissible under s. 90.803(6), which is maintained in a foreign country or domestic location and is accompanied by a certification or declaration from the custodian of the records or another qualified person certifying or declaring that the record:

(a) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters;

(b) Was kept in the course of the regularly conducted activity; and

(c) Was made as a regular practice in the course of the regularly conducted activity, provided that falsely making such a certification or declaration would subject the maker to criminal penalty under the laws of the foreign or domestic location in which the certification or declaration was signed.The affidavit attached to the records in the present case satisfied the requirements of section 90.902(11), Florida Statutes. We reject Mr. Parker’s argument  [*5]  that application of this provision, which became effective after the date of the commission of his offenses, is unconstitutional in violation of the ex post facto provision. Mr. Parker erroneously asserts that prior to enactment of section 90.902(11), the State would have been required to present a witness with personal knowledge of his release date from prison. Instead, the State would have been required to present the live testimony of a records custodian. Section 90.902(11), in the present context, does not result in a conviction based on less evidence than the law required at the time the offense was committed. We also reject Mr. Parker’s argument that the evidence presented to establish his alleged release date from prison violated his right of confrontation set forth in the Sixth Amendment to the United States Constitution. See Peterson v. State, 911 So. 2d 184 (Fla. 1st DCA 2005) (Department of Corrections records were not testimonial, and thus admission of those records to determine defendant’s status as a prison releasee reoffender (PRR) for sentencing purposes did not violate his rights under Confrontation), review denied 920 So. 2d 628 (Fla. 2005).

AFFIRMED.

BARFIELD, ALLEN,  [*6]  and HAWKES, JJ., CONCUR.

EON G. COOPER, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-5635

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

August 31, 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 Jackson County. William L. Wright, Judge.

DISPOSITION:  

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

COUNSEL:   Nancy A. Daniels, Public Defender, Joel Arnold and Archie F. Gardner, Jr., Assistant Public Defenders, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   KAHN, BENTON, AND VAN NORTWICK, JJ., CONCUR.

OPINION  

PER CURIAM.

Eon G. Cooper appeals an order denying his motion to correct sentencing error which was filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Cooper argues that the trial court erred in not correcting his sentence to reflect credit for time he served in the Jackson County jail and time served in the Broward County jail. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

Appellant was convicted of grand larceny in Jackson County and, on March 9, 2004, he was sentenced to five years probation, with the special condition that he serve 90 days in jail. He was given 42 days jail time credit. On March 28, 2006, the appellant was arrested in Broward County. He  [*2]  was in the custody of the Broward County jail on the new charges from March 28, 2006, until he was transferred to the Jackson County jail on September 7, 2006. The warrant for appellant’s violation of probation (VOP) in the Jackson County case was served on September 8, 2006. Because of his arrest on the new charges and other violations of the conditions of his probation, the appellant’s probation was revoked. On October 20, 2006, the circuit court imposed a fifteen-month prison sentence, with credit for 90 days jail time served. According to the jail records, the appellant was in the Jackson County jail November 5 and 6, 2003, from January 25 to April 2, 2004, and from September 7 to October 20, 2006.

The appellant appealed and filed a 3.800(b)(2) motion to correct sentencing error. In his motion, he contended that he was entitled to 115 days of credit for time served in Jackson County, instead of the 90 days reflected in the sentencing order, and that he should be given credit in the instant case for the seven months he spent in the Broward County jail. The trial court accepted the argument of the State that the appellant had been given credit for 132 days (90 days + 42 days). Accordingly,  [*3]  although the court recognized the appellant had served more than 90 days in jail, the court denied the motion, reasoning that the appellant had already received more jail time credit than he was due.

The State concedes that the appellant should be given credit for more than 90 days served and submits that the sentencing documents should correctly reflect the number of days the appellant has served in the Jackson County jail. n1 In Sinks v. State, 691 So. 2d 1202, 1204 (Fla. 4th DCA 1997), the State similarly conceded that the trial court had incorrectly calculated the amount of credit for time served and that the written statement on record did not reflect the correct total. The court directed that, on remand, the trial court should correct the written record to reflect the correct amount of credit for time spent. Id.; See also Hough v. State, 671 So. 2d 839, 840 (Fla. 2d DCA 1996) (recognizing in a similar situation that a defendant’s sentencing documents need to reflect award of unforfeited prison credit).

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We do not address the dispute between the parties whether the Jackson County jail time credit is 112 or 115 days, as the trial court never addressed this issue.
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As for the time appellant  [*4]  spent in the Broward County jail, he relies on Kendrigan v. State, 941 So. 2d 529 (Fla. 4th DCA 2006) for his contention that he is entitled to credit in this proceeding for the time served in the Broward County jail. However, Kendrigan is inapposite as it awarded credit for jail time from the date of arrest for the new offenses because the new offenses constituted the basis for revoking probation. In this case, appellant’s probation was revoked based on his arrest for new offenses and other violations of the conditions of his probation. More on point is this court’s decision in Hardenbrook v. State, 953 So. 2d 717-718 (Fla. 1st DCA 2007). There, we held that credit for jail time spent in another county must be given only when the sentences run concurrently. Here, appellant makes no argument that the Jackson County and Broward County sentences will run concurrently.

Further, appellant is not entitled to credit for time served in Broward County because the warrant for VOP was not executed until September 8, 2006. Gethers v. State, 838 So. 2d 504, 505 (Fla. 2003) (”absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or  [*5]  more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.”) Thus, we affirm that portion of the order on appeal.

As to the jail credit for time served in Jackson County, we reverse and remand for further proceedings. On remand, the trial court shall correct the appellant’s sentence to reflect the amount of jail time served in the Jackson County jail. Griffin v. State, 828 So. 2d 1087, 1088 (Fla. 1st DCA 2002) (stating that the trial court is required to correct a defendant’s sentence to award the full amount of jail credit earned).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

KAHN, BENTON, AND VAN NORTWICK, JJ., CONCUR.

KEITH A. SHRUM, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1606

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

August 31, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Marion County, Hale R. Stancil, Judge.

DISPOSITION:  

AFFIRMED in part; REVERSED in part and REMANDED.

COUNSEL:   Keith A. Shrum, Lake Butler, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   TORPY, LAWSON and EVANDER, JJ., concur.

OPINION  

PER CURIAM.

Appellant challenges the summary denial of his motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(l). We affirm the summary denial in all respects except Appellant’s contention that the fine imposed was in violation of the plea agreement. The plea agreement is not in the record on appeal. n1 When we ordered that it be filed, the lower court clerk was unable to locate it. Therefore, Appellant’s contention that the fine violated the plea agreement has not been refuted by the record. On remand, the lower court is directed to conduct an evidentiary hearing on this point or attach portions of the record that conclusively refute the claim.

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Although the plea agreement is not in the record on appeal, Appellant furnished the court with what he purports to be a copy of the plea agreement. The document is not signed by a judge but does  [*2]  bear the purported signature of the assistant state attorney. Whether the document is authentic will have to be determined by the trial court on remand.
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AFFIRMED in part; REVERSED in part and REMANDED.

TORPY, LAWSON and EVANDER, JJ., concur.

ROBERT STRICKROTH, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-2768

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 31, 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 Sarasota County; Andrew D. Owens, Jr., Judge.

DISPOSITION:  

Reversed.

COUNSEL:   Peter M. Collins, Sarasota, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   LaROSE, Judge. SALCINES and VILLANTI, JJ., Concur.

OPINION BY:   LaROSE

OPINION  

LaROSE, Judge.

Robert Strickroth appeals his conviction for cocaine possession; he pleaded no contest, reserving the right to appeal the trial court’s denial of his motion to suppress evidence. See Fla. R. App. P. 9.140(b)(2)(A)(i). The trial court sentenced Mr. Strickroth to eighteen months of probation. Because the police lacked probable cause to arrest Mr. Strickroth, we reverse.

Facts

Following the receipt of anonymous complaints over several weeks about illegal drug transactions, Sarasota Police Officer Shanafelt and several other officers set up surveillance of an apartment complex. The surveillance was an impromptu endeavor of these patrol officers. Officer Shanafelt had been a police officer for eight years. He had no formal narcotics training but had made approximately seventy-five drug arrests. Officer Shanafelt had arrested someone near the apartment complex two weeks earlier for  [*2]  possession of cocaine.

During his surveillance, Officer Shanafelt, from a distance, saw two men “counting things out in their hands.” He did not see what they were holding. Nevertheless, he interpreted this as “indicative of somebody selling rock cocaine.” From about fifty feet away, Officer Shanafelt observed what he believed were three drug transactions. The first involved an encounter between the two men and a man on a bicycle. The bicyclist left the area without incident. The second involved a pedestrian who exchanged something with the two men, then left the area. Although he did not see what was exchanged, Officer Shanafelt called a nearby patrol unit and instructed them to stop and investigate the pedestrian whom he described. Cocaine was found on the pedestrian, who described the seller to the patrol officer. Our record is silent as to whether Officer Shanafelt knew these facts when he observed the third transaction.

In the third transaction, Officer Shanafelt saw one of the two men he was watching–whom we now know matched the description given by the pedestrian in the second encounter–approach a white van with a stripe and exchange something with the driver. Again, Officer  [*3]  Shanafelt did not see what changed hands. He was confident, however, that he had seen a drug transaction. He, again, called a nearby patrol unit and directed them to stop the van.

Officer Worthington, who responded to the call, stopped the van and ordered the driver, Mr. Strickroth, to exit the vehicle. No one else was in the van. Officer Worthington’s practice was to assume that everyone she stopped was armed. Accordingly, she immediately handcuffed Mr. Strickroth. As it turned out, Mr. Strickroth was not armed and Officer Worthington had no objective information suggesting that he was armed or dangerous. Two other officers arrived promptly at the scene. They put Mr. Strickroth in their police car and searched him. They found cocaine in his pocket.

In denying Mr. Strickroth’s motion to suppress, the trial court concluded that the police had probable cause to believe that he possessed cocaine. The trial court specifically found that Mr. Strickroth was arrested when Officer Worthington ordered him out of the van and handcuffed him.

Analysis

Florida law recognizes three levels of police-citizen encounters: (1) a consensual encounter involving minimal police contact in which the citizen is  [*4]  free to leave; (2) an investigatory stop requiring “a well-founded, articulable suspicion of criminal activity”; and (3) an arrest supported by “probable cause that a crime has been or is being committed.” Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). The parties do not dispute that Officer Worthington had reasonable suspicion to conduct an investigatory stop of Mr. Strickroth. See id. at 187.

But, the trial court concluded that Mr. Strickroth was under arrest the moment Officer Worthington ordered him out of the van and immediately handcuffed him. The record supports this factual determination, and we see no legal basis to disturb the trial court’s ruling on this point. See State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001). Thus, we must consider whether Officer Worthington had probable cause to arrest Mr. Strickroth. We recognize that Officer Worthington acted on instructions from Officer Shanafelt. Consequently, our examination necessarily focuses on whether Officer Shanafelt had probable cause that could be imputed to Officer Worthington. n1

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“[T]he collective knowledge of police investigating a crime is imputed to each member under a rule of law often called the ‘fellow officer  [*5]  rule’ or ‘collective knowledge doctrine.’” Johnson v. State, 660 So. 2d 648, 657 (Fla. 1995); see also State v. Marrero, 890 So. 2d 1278, 1282 (Fla. 2d DCA 2005). It can involve direct communications between officers who have sufficient information and the officer who stops the suspect, or it can involve general communications among officers of whom at least one possesses the required level of suspicion. See State v. Peterson, 739 So. 2d 561, 565 (Fla. 1999).
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“[R]easonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); State v. Hendrex, 865 So. 2d 531, 534 (Fla. 2d DCA 2003). Probable cause to arrest, however, demands a heightened level of certainty about the suspect’s involvement in a crime. Revels v. State, 666 So. 2d 213, 215-16 (Fla. 2d DCA 1995). Factors supporting a finding of probable cause include (1) evidence of the officers’ training and experience in drug investigations; (2) well-planned and well-controlled surveillance procedures; (3) actual proof of the area’s history of drug activity; (4) detailed proof of prior drug sales immediately preceding  [*6]  the arrest; (5) prior knowledge of a suspect’s involvement in drug activity; and (6) a detailed written arrest report that confirms factual details that establish probable cause. Id. at 216-17. Based on the record before us, we conclude that Officer Shanafelt and, by extension, Officer Worthington, lacked probable cause to arrest Mr. Strickroth.

As noted earlier, Officer Shanafelt had no formal narcotics training and was participating in what can be best described as a spontaneous surveillance. Although Officer Shanafelt had made a drug arrest in the general area two weeks earlier, the surveillance was set up based on anonymous complaints. Our record does not disclose that Officer Shanafelt had any prior knowledge concerning Mr. Strickroth’s drug activity or whether the two men he was watching were known drug dealers. Significantly, we cannot say that Officer Shanafelt, at the time he observed the encounter with Mr. Strickroth, knew that the pedestrian from the second transaction had been arrested with cocaine obtained from a person whom Officer Shanafelt later saw with Mr. Strickroth. Particularly important is the fact that Officer Shanafelt did not see cash or drugs change hands in  [*7]  any of the three transactions he observed. In Revels, 666 So. 2d 213, we held that the surveilling officers had probable cause to radio a patrol officer to stop and search the defendant. Revels, however, involved experienced narcotics officers who actually saw currency exchanged for a small object. See id. at 214. That the officers saw money exchanged was “critical to our decision.” Id. at 215.

Our decision in Burnette v. State, 658 So. 2d 1170, 1171 (Fla. 2d DCA 1995), is more to the point. There, the officers saw a “hand-to-hand” transaction, but saw no money or drugs change hands. The surveilling officers radioed other officers, who stopped Mr. Burnette’s car and found cocaine. Id. Although the officers had reasonable suspicion for an investigatory stop, we held that they lacked probable cause for an arrest. Id. We come to the same conclusion here.

Based on Officer Shanafelt’s observations and directions, Officer Worthington had reasonable suspicion to conduct an investigatory stop. As the trial court correctly concluded, however, she immediately arrested Mr. Strickroth. Burnette compels us to conclude that the officers arrested Mr. Strickroth without probable cause. See id.; Cocke v. State, 889 So. 2d 132, 135 (Fla. 4th DCA 2004);  [*8]  Johnson v. State, 813 So. 2d 1027, 1028 (Fla. 3d DCA 2002) (holding that handcuffing temporary detainee was improper where not reasonably justified by threat to officer’s safety or suspect’s attempt to flee). Consequently, the trial court should have granted the motion to suppress. Mr. Strickroth’s conviction cannot stand.

Reversed.

SALCINES and VILLANTI, JJ., Concur.

CURTIS LARON ROUSE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-414 and 5D06-468

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

August 31, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Jeffrey M. Fleming, Judge.

DISPOSITION:  

AFFIRMED.

COUNSEL:   Rudolph C. Campbell, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

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

OPINION BY:   ORFINGER

OPINION  

ORFINGER, J.

Curtis L. Rouse appeals a sentencing order entered following a resentencing proceeding conducted pursuant to Heggs v. State, 759 So. 2d 620 (Fla. 2000). On appeal, he contends that the trial court erred by including victim injury points on his sentencing guidelines scoresheet contrary to the holdings of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We disagree and affirm.

Following a jury trial, Mr. Rouse was convicted of second-degree murder, resulting from an incident that occurred in December 1996. In a special finding, the jury found that Mr. Rouse used a firearm in the commission of the crime. At his initial sentencing, a 1995 guidelines scoresheet was utilized, which included points for victim injury. Pursuant to Heggs, Mr. Rouse was resentenced using a 1994 sentencing guidelines scoresheet, which again included victim injury  [*2]  points. Unlike the earlier 1995 scoresheet, points were also added for a prior offense. Mr. Rouse then filed a timely notice of appeal. While this appeal was pending, he filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The motion alleged that the trial court erred by including points for a prior offense. Relying on Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005), Mr. Rouse also argued that the holding of Apprendi should have applied to his resentencing, thus, precluding the inclusion of any victim injury points, as no jury finding was made on that issue. The trial court found that the points for his prior offense were appropriate and denied his Apprendi claim, relying on this Court’s opinion in Langford v. State, 929 So. 2d 598 (Fla. 5th DCA 2006).

Mr. Rouse contends that because the jury made no finding of victim injury, the trial court’s inclusion of victim injury points on his sentencing scoresheet violated his Sixth Amendment right to have all facts increasing his sentence beyond the statutory maximum found by a jury, as explained in Apprendi, and clarified by Blakely. Apprendi instructs that any facts supporting the imposition of  [*3]  a sentence beyond the statutory maximum must be found beyond a reasonable doubt by a jury or admitted by the defendant. 530 U.S. at 490. Blakely clarified that the “statutory maximum” is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 542 U.S. at 303-04.

Mr. Rouse’s challenge can be successful only if Apprendi and Blakely applied to his 2006 resentencing resulting from his 1999 conviction, and cites the First District’s decision in Isaac to support his contention. However, he acknowledges this Court’s decision in Langford is contrary to his position. In Langford, we held that Apprendi and Blakely do not apply to cases, such as this one, when the conviction became final before Apprendi was decided, even though resentencing took place post-Apprendi due to a scoresheet error. Langford, 929 So. 2d at 600. In so holding, we aligned ourselves with the Second, Third and Fourth District Courts of Appeal, and certified conflict with Isaac. See, e.g., Thomas v. State, 914 So. 2d 27 (Fla. 4th DCA 2005); Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005), affirmed but criticized, 955 So. 2d 517 (Fla. 2007);  [*4]  Burrows v. State, 890 So. 2d 286 (Fla. 2d DCA 2004), review denied, 914 So. 2d 952 (Fla. 2005).

Even if Apprendi does apply, we must perform a harmless error analysis. See Galindez v. State, 955 So. 2d 517 (Fla. 2007). Under a harmless error analysis, we must determine if the record “demonstrates beyond a reasonable doubt that a rational jury” would have found victim injury. Id. at 523. On this record, we easily conclude that any error in not having a jury make the finding needed to assess victim injury points on the scoresheet for second degree murder was harmless. The jury’s verdict demonstrates beyond a reasonable doubt that it concluded that Mr. Rouse injured the victim, resulting in the victim’s death. Consequently, the inclusion of victim injury points on the scoresheet, regardless of the retroactivity of Apprendi and Blakely, was harmless. As a result, we need not certify conflict with Isaac.

Finding no merit in Mr. Rouse’s remaining claim, we affirm the trial court’s judgment.

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.

JOSE MARRERO, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-19

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 31, 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 Hillsborough County; Anthony K. Black, Judge.
Marrero v. State, 912 So. 2d 1229, 2005 Fla. App. LEXIS 16295 (Fla. Dist. Ct. App. 2d Dist., 2005)

DISPOSITION:  

Affirmed.

JUDGES:   SILBERMAN, Judge. ALTENBERND and VILLANTI, JJ., Concur.

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

Jose Marrero appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court concluded that Marrero’s motion was untimely. We affirm.

In December 2001, the trial court sentenced Marrero as a habitual felony offender (HFO) to thirty years’ imprisonment for attempted trafficking in heroin and fifteen years’ imprisonment for possession of heroin with intent to sell. This court affirmed the convictions and sentences. See Marrero v. State, 840 So. 2d 238 (Fla. 2d DCA 2003) (table decision). Our mandate issued in March 2003.

Marrero timely filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(c), alleging ineffective assistance of appellate counsel in his direct appeal. He claimed that counsel was ineffective for failing to argue that the trial court convicted him of a nonexistent crime and that his HFO sentence was illegal. This court found the first claim to be without merit but  [*2]  granted the petition as to the second claim. The court concluded that “[b]ecause Marrero’s HFO sentence would have required reversal had the issue been raised on direct appeal, we reverse his sentence and remand for resentencing.” Marrero v. State, 864 So. 2d 1131, 1132 (Fla. 2d DCA 2003). In June 2004, the trial court resentenced Marrero. Marrero appealed, and this court affirmed the new sentence. See Marrero v. State, 912 So. 2d 1229 (Fla. 2d DCA 2005) (table decision). Our mandate issued in November 2005.

In March 2006, Marrero filed a rule 3.850 motion, asserting three claims seeking relief from his convictions. He alleged that his conviction of attempted trafficking in heroin was unlawful, that his trial counsel was ineffective in failing to raise the defense of entrapment, and that trial counsel was ineffective in failing to argue and move for dismissal of the attempted trafficking offense based on the defense of abandonment.

The postconviction court, in the order before us for review, summarily denied the motion as untimely. The court determined that Marrero’s judgment and sentence became final in March 2003 following the conclusion of his initial appeal and that he had until  [*3]  March 2005 to timely file a postconviction motion attacking his convictions. The postconviction court found that there were no applicable exceptions to extend the two-year period. The court cited to Joseph v. State, 835 So. 2d 1221 (Fla. 5th DCA 2003), and stated that Marrero’s resentencing and the entry of an amended judgment and sentence in June 2004 did not extend the time for Marrero to file his postconviction motion.

We agree with the postconviction court’s conclusion. Subject to certain exceptions not applicable here, rule 3.850(b) provides a two-year period for the filing of a motion for postconviction relief “after the judgment and sentence become final in a noncapital case.” A judgment and sentence become final for purposes of the rule “when any such direct review proceedings have concluded and jurisdiction to entertain a motion for post-conviction relief returns to the sentencing court.” Ward v. Dugger, 508 So. 2d 778, 779 (Fla. 1st DCA 1987); see also Cardali v. State, 794 So. 2d 719, 721 (Fla. 3d DCA 2001) (citing Ward). Under rule 3.850, Marrero’s judgment and sentence became final in 2003 when his direct appeal concluded. At that time, jurisdiction to entertain a motion  [*4]  for postconviction relief returned to the sentencing court. See Ward, 508 So. 2d at 779.

When a claim of ineffective assistance of appellate counsel is successful, the remedy is to award the petitioner a new appeal in order that the appellate court may determine the merits of an issue that should have been raised in the original direct appeal. See Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985). In resolving Marrero’s claim of ineffective assistance of appellate counsel, this court granted relief solely as to his HFO sentence for attempted trafficking. Marrero, 864 So. 2d at 1132.

There was no impediment to Marrero filing his rule 3.850 motion alleging ineffective assistance of trial counsel during the two-year period beginning in March 2003, after his direct appeal was concluded. His filing of a petition alleging ineffective assistance of appellate counsel did not deprive the postconviction court of jurisdiction to consider any rule 3.850 motion that he might have filed. See Gawronski v. State, 801 So. 2d 211, 211 (Fla. 2d DCA 2001) (stating “that the pendency of the rule 9.141(c) petition did not deprive [the postconviction court] of jurisdiction to entertain the rule 3.850  [*5]  motion”).

Similarly, had Marrero timely filed a rule 3.850 motion, he would not have been precluded from also timely filing a rule 9.141(c) petition. As the supreme court concluded in Francois v. Klein, 431 So. 2d 165, 166 (Fla. 1983), because a claim of ineffective assistance of trial counsel is necessarily separate and distinct from a claim of ineffective assistance of appellate counsel, the pendency in one court of one kind of claim does not deprive the other court of jurisdiction to proceed on the other claim.

We have found no authority stating that the filing of a rule 9.141(c) petition alleging ineffective assistance of appellate counsel tolls the time for filing a rule 3.850 motion. Had Marrero sought relief under both rules, each court would have had jurisdiction to consider his separate claims. See Francois, 431 So. 2d at 166; Gawronski, 801 So. 2d at 211. In Joseph, cited by the postconviction court, the Fifth District observed that the two-year limitation contained in rule 3.850 “is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered.” 835 So. 2d at 1222 n.3. Although a rule 9.141(c) petition alleging ineffective assistance  [*6]  of appellate counsel is filed in the appellate court rather than the trial court, we conclude that such a petition does not toll the two-year limitation contained in rule 3.850.

In summary, there was no basis for Marrero to delay seeking relief under rule 3.850 following the conclusion of his original appeal in 2003. n1 The fact that his rule 9.141(c) petition resulted in his being resentenced on one of his convictions did not reopen the expired time period for filing his rule 3.850 motion as to matters that he could have raised during the two-year period beginning in March 2003. n2

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We also note that Marrero did not seek an extension of the two-year deadline for filing a rule 3.850 motion. See State v. Boyd, 846 So. 2d 458, 459-60 (Fla. 2003) (holding that “the Florida Rules of Criminal Procedure allow a court to extend the two-year deadline for seeking postconviction relief” but adding that such an extension of time “is not designed to indefinitely expand the two-year deadline, but only to afford a defendant a short period of extra time to file the motion where good cause is shown”). 2

Rule 9.141(c) also provides a mechanism for an individual to seek a belated appeal. We do not address  [*7]  whether the analysis here would equally apply to a case involving a petition for belated appeal as opposed to a petition alleging ineffective assistance of appellate counsel.
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The result that we reach is consistent with the rationale behind the adoption of rule 3.850. As the supreme court stated in Johnson v. State, 536 So. 2d 1009, 1011 (Fla. 1988),

The credibility of the criminal justice system depends upon both fairness and finality. The time limitation of rule 3.850 accommodates both interests. It serves to reduce piecemeal litigation and the assertion of stale claims while at the same time preserves the right to unlimited access to the courts where there is newly discovered evidence or where there have been fundamental constitutional changes in the law with retroactive application.See also State v. Green, 944 So. 2d 208, 217 (Fla. 2006) (discussing the adoption of the time limitation contained in rule 3.850 and repeating the observation that “‘[t]here is no reason why a defendant, through the exercise of due diligence, cannot determine his basis for collateral attack during that period of time’” (quoting McCrae v. State, 437 So. 2d 1388, 1391 (Fla. 1983) (Alderman, C.J., concurring  [*8]  in result only))); Baker v. State, 878 So. 2d 1236, 1238-44 (Fla. 2004) (explaining the history of rule 3.850).

Accordingly, we affirm the order summarily denying Marrero’s postconviction motion.

Affirmed.

ALTENBERND and VILLANTI, JJ., Concur.

THOMAS MICHAEL McGEE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-783

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 31, 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; W. Douglas Baird, Judge.

DISPOSITION:  

Affirmed in part; reversed in part.

COUNSEL:   James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   KELLY, Judge. DAVIS and WALLACE, JJ., Concur.

OPINION BY:   KELLY

OPINION  

KELLY, Judge.

Thomas McGee appeals from his judgment and sentence for possession of child pornography. We find merit only in his argument that the trial court erred in imposing certain costs upon him.

At sentencing, the trial court orally imposed court costs, investigative costs, and a public defender fee, stating: “The Court will impose $ 450 in court costs concurrent on everything as a lien. $ 200 for the public defender, the investigative costs of $ 360 to Clearwater on the possession of pornography charge.” The trial court’s written order imposed costs in a lump sum of $ 850. The only costs specifically identified as being included in the $ 850 amount were “$ 2.00 to the Criminal Justice Education Fund, a $ 40.00 Indigent Criminal Defense Fee as required by s. 27.52, F.S., and Investigative Costs in the amount  [*2]  of $ 360.00 pursuant to 938.27, F.S.” McGee challenged the remaining $ 448 in unidentified costs and the public defender’s fee by filing a motion under Florida Rule of Criminal Procedure 3.800(b)(2). The motion was deemed to be denied when the court did not rule on it within sixty days.

Because at sentencing the trial court did not provide a precise description of the costs it was imposing and the sentencing order does not identify the remaining $ 448, we cannot determine whether that amount consists of unidentified mandatory costs, discretionary costs that were not properly announced at sentencing, or a combination of both. Accordingly, we strike the unidentified costs. See Miller v. State, 912 So. 2d 1282 (Fla. 2d DCA 2005) (holding that mandatory costs may be imposed without notice but that discretionary costs require notice and an opportunity to be heard and that in both cases the record must contain citations to the statutory authorities for imposing the costs). On remand, the trial court may reimpose the stricken costs if it identifies statutory authority for their assessment and, for any discretionary fines or costs, provides McGee with notice and an opportunity to contest their  [*3]  imposition. See Fisher v. State, 697 So. 2d 1291 (Fla. 1st DCA 1997).

We also strike the $ 200 public defender’s fee because McGee was not given an opportunity to object to the fee at sentencing. Florida Rule of Criminal Procedure 3.720(d)(1) provides that the defendant must be advised at sentencing of his right to a hearing to contest the amount of the public defender’s lien. See Miller, 912 So. 2d at 1283. McGee shall have thirty days from our mandate to file a written objection to the amount assessed for the public defender’s fee. See id. If he files an objection, the court shall hold a hearing. If McGee fails to timely object, the court may reimpose the public defender’s fee without a hearing. See id.

Accordingly, we affirm McGee’s judgment and sentence, strike the $ 448 in unidentified costs and the $ 200 public defender fee, and remand for further proceedings limited to those issues.

Affirmed in part; reversed in part.

DAVIS and WALLACE, JJ., Concur.

BILLY DEE LEWIS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-3188

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 31, 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 Hillsborough County; Manuel A. Lopez, Judge.

DISPOSITION:  

Affirmed and remanded with instructions.

COUNSEL:   James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Lewis.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   FULMER, Judge. SALCINES, J. and GALLEN, THOMAS M., ASSOCIATE SENIOR JUDGE, Concur.

OPINION BY:   FULMER

OPINION  

FULMER, Judge.

Billy Dee Lewis challenges the revocation of his drug offender probation, raising three issues. Although we agree with his argument challenging the sufficiency of the evidence for the new law violation, we affirm because the revocation was supported by the evidence that Lewis moved from his approved address without permission.

Lewis first argues that the trial court departed from its role as a neutral magistrate when it questioned the State’s witnesses at the hearing. We reject this argument because the transcript shows that the trial court asked some clarifying questions of witnesses, but the court did not take over the prosecution’s role or otherwise abandon its role as a neutral magistrate through its questioning.

Lewis next asserts that the evidence  [*2]  was insufficient to support a violation based on Condition 3, requiring him to obtain permission before moving from his approved address, because the evidence was solely hearsay. We reject this argument because the evidence was not solely hearsay and it clearly showed that Lewis absconded from the PAR program in violation of his probation. The director of the program, who testified, had personal knowledge that Lewis was not at the program after a certain date.

Lewis finally asserts that the evidence was insufficient to support a violation based on Condition 5 by committing the new offense of burglary. We agree that the evidence was insufficient to show that Lewis committed a burglary. At most, the evidence showed that Lewis ran from the police and hid in a house that belonged to someone else. The occupants of the house (the owner’s children) would not give police permission to enter. The owner later gave the police permission to enter. There was no evidence that Lewis had entered the house surreptitiously or unlawfully or that he intended to commit any offense therein.

Although the evidence does not support the Condition 5 violation, we nonetheless affirm because the Condition 3 violation  [*3]  was substantial, and the record indicates that the trial court would have revoked the probation based on the Condition 3 violation alone. See Pollard v. State, 930 So. 2d 854 (Fla. 2d DCA 2006). We remand for the trial court to strike the finding concerning the violation of Condition 5 and enter a corrected revocation order.

Affirmed and remanded with instructions.

SALCINES, J. and GALLEN, THOMAS M., ASSOCIATE SENIOR JUDGE, Concur.

ANTONIO BRAVO, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-1760

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 31, 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 Polk County; Dick Prince and Roger Allan Alcott, Judges.

DISPOSITION:  

Affirmed.

COUNSEL:   Keith P. Ligori, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   WALLACE, Judge. FULMER and DAVIS, JJ., Concur.

OPINION BY:   WALLACE

OPINION  

WALLACE, Judge.

Antonio Bravo appeals from the judgment and sentence imposed on him after he pleaded no contest to trafficking in amphetamine. Mr. Bravo reserved the right to appeal the trial court’s dispositive order denying his motion to suppress contraband that he discarded during a tussle with law enforcement officers. Because Mr. Bravo abandoned the contraband after an arrest based on probable cause, we affirm his judgment and sentence.

I. THE FACTS

The facts in this case are undisputed. On the afternoon of April 12, 2002, Sergeant Charles Michael Baldwin of the Polk County Sheriff’s Office executed a warrant for the arrest of John Doe n1 at Mr. Doe’s residence in Polk County. Sergeant Baldwin was accompanied by two agents from the Drug Enforcement Agency (the DEA), Armando Guerrero and Terry Corn. The charges against Mr. Doe in the warrant were for the sale of methamphetamine  [*2]  and possession of methamphetamine. Based on events that occurred during his arrest, Mr. Doe was also charged with possession of cannabis and possession of drug paraphernalia.

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The name “John Doe” is a pseudonym.
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Shortly after his arrest, Mr. Doe agreed to cooperate with the officers in exchange for their promise to inform the State Attorney about his “substantial assistance.” To that end, Mr. Doe identified Mr. Bravo as his methamphetamine supplier and agreed to arrange a purchase of the drug from Mr. Bravo. Later that afternoon and evening, Mr. Doe made several telephone calls from his residence to Mr. Bravo at Mr. Bravo’s place of employment. The three officers monitored and recorded these calls. During one of the calls, Mr. Doe told Mr. Bravo that he had enough money to purchase “one,” indicating one ounce of methamphetamine. Mr. Bravo responded that he would come to Mr. Doe’s residence when Mr. Bravo completed his duties at work. Notably, Mr. Bravo also told Mr. Doe, “I’ll bring as much as I can.”

On the day Mr. Doe was arrested, the officers had never previously used him as an informant. Nevertheless, one or more of the DEA agents–including Agent Corn–had previously conducted  [*3]  surveillance operations against Mr. Bravo. As a result of this surveillance, the agents had a photograph of Mr. Bravo and had already identified him as the person they suspected was acting as Mr. Doe’s methamphetamine supplier. The agents had also seen Mr. Doe at Mr. Bravo’s place of employment. In addition to making the monitored telephone calls, Mr. Doe told the officers that he generally purchased one-half ounce of methamphetamine from Mr. Bravo. Mr. Doe also told the officers that Mr. Bravo made the deliveries at Mr. Doe’s residence using a red sports utility vehicle. Finally, Mr. Doe supplied the interesting detail that Mr. Bravo wrapped the drugs in black electrical tape–forming a “black ball”–and carried them in his pocket.

At 9 p.m. that evening, Mr. Bravo called Mr. Doe and said that he was in the area and would be arriving shortly. The three officers remained stationed inside Mr. Doe’s house. They were wearing “raid vests” that identified them as law enforcement officers. The officers recognized Mr. Bravo when he arrived at the residence about ten minutes after the last telephone call. He was driving a red sports utility vehicle. Mr. Doe greeted Mr. Bravo on the porch and  [*4]  made small talk while he led Mr. Bravo into the living room.

As soon as Mr. Bravo entered the living room, the officers emerged from hiding and began what Sergeant Baldwin would later describe as “the takedown.” The three officers announced: “Police[!] You’re under arrest[!]” Next, Agents Guerrero and Corn attempted to grab Mr. Bravo’s arms and handcuff him. The force of this encounter spun Mr. Bravo around so that he was facing Sergeant Baldwin. The sergeant watched as Mr. Bravo reached into one of his pockets, removed some items, and threw the items to the living room floor. After these objects landed on the floor, Agents Guerrero and Corn were able to handcuff Mr. Bravo.

Sergeant Baldwin immediately retrieved the items that Mr. Bravo had thrown to the floor. He found a package of cigarettes and what appeared to be a ball of black electrical tape. Inside the electrical tape were two baggies containing methamphetamine. Then the officers searched Mr. Bravo and recovered $ 1270 in United States currency.

II. THE TRIAL COURT’S ORDER

Sergeant Baldwin and Agent Guerrero were the only witnesses who testified at the hearing on Mr. Bravo’s motion to suppress. After the hearing, the trial court  [*5]  entered a lengthy written order with detailed findings of fact and conclusions of law. The trial court found that the initial encounter between Mr. Bravo and the two DEA agents that had prompted him to discard the contraband was not an arrest but rather “a detention, based on reasonable suspicion.” The trial court concluded that “because it was not until after [Mr. Bravo] threw the drugs on the ground that the arrest was achieved, the arrest was supported by probable cause pursuant to the plain view doctrine.” On these grounds, the trial court ruled that “the detention and subsequent arrest were properly supported by reasonable suspicion and probable cause, respectively.” n2

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We commend the trial court for its thorough and thoughtful order disposing of Mr. Bravo’s motion to suppress. The trial court’s order has facilitated this court’s review of this case.
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III. THE STANDARD OF REVIEW

We employ a mixed standard of review in considering the trial court’s ruling on Mr. Bravo’s motion to suppress. The trial court’s determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However,  [*6]  the trial court’s determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); Connor v. State, 803 So. 2d 598, 608 (Fla. 2001); E.B. v. State, 866 So. 2d 200, 202 (Fla. 2d DCA 2004).

IV. MR. BRAVO’S ARGUMENTS

On appeal, Mr. Bravo appears to concede that the officers had a reasonable suspicion of criminal activity that would have justified his temporary detention. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (identifying three levels of police-citizen encounters, including (1) a consensual encounter, (2) a temporary detention or investigatory stop, and (3) an arrest). But Mr. Bravo contends that the trial court erred in finding that the officers had conducted only a temporary detention before he discarded the contraband. Mr. Bravo argues that the officers simply arrested him–without probable cause. If Mr. Bravo was illegally arrested, it follows that the trial court erred in denying his motion to suppress. A suspect who abandons or discards property as a result of an illegal stop or arrest does so involuntarily, and the abandoned or discarded property must be suppressed. See  [*7]  State v. Anderson, 591 So. 2d 611, 613 (Fla. 1992); Baggett v. State, 849 So. 2d 1154, 1157 (Fla. 2d DCA 2003).

V. FRAMING THE ISSUES

Based on Mr. Bravo’s arguments, the initial question we address is whether the trial court correctly concluded that the law enforcement officers temporarily detained Mr. Bravo to further their investigation and arrested him only after he discarded the contraband. If the answer to this question is in the affirmative, then we must affirm Mr. Bravo’s judgment and sentence. n3 But if the answer to this question is in the negative, then we must address the State’s alternative argument that the officers had probable cause to arrest Mr. Bravo as soon as he walked into Mr. Doe’s living room. n4 See § 901.15(3), Fla. Stat. (2001); Popple, 626 So. 2d at 186 (stating that an arrest “must be supported by probable cause that a crime has been or is being committed”).

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Mr. Bravo does not contend that the officers lacked the reasonable suspicion necessary to conduct a temporary detention. 4

We may consider the State’s alternative argument under the rule of appellate efficiency commonly referred to as the “tipsy coachman” rule. See Robertson v. State, 829 So. 2d 901, 906-07 (Fla. 2002);  [*8]  Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999).
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VI. DISCUSSION

A. Temporary Detention or Arrest?

The trial court based its legal reasoning largely on this court’s decision in State v. Hendrex, 865 So. 2d 531 (Fla. 2d DCA 2003). In Hendrex, the defendant had been arrested after police officers, with guns drawn, ordered him to get out of his car and lie on the ground. Id. at 533. The defendant “removed a small plastic bag containing a white powdery substance from his . . . pocket and placed it on the ground . . . as he lay down.” Id. The Hendrex court determined that the initial stop was “an investigatory stop and not an arrest” and that the defendant’s voluntary production of the contraband provided the probable cause to convert the stop into an arrest. Id. at 534. Here, the trial court determined that the officers’ initial encounter with Mr. Bravo was similar to the stop under review in Hendrex and that Mr. Bravo’s jettison of the black ball provided the necessary probable cause to justify his arrest.

We disagree. Sergeant Baldwin testified that when Mr. Bravo entered Mr. Doe’s residence, “[t]here was no real time lapse” and that the events happened “very  [*9]  quick[ly].” The sergeant explained that Mr. Doe led Mr. Bravo into the living room where Agent Guerrero and Agent Corn “attempt[ed] to detain him.” Sergeant Baldwin said that Mr. Bravo “turned facing me upon being taken down” and pulled the black ball containing the contraband from his pocket before the agents were able to secure his hands. Agent Guerrero testified that he did not see Mr. Bravo throw anything on the floor while the agents were restraining him. He described his encounter with Mr. Bravo, stating, “I approached him and attempted to grab his arm and place handcuffs on him.” The agent said that his mask interfered with his ability to see everything that happened. He continued, “[W]hen I made contact with him, there was a little slight scuffle trying to get the handcuffs on him, and my mask was, you know, was thrown around my face a bit until we were able to handcuff him.”

At the hearing on the motion to suppress, Sergeant Baldwin described the incident in Mr. Doe’s living room as a “takedown.” [n5] The sergeant testified that the officers believed that they had probable cause to arrest Mr. Bravo before he entered the residence. Before Mr. Bravo had even walked into the house,  [*10]  the officers’ plan was to arrest him and search him. Neither Sergeant Baldwin nor Agent Corn testified that they intended to advance their investigation by speaking with Mr. Bravo before proceeding further. What is more, neither of the officers ever suggested during the hearing that they believed that they needed to search Mr. Bravo because they were concerned for their safety. n6 Furthermore, the officers’ testimony did not indicate that their plans changed once Sergeant Baldwin saw Mr. Bravo discard the black ball. Rather, Sergeant Baldwin testified that the officers intended to arrest and search Mr. Bravo “based on the totality of the circumstances of . . . the phone calls, . . . the time frame of his arrival, the description of his vehicle upon arrival, the identification of him upon arrival, and the fact that he entered into the residence.” Without question, the scope of the search that the officers had in mind exceeded the limited pat-down search for weapons that would have been permissible during a temporary detention of Mr. Bravo. See Frazier v. State, 789 So. 2d 486, 488 (Fla. 2d DCA 2001) (recognizing that a pat-down search may be executed if, “during a lawful investigatory  [*11]  stop, [the] officer has probable cause to believe that a subject is armed” and noting that once the officer determines that there are no weapons present, the search should end).

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The officer’s characterization of the incident after the fact is not controlling. However, this court understands that the term “takedown”–when used in this context–denotes an arrest. See Johnson v. State, 581 So. 2d 220, 221 (Fla. 2d DCA 1991). In sports, the term “takedown” refers to “[a] move or maneuver in wrestling or the martial arts in which a standing opponent is forced to the floor.” The American Heritage Dictionary of the English Language 1764 (4th ed. 2000). Law enforcement officers often employ such a move or maneuver when making an arrest. It is for this reason that we suppose that the word “takedown” has become a slang expression for the arrest of a suspect by a police officer. See takedown – Wiktionary, http://en.wiktionary.org/wiki/ takedown (last visited Aug. 10, 2007). 6

In fact, Mr. Bravo was unarmed.
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To resolve the question of whether the officers temporarily detained Mr. Bravo or arrested him, we consider the elements of an arrest. An arrest includes the following four elements:

(1) A  [*12]  purpose or intention to effect an arrest under a real or pretended authority; (2) [a]n actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) [a] communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) [a]n understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him. Melton v. State, 75 So. 2d 291, 294 (Fla. 1954) (citations omitted). Reviewing the facts of this case in light of these four elements, we note the following. First, the officers’ admitted intention was to arrest Mr. Bravo. Second, Mr. Bravo was seized when the two DEA agents grabbed his arms and began to place handcuffs on him. Third, as soon as Mr. Bravo had entered Mr. Doe’s living room, the officers announced their status as law enforcement officials and informed Mr. Bravo that he was under arrest. Fourth, Mr. Bravo clearly understood that the officers’ intention was to arrest him. Thus all of the elements of an arrest are present here. See State v. Gonzalez, 870 So. 2d 200, 201-02 (Fla. 3d DCA 2004)  [*13]  (holding that a suspect had been placed under arrest when he was rushed by law enforcement officers, ordered out of his car at gunpoint, thrown to the ground, and handcuffed while lying face down on a parking lot).

For these reasons, we conclude that the officers arrested Mr. Bravo as soon as he entered Mr. Doe’s living room. The trial court incorrectly determined that the officers’ initial stop of Mr. Bravo was an investigatory stop that became an arrest only after Mr. Bravo discarded the black ball.

B. Reasonable Suspicion or Probable Cause?

Having determined that the officers’ arrest of Mr. Bravo was immediate rather than deferred until after he had discarded the contraband, we must now reach the question of whether they had probable cause to make the arrest or if the officers acted based on a mere suspicion. In addressing this question, we “consider the ‘totality of [the] circumstances’ that led to the discovery of [the] evidence.” Hendrex, 865 So. 2d at 533 (first alteration in original) (quoting State v. Butler, 655 So. 2d 1123, 1128 (Fla. 1995)). Sergeant Baldwin testified that either Agent Corn or another DEA agent had already conducted surveillance operations on Mr. Bravo. Further,  [*14]  the sergeant testified, “I heard on the other end of the phone Mr. Bravo telling Mr. [Doe] that he would be there when he got off work, and he would bring as much as he could when he got off work.” (Emphasis added.) Sergeant Baldwin also testified that the final telephone conversation between Mr. Doe and Mr. Bravo was a call from Mr. Bravo to Mr. Doe that occurred approximately ten minutes before Mr. Bravo arrived at Mr. Doe’s residence. During that call, Mr. Bravo said that he would be arriving at Mr. Doe’s residence “very soon.” Mr. Bravo did not present any evidence to contradict the sergeant’s testimony on these points. Instead, he merely noted that the officers could not be certain of the identity of the person with whom Mr. Doe was speaking on the telephone.

Mr. Bravo correctly observes that most of the officers’ information was obtained from Mr. Doe, who did not have a record as a reliable, confidential informant. However, we agree with the trial court’s assessment that Mr. Doe was a reliable, albeit unproven, informant for many of the same reasons that we found the informant in Hendrex to be reliable: Mr. Doe demonstrated his ability to influence and predict Mr. Bravo’s behavior,  [*15]  and Mr. Doe’s statements were against his own penal interest and reflected his desire to “curry favor with the authorities.” See Hendrex, 865 So. 2d at 535. Mr. Doe was unlikely to get his “substantial assistance” letter from the officers if he misled them. Furthermore, the detailed information that Mr. Doe gave the officers indicated that he had first-hand knowledge of Mr. Bravo’s drug-selling activities–a fact that the officers already suspected from their observations of Mr. Doe at Mr. Bravo’s place of employment. See State v. Butler, 655 So. 2d 1123, 1128 (Fla. 1995) (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)) (noting that an informant’s basis of knowledge continues to be a ” ‘relevant consideration[ ]‘ in an overall totality of circumstances analysis”).

Although the officers did not observe Mr. Bravo committing any crime before they arrested him, they did verify the details that Mr. Doe had provided about the color and model of Mr. Bravo’s vehicle and the typical transaction wherein he would deliver the methamphetamine at Mr. Doe’s residence. The officers had also identified Mr. Bravo from their prior surveillance operations. Most important, the officers had heard  [*16]  the person on the telephone that Mr. Doe identified as Mr. Bravo stating that he would bring as much as he could. The officers reasonably believed that this statement was a promise to deliver a quantity of methamphetamine. Under these circumstances, we conclude that the officers had probable cause to believe that Mr. Bravo was engaged in committing a felony when he entered Mr. Doe’s residence. Here, because the officers verified the details “except for the final one of the commission of the crime,” the arrest was valid. State v. Flowers, 566 So. 2d 50, 51 (Fla. 2d DCA 1990); see also Butler, 655 So. 2d at 1129-31 (approving Flowers, 566 So. 2d at 51, and State v. Brown, 556 So. 2d 790 (Fla. 2d DCA 1990)).

VII. CONCLUSION

For these reasons, the trial court properly denied Mr. Bravo’s motion to suppress. Accordingly, we affirm Mr. Bravo’s judgment and sentence.

Affirmed.

FULMER and DAVIS, JJ., Concur.

STEVEN WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-387

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 31, 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 Pasco County; Lynn Tepper, Judge.

DISPOSITION:  

Affirmed.

JUDGES:   STRINGER, Judge. DAVIS and WALLACE, JJ., Concur.

OPINION BY:   STRINGER

OPINION  

STRINGER, Judge.

Steven Williams appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and his motion for rehearing. We affirm the postconviction court’s summary denial as it relates to the review of Williams’ originally stated claim.

In his rule 3.800(a) motion, Williams claims that his concurrent thirty-year sentences for two second-degree felony convictions of aggravated battery exceed the statutory maximum. In denying the claim, the postconviction court stated that Williams was sentenced as a habitual violent felony offender (HVFO) pursuant to section 775.084(4)(b), Florida Statutes (1997). The postconviction court attached to its order a copy of the judgment and sentence which reflects that Williams was sentenced as an HVFO on both counts of aggravated battery pursuant to section 775.084(4)(b).

Subsequently, Williams filed a motion for rehearing. While addressing the denial of the claim presented in his rule 3.800(a) motion, Williams also  [*2]  appeared to raise a new claim that the trial court did not orally pronounce the imposition of an HVFO sentence. The postconviction court denied the motion without specifically addressing this new claim. Consequently, we affirm the postconviction court’s orders without prejudice to any right Williams may have to refile a facially sufficient rule 3.800(a) motion raising a claim that the trial court did not orally pronounce the imposition of an HVFO sentence. Such motion will not be considered successive.

Affirmed.

DAVIS and WALLACE, JJ., Concur