Florida Criminal Law Opinions

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.

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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.

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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.

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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.

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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

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