Florida Criminal Law Opinions

PRESTON WALTER BOERNER, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-1820

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

August 27, 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 Escambia County. Nickolas P. Geeker, Judge.

DISPOSITION:  

DISMISSED.

COUNSEL:   Glen P. Gifford, Assistant Public Defender, for Appellant.

No Appearance for Appellee.

JUDGES:   ALLEN, WOLF, and LEWIS, JJ., CONCUR.

OPINION  

PER CURIAM.

Upon consideration of the appellant’s supplemental response to order to show cause, dated June 12, 2007, the Court concludes that the motion to withdraw plea of nolo contendere or vacate judgment and sentence, which failed to cite that it was being filed in accordance with any rule and which was filed more than 30 days after the rendition of the appellant’s judgment and sentence, was untimely pursuant to Florida Rule of Criminal Procedure 3.170(l). The Court sua sponte concludes that the trial court order which denied the motion is void because the trial court had no authority to consider the merits of the motion. n1 See Lepper v. State, 826 So. 2d 363 (Fla. 2d DCA 2002) (citing Polk County v. Sofka, 686 So. 2d 580, 702 So. 2d 1243 (Fla. 1997), which states that if a court’s lack of jurisdiction becomes apparent at any stage of the proceedings, the court should enter an appropriate order to remedy the defect). It follows that the untimely filed motion to withdraw plea thus failed  [*2]  to delay rendition of the judgment and sentence pursuant to Florida Rule of Appellate Procedure 9.020(h), and consequently the notice of appeal of the judgment and sentence was also untimely pursuant to Florida Rule of Appellate Procedure 9.140(b)(3). See McGee v. State, 947 So. 2d 681 (Fla. 2d DCA 2007). Accordingly, the appeals of the motion to withdraw plea and the judgment and sentence are dismissed. See Lepper, 826 So. 2d at 364. Furthermore, the appellant’s motion for extension of time for filing appellant’s initial brief, filed on July 9, 2007, is denied as moot.

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Notably, the motion was unsworn and therefore could not be treated as a rule 3.850 motion. See Lepper.
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DISMISSED.

ALLEN, WOLF, and LEWIS, JJ., CONCUR.

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LESTER B. SHEPARD, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-0196

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

August 27, 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 Wakulla County. N. Sanders Sauls, Judge.

DISPOSITION:  

REVERSED AND REMANDED.

COUNSEL:   Lester B. Shepard, Pro se, Appellant.

Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   BARFIELD, DAVIS, and LEWIS, JJ., CONCUR.

OPINION  

PER CURIAM.

Appellant challenges the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He alleges that his sentence is illegal under Heggs v. State, 759 So. 2d 620 (Fla. 2000). Because the record does not conclusively refute the appellant’s claim, we reverse.

In order to state a cognizable claim under Heggs, one must allege that the offense at issue was committed within the window period set out in Trapp v. State, 760 So. 2d 924, 928 (Fla. 2000), and that the resulting sentence constitutes a departure from the 1994 sentencing guidelines. See Daniels v. State, 771 So. 2d 57, 57-58 (Fla. 2d DCA 2000). The motion must also include the date of the offense. See Smith v. State, 765 So. 2d 308 (Fla. 5th DCA 2000). Appellant’s motion contains the required allegations and is, therefore, facially sufficient. However, the trial court denied the  [*2]  motion without any record attachments.

We therefore reverse the trial court’s summary denial of the appellant’s motion to correct an illegal sentence and remand for the trial court to attach portions of the record that conclusively refute the appellant’s claim or to re-sentence the appellant as the record dictates.

REVERSED AND REMANDED.

BARFIELD, DAVIS, and LEWIS, JJ., CONCUR.

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JOHN BEASLEY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-549

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 24, 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; Roger Allan Alcott, Judge.

DISPOSITION:  

Affirmed in part, reversed in part, and remanded.

COUNSEL:   John Beasley, Pro se.

Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   SALCINES NORTHCUTT, C.J. and CASANUEVA, J., Concur.

OPINION BY:   SALCINES

OPINION  

SALCINES, Judge.

John Beasley appeals the denial of three grounds of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Although we approve the summary denial of two of those grounds, we must reverse the order denying relief as to the remaining one because Beasley established that counsel was ineffective in counseling him concerning a plea offer.

I. Statement of the Case

Beasley was charged with burglary of a dwelling, grand theft of a firearm, possession of a firearm by a convicted felon, three counts of dealing in stolen property, and two counts of giving false verification to a pawn shop broker. The offenses allegedly occurred on September 24, 2001. Prior to trial, the State offered Beasley a plea agreement whereby he would enter a guilty plea to all the charges and, in return, his maximum sentence for burglary of a dwelling would be limited  [*2]  to fifteen years’ imprisonment as a Prison Releasee Reoffender (PRR). n1 Beasley did not accept the plea offer.

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§ 775.082(9)(a)(1)(q), Fla. Stat. (2001).
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After a jury trial, Beasley was found guilty of possession of a firearm by a convicted felon, dealing in stolen property, and giving false verification to a pawn shop broker. The jury acquitted Beasley of the burglary charge. He was sentenced as a habitual felony offender to concurrent sentences of five years’ imprisonment for the possession of a firearm, grand theft, n2 and giving false verification to a pawn shop broker. He was sentenced to thirty years’ imprisonment as a habitual felony offender for dealing in stolen property.

II. The Motion for Postconviction Relief

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The judgment and sentence for grand theft were ultimately vacated.
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Beasley filed a timely motion for postconviction relief asserting in ground two that trial counsel was ineffective because she advised him not to accept the plea bargain offered by the State. Beasley asserted that counsel told him that he did not qualify for treatment as a PRR and the minimum mandatory fifteen-year sentence under the PRR statute would have been harsher than that which he could receive if  [*3]  he were found to be guilty of all offenses. In the motion, Beasley indicated that this advice was correct at the time it was given. However, immediately before the jury selection process commenced, the State served both Beasley and his trial counsel with notice that it intended to seek an enhanced sentence under the habitual felony offender statute. n3 The effect of the notice was to increase Beasley’s exposure from a possible sentence of fifteen years’ imprisonment to thirty years’ imprisonment.

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§ 775.084(1)(a), Fla. Stat. (2001).
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At the evidentiary hearing on ground two of the motion, Beasley asserted that trial counsel was ineffective for failing to inform him of the consequences of the habitual offender notice and that his sentence could be doubled. He stated that had he known the ramifications of the notice and that he was facing thirty years as a habitual felony offender he would have taken the plea offer of fifteen years and would not have “rolled the dice” with a jury. Although Beasley admitted that he had been in prison three times previously, he testified that he had not learned the consequences of habitual felony offender sentencing. He stated that his prior sentences were  [*4]  not long because he had received so much gain time and he was emphatic that he had never spoken to other inmates about habitual offender sentencing.

Additionally, Beasley testified that the fifteen-year offer by the State still was viable until the trial commenced. The prosecutor testified and confirmed that the offer of fifteen years as a PRR was still an option at the time the notice of intent was served on Beasley and his trial counsel.

Melissa Wilson, Beasley’s trial counsel, did not refute his allegations. She admitted that she counseled him to reject the State’s plea offer. When questioned, Attorney Wilson stated that she did not recall that “absolutely 100% [Beasley] want[ed] a trial.” This statement supports Beasley’s allegation that he would have accepted the plea agreement had he been informed of the consequences of the habitual felony offender notice.

Further, Attorney Wilson did not remember what she told Beasley about the habitual felony offender notice. Attorney Wilson stated that she had no notes concerning her conversation with Beasley about the notice because she was informed of the State’s action when they were in the holding cell immediately prior to jury selection.  [*5]  She indicated that usually she would have informed any defendant of the consequences, but due to the fact that the notice was served with such a short time period before they appeared in court, she could not accurately testify concerning what statement she may have made to Beasley. Attorney Wilson conceded that if Beasley had accepted the plea he would have faced only fifteen years as a PRR which is less than the thirty years as a habitual felony offender which he received. She testified that after the jury returned its verdict, she contacted the prosecutor and told him, “I’m not sure I properly advised this individual is there something we can do to make a deal and [the prosecutor] declined me.”

III. The Postconviction Court’s Ruling

In the order denying relief on ground two, the postconviction court specifically found, “[d]efense counsel did not then discuss the legal effects of the notice with her client.” However, the court concluded, “Even assuming ineffective assistance of counsel for failure to explicitly and directly confer with the defendant in the courtroom on 18 February when the notices were delivered that HFO enhancement would permit the Court to double the sentence, the  [*6]  Court finds that the defendant was not prejudiced as a result of that deficiency, as required by the second prong of Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)].”

The order went on to state that the court did not believe Beasley’s testimony that if he had been advised his sentence could be doubled he would have accepted the plea. The court concluded that Beasley was experienced in the criminal justice system and knew the maximum sentence he faced but “elected to take his chances with believing that he would not do any worse than the 15 year PRR offer.” The postconviction court chose not to believe Beasley’s testimony that he had not learned the consequences of a habitual offender sentence while in prison even though Beasley’s testimony that he was unaware of the consequences was unrefuted.

IV. Analysis

In Schwab v. State, 814 So. 2d 402, 408 (Fla. 2002), the supreme court discussed the two-prong test set forth in Strickland, 466 U.S. at 687, which is used to analyze claims of ineffective assistance of counsel. First, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness” based on “prevailing professional norms.” Id. (quoting Strickland, 466 U.S. at 688).  [*7]  Next, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Stickland, 466 U.S. at 694). Because both prongs of the Strickland test present mixed questions of law and fact, this court employs a mixed standard of review, deferring to the postconviction court’s factual findings that are supported by competent, substantial evidence but reviewing the court’s legal conclusions de novo. Ford v. State, 955 So. 2d 550, 553 (Fla. 2007).

When examining whether trial counsel was effective in instances where a plea agreement has been offered by the State, the supreme court set out a three-part test in Cottle v. State, 733 So. 2d 963, 967 (Fla. 1999). The court held that a prima facie case of ineffective assistance of counsel based on the rejection of a plea offer would be made if a defendant proved (1) counsel failed to communicate a plea offer or misinformed the defendant concerning the penalties; (2) the defendant would have accepted the plea offer but for the inadequate communication; and (3) acceptance of the plea offer would have resulted in a lesser sentence. The  [*8]  prejudice to the defendant that Strickland requires “is inherent in the defendant’s inability to make an informed decision concerning whether to accept the plea offer.” Eristma v. State, 766 So. 2d 1095, 1096 (Fla. 2d DCA 2000) (citing Cottle, 733 So. 2d at 969); see Rudolf v. State, 851 So. 2d 839, 841 (Fla. 2d DCA 2003).

V. Conclusion

In the present case, as discussed above, the postconviction court’s factual findings that Beasley had knowledge of the consequences of the habitual felony offender notice are not supported by competent, substantial evidence. Beasley has satisfied the three-part test set out in Cottle and has presented a prima facie case of ineffective assistance of trial counsel. Accordingly, we reverse the postconviction court’s order denying ground two of Beasley’s motion and remand. Although we have no authority to require the State to reoffer its original plea offer on remand, we suggest that the parties should engage in a “good faith resumption of plea negotiations.” See Feldpausch v. State, 826 So. 2d 354, 357 (Fla. 2d DCA 2002); see Rudolf, 851 So. 2d at 841-42; Eristma, 766 So. 2d at 1097. If negotiations take place but fail, Beasley shall be given a new trial.

Affirmed  [*9]  in part, reversed in part, and remanded.

NORTHCUTT, C.J. and CASANUEVA, J., Concur.

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A.S.P., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-4279

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 24, 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; Denise Pomponio, Judge.

DISPOSITION:  

Reversed.

COUNSEL:   James Marion Moorman, Public Defender, and Brad Permar, Assistant Public.

Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   SILBERMAN, Judge. NORTHCUTT, C.J., and LaROSE, J., Concur.

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

A.S.P. appeals his adjudication of delinquency and judicial warning for possession of a weapon on school property and contends that the trial court should have granted his motion to suppress. We agree and reverse the trial court’s adjudication and disposition order.

In its delinquency petition, the State alleged that A.S.P. committed the acts of possession of a weapon on school grounds, in violation of section 790.115(2)(b), Florida Statutes (2005), and trespass on school property with a firearm or weapon, in violation of section 810.095, Florida Statutes (2005). A.S.P. filed a motion to suppress, which the trial court denied. Following trial, the court entered its order adjudicating A.S.P. guilty of possession of a weapon on school grounds. The court found A.S.P. not guilty of the offense of  [*2]  trespass on school property with a firearm or weapon. As to the latter offense, it was undisputed that A.S.P. was not a student at Hillsborough High School but that he was there on the day in question for the legitimate business of obtaining his scores on a test he had taken to enter a GED program. See E.W. v. State, 873 So. 2d 485, 487 (Fla. 1st DCA 2004) (“The ‘legitimate business’ which would entitle one to enter or remain upon school property refers to any purpose for being there which is connected with the operation of the school.”); J.C.S. v. State, 613 So. 2d 574, 575 (Fla. 1st DCA 1993) (recognizing that juvenile was on school property for legitimate business of obtaining his transcript).

With respect to the motion to suppress, Eric Johnsen testified that he is the school security officer for Hillsborough High School. On March 1, 2006, a student pointed out A.S.P. as a trespasser. That week at school there had been some gang issues and fights, and the students had been alerted to these issues. Johnsen saw A.S.P. on the bus ramp, near the senior parking lot. Johnsen asked A.S.P. whether he was a student at Hillsborough High, and A.S.P. said no. Johnsen testified that he brought  [*3]  A.S.P. over to the car and “searched him right away.” When asked why he searched A.S.P., Johnsen said, “Because it’s a safety issue. He’s on school grounds. He’s a trespasser.” Johnsen found a knife on A.S.P.’s person, and Johnsen immediately turned the knife over to Officer Sutton of the Tampa Police Department, who then arrested A.S.P.

The trial court questioned Johnsen about what he would have done if A.S.P. had told him that he came to the school to get test scores. Johnsen said that he probably would have given A.S.P. directions to get to the proper area of the school and that if A.S.P. had said that he had school business, Johnsen would not have searched him. However, Johnsen’s testimony reflects that the only question he asked A.S.P. before immediately searching him was whether he was a student at the school.

The trial court stated that it was a close call but denied the motion to suppress “because of what had been happening in the school; the testimony that there had been problems, gangs, fights, et cetera. He said he’s not a student; therefore, they need to check him out because of the safety.”

Section 810.097(1) provides in pertinent part as follows:

(1) Any person who:

(a) Does  [*4]  not have legitimate business on the campus or any other authorization, license, or invitation to enter or remain upon school property . . .

and who enters or remains upon the campus or any other facility owned by any such school commits a trespass upon the grounds of a school facility and is guilty of a misdemeanor of the second degree . . .Section 810.097(4) provides that a law enforcement officer may arrest, without a warrant, “any person the officer has probable cause for believing has committed the offense of trespass upon the grounds of a school facility.”

Here, while Johnsen may have suspected that A.S.P. might be trespassing, the evidence did not establish probable cause to believe that A.S.P. had committed the crime of trespass upon school grounds as defined in section 810.097(1). Although A.S.P. admitted that he was not a student, Johnsen immediately searched him before ascertaining whether he had any legitimate business on campus. Under these circumstances, we cannot say that probable cause existed to arrest A.S.P. or search him incident to arrest for trespassing on school grounds.

The trial court appeared to deny the motion to suppress based on the safety issue at the school.  [*5]  Had Johnsen articulated a reasonable suspicion that A.S.P. had a weapon, we would agree that Johnsen would have been justified in doing a pat-down for weapons. “A pat-down for weapons is permissible only when the officer has a reasonable suspicion that the defendant is armed and dangerous.” Owens v. State, 854 So. 2d 737, 740 (Fla. 2d DCA 2003) (noting that the record failed to show that the officer “had a particularized suspicion that Owens was armed; thus, the pat-down for weapons was illegal”).

Johnsen admitted that he conducted a full search, not a pat-down for weapons. n1 Even if he had only conducted a pat-down, he failed to articulate any reasonable suspicion to believe that A.S.P. had a weapon on his person. Because the evidence does not reflect that Johnsen had a particularized suspicion that A.S.P. was armed, the search was illegal.

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We note that a school official may search a student based on reasonable suspicion, as articulated in the two-prong test of New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985). See T.J. v. State, 538 So. 2d 1320, 1321 (Fla. 2d DCA 1989). Here, A.S.P. was not a student at Hillsborough High School. Moreover, Johnsen had no reasonable suspicion that A.S.P.  [*6]  had a weapon.
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Therefore, the trial court erred in denying A.S.P.’s motion to suppress. We reverse the adjudication of delinquency and judicial warning for possession of a weapon on school property.

Reversed.

NORTHCUTT, C.J., and LaROSE, J., Concur.

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LAMONT BROOKENS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1496

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

August 24, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Brevard County, Tonya Rainwater, Judge.

DISPOSITION:  

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COUNSEL:   James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.

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

JUDGES:   SAWAYA, J. PLEUS and THOMPSON, JJ., concur.

OPINION BY:   SAWAYA

OPINION  

SAWAYA, J.

Lamont Brookens was found guilty by a jury of battery on a law enforcement officer, resisting an officer without violence (a lesser included offense of the crime charged, resisting with violence), tampering with evidence, and possession of drug paraphernalia. Brookens was sentenced to five years’ imprisonment as a prison releasee reoffender for the battery offense; five years’ imprisonment for the tampering offense; one year in the county jail for the resisting offense; and one year in the county jail for the possession offense. All of the sentences were ordered to be served concurrently. In this appeal, Brookens claims: (1) an erroneous jury instruction warrants reversal of his conviction for resisting an officer without violence; (2) the trial court erred in denying his motion  [*2]  for judgment of acquittal as to the battery charge; and (3) the trial court erred in utilizing the battery offense to sentence him as a prison releasee reoffender.

We affirm without further comment as to the first two issues. Regarding the third issue, however, we agree with Brookens that the trial court erroneously utilized his conviction for battery on a law enforcement officer as a qualifying offense to sentence him as a prison releasee reoffender. In State v. Hearns, 2007 Fla. LEXIS 718, 32 Fla. L. Weekly S177 (Fla. April 26, 2007), the Florida Supreme Court observed that section 775.082, Florida Statutes, which authorizes a qualifying individual to be sentenced as a prison releasee reoffender, does not specifically list battery on a law enforcement officer as a qualifying offense. The court also noted that in addition to those offenses specifically listed in the statute, section 775.082(9)(a)1. includes as a qualifying offense “[a]ny felony that involves the use or threat of physical force or violence against an individual . . . .” § 775.082(9)(a)1.o., Fla. Stat. (2005). The court analyzed the elements of the offense of battery on a law enforcement officer to determine whether it qualifies as a felony  [*3]  that involves the use or threat of physical force or violence and concluded that it does not. Because battery on a law enforcement officer is not a qualifying offense under section 775.082, Brookens was improperly sentenced as a prison releasee reoffender.

Accordingly, we reverse the sentence imposed on Brookens as a prison releasee reoffender for battery on a law enforcement officer and remand for resentencing on that count. We affirm in all other respects.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PLEUS and THOMPSON, JJ., concur.

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DAVID S. LOGAN, Appellant, v. STATE OF FLORIDA, ET AL., Appellee.

Case No. 5D06-4072

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

August 24, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Marion County, Jack Singbush, Judge.

DISPOSITION:  

AFFIRMED.

COUNSEL:   David S. Logan, Orlando, Pro se.

Bradley R. Bischoff, of Florida Parole Commission, Tallahassee, for Appellee, Florida Parole Commission.

No appearance for Appellee, State of Florida.

JUDGES:   LAWSON, J. SAWAYA and MONACO, JJ., concur.

OPINION BY:   LAWSON

OPINION  

LAWSON, J.

David S. Logan appeals from an order denying his petition for writ of habeas corpus. In his petition, Logan sought to challenge the Florida Parole Commission’s determination that he was to be released from prison to conditional release supervision pursuant to section 947.1405, Florida Statutes (2006). Finding that habeas was not the proper remedy (since Logan was not seeking to test the legality of his then-current imprisonment), the trial court denied the petition without considering Logan’s challenge to the conditional release supervision determination. n1 We have treated Logan’s petition as seeking the appropriate remedy, have considered it on the merits, and find that Logan is not entitled to relief. Therefore, we affirm.

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Logan’s petition is not a model of clarity. The same is true of his brief on appeal. From Logan’s filings it is not altogether clear whether Logan  [*2]  was awaiting release from his original sentence, or already under conditional release supervision, at the time that he filed his habeas petition. However, the trial court’s determination that Logan was not claiming a right to immediate release from incarceration appears to be correct.
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Conditional release “is an additional post-prison supervision program for certain types of offenders that the legislature has determined to be in need of further supervision after release.” Rivera v. Singletary, 707 So. 2d 326, 327 (Fla. 1998). The conditional release statute was enacted in 1988. Ch. 88-122, §§ 10, 19-20, Laws of Florida. Prior to enactment of this statute, when an inmate was released from state custody before the end of the pronounced prison term based upon the application of “gain time,” the sentence simply expired and the prisoner was considered to have completed his or her sentence in full. Lincoln v. Florida Parole Commission, 643 So. 2d 668, 670 (Fla. 1st DCA 1994). The same is true today for inmates who do not meet the criteria for conditional release. Id. However, inmates who do meet the statutory conditional release criteria are released to community supervision for a period  [*3]  equal to the amount of gain time earned while incarcerated. Mayes v. Moore, 827 So. 2d 967, 971-972 (Fla. 2002). If they violate a condition of release prior to the expiration of their full, pronounced prison term, gain time and release are revoked and they may be re-incarcerated for the balance of their sentence. Id.

A prisoner or releasee who is not claiming entitlement to immediate release from incarceration may challenge the Parole Commission’s determination that he or she meets the statutory criteria for conditional release by petition for writ of mandamus. Wesley v. State, 848 So. 2d 1231 (Fla. 2d DCA 2003); cf. Bush v. State, 945 So. 2d 1207 (Fla. 2006). Although Logan should have filed a petition for writ of mandamus, the trial court should have treated his petition as seeking the proper remedy, rather than summarily denying it for applying the wrong label. Ashley v. Moore, 732 So. 2d 498 (Fla. 1st DCA 1999); Fla. R. App. P. 9.040(c). n2

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Additionally, we note that the petition should have been transferred to the circuit court sitting in Leon County, in the second judicial circuit, where venue properly lies for actions challenging a determination by the Parole Commission. Cf.  [*4]  Bush, 945 So. 2d at 1211-1214. However, the Commission apparently waived its home venue privilege below.
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Regardless, we conclude from our review of Logan’s petition that he is not entitled to relief. Logan appears to qualify for conditional release treatment, and nowhere alleges that he does not meet the statutory criteria for conditional release. Rather, Logan seems to be laboring under the misimpression that he cannot be placed on conditional release because the trial court did not order it at the time of his sentencing. Unlike probation, conditional release is not part of a criminal sentence. Mayes, 827 So. 2d at 971. It, therefore, cannot be mandated or waived by the sentencing judge. Id. Rather, “[a]n inmate’s eligibility for conditional release is established by statute.” Id. Because Logan fails to allege that he does not meet the statutory criteria for conditional release, he fails to state any legitimate basis to challenge the Parole Commission’s determination that he meets the criteria. As such, Logan’s petition should have been denied on the merits.

AFFIRMED.

SAWAYA and MONACO, JJ., concur.

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DAVID R. REIDY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1250

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

August 24, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Brevard County, Mark A. Cianca, Senior Judge.

DISPOSITION:  

AFFIRMED.

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

Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, J. PLEUS and LAWSON, JJ., concur.

OPINION BY:   GRIFFIN

OPINION  

GRIFFIN, J.

Appellant, David Reidy ["Reidy"], appeals his criminal convictions and sentences rendered after a jury found him guilty of burglary of an occupied structure and possession of cannabis. One of the several issues he raises on appeal merits discussion.

The incident that led to the criminal charges occurred at Aquatech Marine Sales and Service, a business located in Palm Bay. Police received information from an undisclosed source that a burglary would occur at the marine store. With the owner’s permission, officers set up a “stake out” on the premises, with some officers located inside and some outside adjacent to the building. Shortly after midnight, Reidy entered the building through an unlocked door and walked toward the sales counter where the cash register was located. Almost immediately, Reidy was apprehended  [*2]  and charged.

Reidy was tried and found guilty. At his sentencing hearing, Reidy’s counsel unsuccessfully argued that Reidy should not have been convicted of burglary of an occupied structure because the only occupants were law enforcement. The trial court disagreed and sentenced him as a prison releasee reoffender to fifteen years in prison. On appeal, Reidy contends he should not have been convicted of burglary of an “occupied structure.” n1

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§ 810.02(3)(c), Fla. Stat. (2004).
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The Legislature has the authority to define crimes and to determine the range of punishment applicable to such crimes. See Sims v. State, 754 So. 2d 657 (Fla. 2000). Section 810.02(3), Florida Statutes (2004), provides:

(3) Burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

. . . .

(c) Structure, and there is another person in the structure at the time the offender enters or remains; or

(d) Conveyance, and there is another person in the conveyance at the  [*3]  time the offender enters or remains.(Emphasis added). The language of the statute could not be more clear. It is undisputed that there was “another person” in the structure at the time Reidy entered; therefore, he was properly convicted of the second-degree felony. n2

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Perhaps a more interesting question, though one not raised here, is whether the predicate for sentencing under the prison releasee statute was met on these facts. As was noted by the Supreme Court in State v. Huggins, 802 So. 2d 276, 278 (Fla. 2001), there is a certain lack of symmetry between the description of the degree variant offenses under the burglary statute and those listed under the “prisoner releasee reoffender” ["PRR"] statute, section 775.082(9), Florida Statutes (2004). For purposes of the PRR statute, the qualifying offense is described as “burglary of a dwelling or burglary of an occupied structure.” § 775.082(9)(a)(1.)(q), Fla. Stat. (2004). The words “occupy” “occupant” and “occupied” may connote more than a transitory relationship between the structure and the person located within the structure. See § 810.02, Fla. Stat. (2004). See also BLACK’S LAW DICTIONARY 1078 (6th ed. 1990).
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AFFIRMED.

PLEUS and LAWSON,  [*4]  JJ., concur.

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KEITH ROBERT PAGLIARO, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-685

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

August 24, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

3.850 Appeal from the Circuit Court for Citrus County, Richard Howard, Judge.

COUNSEL:   Keith R. Pagliaro, Sneads, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   EVANDER, J. GRIFFIN and MONACO, JJ., concur.

OPINION BY:   EVANDER

OPINION  

EVANDER, J.

Pagliaro appeals the summary denial of his Rule 3.850 motion for post-conviction relief. n1 We find his motion raised a facially sufficient claim that was not conclusively refuted by the record.

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Fla. R. Crim. P. 3.850.
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Pagliaro originally pled guilty to robbery, possession of heroin, and possession of cannabis. He was sentenced to 39 months incarceration, followed by five years of probation. In April 2005, Pagliaro was released on probation. He was arrested for violating his probation on December 5, 2005, for failure to pay costs of supervision. He was released on his own recognizance on December 19, 2005. Subsequently, he tested positive for cannabis in his urine sample. Pagliaro admitted to violating his probation at a hearing held in April, 2006. The trial court sentenced Pagliaro to nine years incarceration. His subsequent motion to withdraw plea was denied.

Pagliaro raised four claims in  [*2]  his Rule 3.850 motion. We affirm, without discussion, the summary denial of his first, third and fourth claims. In his second claim, Pagliaro alleged that trial counsel was ineffective in failing to investigate his mental health status. Pagliaro claimed he had a long history of mental illness. He had been diagnosed as bi-polar and had been involuntarily committed on, at least, two occasions. The most recent occasion was in November, 2005. In December, 2005, he alleged the trial court released him on his own recognizance so that he would be able to attend his social security disability hearing scheduled for December 22, 2005.

The Social Security Administration’s hearing officer’s report was attached to Pagliaro’s Rule 3.850 motion. The hearing officer apparently found Pagliaro had the following impairments, which were considered to be “severe” under Social Security Regulations: “degenerative disc disease of the lumbar spine, cervical spondylosis, bi-polar disorder, personality disorder and substance abuse disorder, in remission.” Pagliaro alleged that he was taking various psychotropic medications as well as pain-management medications for his herniated disc. Significantly, he asserted  [*3]  that as a result of the combined effects of these medications, he was unable to understand the nature and consequences of his VOP plea hearing.

The trial court found this claim was conclusively refuted by Pagliaro’s answers to two questions during his plea colloquy. The trial judge’s questions and Pagliaro’s answers were as follows:

Q. Are you presently under the influence of any alcohol or intoxicant that would negatively effect your good judgment here today?

A. No, Sir.

Q. Have you ever been found to be insane, incompetent, mentally challenged and not restored to your capacity.

A. No.

We find this exchange was insufficient to conclusively refute Pagliaro’s claim that he did not understand the nature and consequences of the plea hearing because of the combined effects of his psychotropic medications and his pain medication. In the course of the plea colloquy, Pagliaro was never asked whether he was under the influence of any medications. In the substantially similar case of Randall v. State, 885 So. 2d 932 (Fla. 5th DCA 2004), we held that an evidentiary hearing was required because the defendant’s mental status, at the time of the plea hearing, was not conclusively refuted by the record.  [*4]  See also Rivera v. State, 746 So. 2d 542 (Fla. 2d DCA 1999). Accordingly, Pagliaro is entitled to an evidentiary hearing on this claim.

AFFIRMED, in part; REVERSED, in part; REMANDED.

GRIFFIN and MONACO, JJ., concur.

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TERESA LYNN WILLS, Petitioner, v. STATE OF FLORIDA, Respondent.

Case No. 5D07-1088

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

August 24, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Petition for Certiorari Review of Order from the Circuit Court for Lake County, Mark J. Hill, Judge.

COUNSEL:   Teresa L. Wills, Ocala, Pro se.

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

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

OPINION BY:   MONACO

OPINION  

MONACO, J.

The petitioner, Teresa Lynn Wills, seeks certiorari review of an order of the trial court denying her motion pursuant to rule 3.800(c), Florida Rules of Criminal Procedure, on jurisdictional grounds. Essentially, Ms. Wills timely filed her rule 3.800(c) motion, but the sixty-day time limit contained within the rule elapsed before the trial court could address its merits. The State properly concedes that the trial court should have sua sponte enlarged the time within which to have a hearing on the motion in accordance with Abreu v. State, 660 So. 2d 703 (Fla. 1995), and Timmer v. State, 840 So. 2d 1160 (Fla. 5th DCA 2003). Accordingly, we grant certiorari, quash the trial court’s order denying relief, and remand this matter for the trial court to consider the motion on the merits.

WRIT GRANTED.

SAWAYA and ORFINGER, JJ., concur.

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PERCY A. TERCERO, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-1139

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

August 22, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Larry Schack, Judge; L.T. Case No. 05-230 CFA.

DISPOSITION:  

Affirmed.

COUNSEL:   Charles Wender, Boca Raton, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   TAYLOR, J. STONE, J., and COLBATH, JEFFREY J., Associate Judge, concur.

OPINION BY:   TAYLOR

OPINION  

TAYLOR, J.

This appeal arises from the trial court’s denial of appellant’s motion to suppress contraband discovered in appellant’s car during a search incident to his arrest on an outstanding warrant. We affirm.

On or about February 9, 2005, appellant was stopped and arrested on an arrest warrant for charges of possession and sale of marijuana, which stemmed from his sale of marijuana to an undercover police detective on October 27, 2004 (Case No. 05-130-CF). Incident to the arrest on the warrant, the police searched appellant’s vehicle and found drugs and drug paraphernalia. This discovery led to additional charges against appellant for possession of hydrocodone, possession of twenty grams or less of cannabis, and use or possession of drug paraphernalia ( Case No. 05-230-CF).

Appellant moved to dismiss the undercover  [*2]  drug sale charges filed in Case No. 05-130, asserting objective entrapment. He alleged that the confidential informant (CI), to whom he sold the marijuana, was his supervisor at work, and that the CI pressured him and threatened to fire him if he did not sell him marijuana. He further alleged that the CI was unsupervised and made all the arrangements for the drug transaction. The trial court granted the motion to dismiss, finding that the police conduct in the undercover investigation was “outrageous” and a violation of appellant’s due process rights. n1

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The state did not appeal the order of dismissal.
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In Case No. 05-0230, appellant filed a motion to suppress the evidence seized from his automobile on February 9, 2005. He argued that the evidence should be suppressed under the “fruit of the poisonous tree” doctrine because it was seized incident to his arrest on a warrant that was tainted by police misconduct. The trial court denied the motion to suppress. The court ruled that the evidence in that case was seized during execution of a valid arrest warrant, fully supported by probable cause, and that any search incident to that arrest was likewise valid. Appellant entered a no contest  [*3]  plea to the charges in Case No. 05-230 and reserved the right to appeal the denial of his motion to suppress.

Although we review the trial court’s factual findings in a ruling on a motion to suppress for competent substantial evidence, we review its legal conclusions de novo. See Martin v. State, 921 So. 2d 697, 698 (Fla. 4th DCA), review denied, 935 So. 2d 2 (Fla. 2006 ); Underwood v. State, 801 So. 2d 200, 202 (Fla. 4th DCA 2001). n2 Appellant does not dispute the facts leading to discovery of the contraband in this case. Rather, he argues that, as a matter of law, the drugs seized from him during execution of an arrest warrant secured by misconduct (objective entrapment) should be suppressed under the “fruit of the poisonous tree” doctrine. Our review in this case is thus de novo.

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The state argues that because appellant has failed to include a transcript of the hearing on appellant’s motion to suppress in the record on appeal, we are precluded from reviewing this issue on appeal. However, we agree with appellant that a transcript is not required for our review because the trial court did not hold an evidentiary hearing on the motion to suppress, but denied it solely on appellant’s  [*4]  legal argument that the trial court’s finding of objective entrapment precluded admission of the drugs seized during execution of the arrest warrant for the undercover sale.
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This case raises the question whether the “fruit of the poisonous tree” doctrine requires suppression of evidence found in a search incident to an arrest, where the arrest arose from a prior violation of the defendant’s constitutional due process rights. More specifically, we examine the significance of a trial court’s finding of prior police misconduct (objective entrapment) as it bears upon the question of whether an arrest warrant secured by that misconduct may serve as a lawful basis for a search incident to an arrest on that warrant.

After an evidentiary hearing on appellant’s motion to dismiss charges arising from appellant’s sale of marijuana to an undercover detective, the trial judge found that the manner in which the police conducted the operation was “outrageous.” The court dismissed the charges, concluding that the police conduct constituted objective entrapment and a violation of appellant’s due process rights. Appellant argues that the subsequent arrest warrant, and any search incident to an arrest  [*5]  on the warrant, was tainted as the “fruit” of the entrapment.

The “fruit of the poisonous tree” doctrine is a judicially developed “‘exclusionary rule,’ which forbids the use of evidence in court if it is the product or fruit of a search or seizure or interrogation carried out in violation of constitutional rights.” Craig v. State, 510 So. 2d 857, 862 (Fla. 1987) (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), and United States v. Cruz, 581 F.2d 535 (5th Cir. 1978)). However, not “all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Wong Sun, 371 U.S. at 487-88. Rather, the issue to be decided is “‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Id. at 488 (quoting Maguire, Evidence of Guilt, 221 (1959)). In deciding this issue, courts must consider three factors: “‘(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3)  [*6]  the purpose and flagrancy of the official misconduct.’” State v. Frierson, 926 So. 2d 1139, 1143 (Fla.) (quoting United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997) (relying on the factors explicitly set forth in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)), cert. denied, 127 S. Ct. 734, 166 L. Ed. 2d 570 (2006).

In Frierson, a police officer made an invalid traffic stop of the defendant. During the officer’s identification check, he discovered that there was an outstanding warrant for the defendant. The officer arrested the defendant on the warrant. A search incident to the arrest revealed a firearm, and the defendant was charged with being a convicted felon in possession of a firearm. Applying the factors set forth in Green, the Frierson court held that even though the initial stop of the defendant was invalid, the firearm did not have to be suppressed. See 926 So. 2d at 1144. The court concluded that the officer’s discovery of the outstanding warrant was an intervening circumstance which dissipated the taint of the illegal traffic stop and that the search was incident to the outstanding warrant and not incident to the illegal stop. The court emphasized that the outstanding arrest warrant was  [*7]  a judicial order directing the arrest of the defendant whenever he was located. Id.

More recently, the supreme court applied the three-part test in Golphin v. State, 945 So. 2d 1174 (Fla. 2006), petition for cert. filed, No. 06-1251, 75 USLW 3512 (Mar. 9, 2007). There, the court determined that drug evidence discovered during the search of the defendant incident to an arrest on an outstanding warrant did not have to be suppressed, regardless of whether the defendant’s encounter with police during the traffic stop constituted an unlawful seizure. n3 Noting that the officer had an indisputable obligation to enforce the arrest warrant, the court determined that “the search was incident to the arrest, not to the preceding encounter between Golphin and [the officer].” Id. at 1192. The court stated:

We further note that the United States Supreme Court has held that searches incident to a lawful arrest are constitutionally permissible and reasonable under the Fourth Amendment. See United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (“It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person  [*8]  is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”).Id.

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In fact, the supreme court did not find that Golphin was unlawfully seized. It found that, based on the totality of the circumstances, Golphin’s encounter with the police was consensual, and that the consensual nature of the encounter did not change into a seizure simply because the police retained Golphin’s identification during a computer check for warrants. See 945 So. 2d at 1193.
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As in Frierson and Golphin, the evidence in this case was seized during a search incident to appellant’s arrest on an outstanding warrant. Notably, no illegal stop or detention of appellant preceded his arrest on the warrant. The encounter began with the police performing their “indisputable obligation” to arrest appellant on the warrant. Golphin, 945 So. 2d at 1192. Thus, the search was incident to the arrest, not to any preceding encounters between appellant and the police.

Appellant argues, however, that the initial police misconduct, i.e. the entrapment activity during the undercover drug sale, rendered the arrest warrant invalid. He urges us to apply the three-pronged  [*9]  Brown v. Illinois analysis to these circumstances and find that the search incident to the outstanding “entrapment warrant” was not sufficiently attenuated from the initial police misconduct so as to dissipate the taint. Appellant argues that the drug evidence should be suppressed because there was no break in the causal connection between the unlawful police activity and the search incident to arrest. To illustrate this, he diagrammed the sequence of events, as follows:

Undercover sale = arrest warrant = execution of arrest warrant = search incident to execution of warrant = discovery of new drugs.

The three-part analysis that Frierson requires is done to determine “whether . . . evidence obtained after an illegal arrest or search should be excluded” under Wong Sun‘s “fruit of the poisonous tree” doctrine. Frierson, 926 So. 2d at 1143 (emphasis added). As appellant’s diagram shows, the drug evidence seized from appellant was not obtained after an illegal arrest or search. It was seized during a search incident to appellant’s arrest on an outstanding warrant. The arrest warrant was supported by probable cause and was not invalidated by the trial court’s subsequent finding of entrapment.  [*10]  This finding did not affect the validity of the arrest warrant that led to discovery of the drugs. Appellant’s entrapment defense, though successful, did not strip the initial arrest of probable cause. A claim of entrapment is an affirmative defense, which does not negate the commission of the crime charged or the existence of any element thereof, but seeks an avoidance of the charges. Herrera v. State, 594 So. 2d 275, 277 (Fla. 1992).

We have been unable to find a case in Florida wherein a defendant attempted to apply the exclusionary rule to evidence that was obtained during a search incident to an arrest on charges that were later dismissed on grounds of entrapment. However, we find the analysis of several other courts on related issues instructive.

In Labensky v. County of Nassau, 6 F. Supp. 2d 161 (E.D.N.Y. 1998), the plaintiff brought a § 1983 action against the police department, undercover informant, and detectives after his criminal charges were dismissed based on his entrapment defense. The defendant argued that no probable cause existed for his arrest because of the police conduct creating entrapment. The Labensky court disagreed, noting first that entrapment is an affirmative  [*11]  defense. The court further explained:

Thus, the law permits the police to arrest a person who has been induced to commit a crime even if they cannot, at the time of arrest, prove predisposition. Indeed, the police may then conduct further investigation into the defendant’s background-including steps that cannot be taken during the covert phase of investigation-in a search for evidence that might rebut an affirmative defense of entrapment. If a successful entrapment defense strips the initial arrest of probable cause, as Labensky argues, police officers will be deterred from making such arrests and pursuing such investigations. The rule Labensky seeks would, in effect, tell the officers that a defense that might later be raised could retroactively render the arrest itself illegal, subjecting the officer to civil liability.Id. at 177.

The District Court for the Eastern District of New York made a similar finding in Torres v. Marquardt, No. 93-CV-2993 JG, 1997 WL 1068680 (E.D.N.Y. Apr. 3, 1997). There, in addressing the same argument, the court held that the defense of entrapment “does not ‘negate the commission of the crime’” or any of its elements. Id. at *4 (quoting People v. Millard, 90 A.D.2d 590, 456 N.Y.S.2d 201, 203 (N.Y. App. Div. 1982)).  [*12]  Rather, the defense is a “‘confession and avoidance.’” Id. (quoting People v. Morris, 68 A.D.2d 893, 413 N.Y.S.2d 757, 758 (N.Y. App. Div. 1979)). The court concluded, “[i]ndeed, the validity of an arrest does not turn upon the ultimate finding of guilt or innocence, but whether probable cause existed at the time of arrest. Thus, the probable cause arising from Torres’ actions remains unaffected by the subsequent finding of entrapment.” Id. (citation omitted).

Other federal courts have held that “[e]ntrapment is not part of our Fourth Amendment probable-cause-to-arrest analysis.” Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir. 1998). Whereas a probable cause analysis “requires one to examine the circumstances from the view of an objectively reasonable police officer[,] [e]ntrapment . . . is an affirmative defense of a criminal defendant to otherwise culpable conduct.” Id. To negate probable cause, “the plaintiff must provide evidence that the officer ‘knowingly or intentionally or with a reckless disregard for the truth, made false statements to the judicial officer, and that the false statements were necessary to the judicial officers’ determinations that probable cause existed for the arrests.’”  [*13]  Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 866 (7th Cir. 2004) (quoting Molina ex rel. Molina v. Cooper, 325 F.3d 963, 968 (7th Cir. 2003)).

Entrapment occurs when “‘the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.’” State v. Glosson, 462 So. 2d 1082, 1084 (Fla. 1985) (quoting United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973)). A trial court may properly dismiss criminal charges for such constitutional due process violations. See State v. Williams, 623 So. 2d 462, 464 (Fla. 1993) (approving reversal of defendant’s conviction for purchasing crack cocaine that was illegally manufactured by law enforcement officials for reverse-sting operations). Indeed, the trial court below dismissed the undercover drug sale charges against appellant as an appropriate remedy after appellant established objective entrapment in that case.

However, the trial court properly declined to exclude the evidence in appellant’s drug possession case. Courts exclude evidence under the “fruit of the poisonous tree doctrine” when they determine that the evidence is the “product or  [*14]  fruit of a search or seizure or interrogation carried out in violation of constitutional rights.” Craig, 510 So. 2d at 862. The exclusionary rule serves primarily to redress violations of Fourth Amendment rights. Simply put, we do not believe that the “fruits” doctrine applies to vindicate claims of entrapment.

Even if we were to apply the Brown v. Illinois factors to the factual scenario in this case, we would nonetheless conclude that the drug evidence did not have to be suppressed as the product or fruit of a search or arrest carried out in violation of constitutional rights. Execution of the arrest warrant was an intervening circumstance that was sufficiently distinguishable from the prior police misconduct so as to dissipate the taint of that “primary illegality.” Furthermore, there was no close temporal proximity between the law enforcement entrapment conduct and the discovery of the drugs during the search incident to the arrest on the warrant.

For the reasons stated above, we affirm the order denying appellant’s motion to suppress.

Affirmed.

STONE, J., and COLBATH, JEFFREY J., Associate Judge, concur.

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