Florida Criminal Law Opinions

JOHN TODD PALLIN, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D05-4774

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

September 28, 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. John P. Kuder, Judge.

COUNSEL:   Ronald W. Johnson of Kinsey, Troxel, Johnson, Walborsky & Bradley, P.A., Pensacola, for Appellant.

Bill McCollum, Attorney General, Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   KAHN, DAVIS, and THOMAS, JJ., CONCUR.

OPINION  

PER CURIAM.

Appellant appeals his conviction for conspiracy to traffic in cocaine. The charged offense was based on Appellant’s possession or purchases of cocaine from two cocaine suppliers over an 11-month period. Because each transaction involved less than 28grams of cocaine, and no evidence established a specific agreement to purchase more than 28 grams of cocaine, we reverse his conviction for conspiracy to traffic in cocaine. See Switzer v. State, 940 So. 2d 1248 (Fla. 1st DCA 2006). However, because we find that the State proved beyond a reasonable doubt that Appellant conspired to purchase or possess cocaine with the intent to purchase, in violation of sections 777.04(3) and 893.13(2)(a)(1), Florida Statutes (2003), a lesser-included charge of conspiracy to traffic, we direct the trial court to enter a conviction on the lesser-included charge. See §924.34, Fla. Stat. (2003)  [*2]  (permitting an appellate court to direct the trial court to enter a judgment on a lesser-included charge when it determines the evidence is insufficient to support a conviction).

Florida law defines the crime of conspiracy as occurring where a person “agrees, conspires, combines, or confederates with another person or persons to commit any offense[.]” §777.04(3), Fla. Stat. (2003). “The crime of conspiracy involves an express or implied agreement between two or more people to commit a criminal offense.” State v. Russell, 611 So. 2d 1265, 1267 (Fla. 2d DCA 1992).

Reviewing the evidence here in a light most favorable to the State, including all reasonable inferences resulting from the evidence, the facts presented here demonstrate that Appellant participated in more than a simple “buy-sell” or “spot sale” agreement with his suppliers. See Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981) (explaining that an appellate court must resolve all conflicts in the evidence and all reasonable inferences therefrom in a light most favorable to the verdict). Appellant knew his suppliers were engaged in an ongoing agreement between themselves to purchase cocaine and then to supply Appellant and others  [*3]  with the cocaine. This relationship necessarily required Appellant’s suppliers to purchase and possess cocaine so that he could then purchase or possess a smaller portion of the cocaine. Further, Appellant occasionally incurred debt to his suppliers when making his purchases and also involved his girlfriend in the crime.

Because this evidence demonstrates that Appellant and his suppliers shared a common objective to purchase or possess cocaine with the intent to purchase, it is sufficient to sustain a conviction for conspiracy to purchase or possess cocaine with intent to purchase. See, e.g., Pino v. State, 573 So. 2d 151, 152 (Fla. 3d DCA 1991) (“Where … the defendants are involved in a series of meetings, arrangements, and negotiations to sell or buy illegal drugs from an undercover police officer which eventually leads to such a sale or purchase, Florida courts have generally sustained convictions for conspiracy to commit the offense of drug trafficking based on this conduct.”).

This is not a case where Appellant was marginally involved with other criminal actors or simply purchased cocaine from a supplier. Cf. Ashenoff v. State, 391 So.2d 289, 290-91 (Fla. 3d DCA 1980) (reversing  [*4]  appellants’ conspiracy convictions where the appellants were present at the scene of the offense but their conversations related only to offenses for which they were acquitted). Neither is this a case where Appellant simply aided and abetted another principal in committing the crime of drug possession. Cf. Ramirez v. State, 371 So. 2d 1063, 1065 (Fla. 3d DCA 1979) (reversing appellants’ convictions for conspiracy to possess marijuana where no evidence demonstrated an agreement to possess the marijuana). Here, Appellant repeatedly possessed cocaine; his suppliers were simply first to possess it. Appellant could not possess the cocaine from his suppliers and co-conspirators unless they first possessed it; therefore, the evidence supports a conviction for conspiracy to purchase or possess cocaine with intent to purchase. Cf. Williams v. State, 908 So.2d 1166, 1167 (Fla. 1st DCA 2005) (reversing conviction for possession with intent to sell based on aiding or abetting, where “evidence presented indicated that appellant was either the intended seller or intended purchaser, not an aid to either.”).

We reject Appellant’s contention that federal decisions holding that no conspiracy exists when  [*5]  the participants are on different sides of the transaction apply to our analysis. While federal law specifically requires that the participants commit an additional act beyond mere possession of contraband in order to be convicted of conspiracy to traffic, Florida law does not require an additional act. See 21U.S.C. §841(a)(1) (2006); §893.135(1)(b)(1), Fla. Stat. (2003). Therefore, we find the better view is expressed in United States v. Miller, in which the Eighth Circuit held that “‘evidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of conspiracy to distribute.’” 91 F.3d 1160, 1162 (8th Cir. 1996) (quoting United States v. Eneff, 79 F.3d 104, 105 (8th Cir. 1996)). Although the court in Miller determined the same principle does not apply to repeated transactions of smaller amounts of drugs, we conclude that its rationale is persuasive because, under Florida law, a conviction for trafficking may be obtained based on mere possession. Thus, the evidence presented here of multiple sales of a resale quantity of cocaine permits a conviction on the lesser-included offense of conspiracy to purchase or possess cocaine with the intent  [*6]  to purchase.

Further, we find the concerns expressed in United States v. Moran, 984 F.2d 1299 (1st Cir. 1993), that the special dangers of conspiracy are “not present if one merely sells the same cocaine to another without prearrangement and with no . . . interest in its intended use” unpersuasive, as the dangers of a conspiracy, such as the commission of other crimes in furtherance of the conspiracy, are present here.

Accordingly, we remand with directions to reverse Appellant’s conviction on CountII for conspiracy to traffic in cocaine and enter a conviction for conspiracy to purchase or possess cocaine with the intent to purchase, in violation of sections 777.04(3) and 893.13(2)(a)(1), Florida Statutes (2003). We affirm all other issues raised by Appellant.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.

KAHN, DAVIS, and THOMAS, JJ., CONCUR.

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HENRY BROWN, JR., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D05-2275

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

September 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Flagler County, Kim C. Hammond, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

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

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

OPINION BY:   GRIFFIN

OPINION  

GRIFFIN, J.

Appellant, Henry Brown, Jr. (“Brown”), appeals his sentence for aggravated assault and aggravated battery. We reverse.

Brown was charged by information with one count of attempted second-degree murder (Count I) and one count of aggravated battery with a deadly weapon causing great bodily harm (Count II). Brown was convicted by a jury of the lesser included offense of aggravated assault in Count I and aggravated battery as charged in Count II. n1

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Aggravated assault is a third-degree felony punishable by a maximum of five years’ incarceration and aggravated battery is a second-degree felony punishable by a maximum of fifteen years’ incarceration.
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A sentencing hearing was conducted on June 24, 2005. Brown’s scoresheet reflected a sentencing range between 95.25 months and twenty years of incarceration. During the hearing,  [*2]  the State asked for the maximum available sentence of twenty years based on Brown’s violent prior criminal record. n2 In response to a question from the Court, the prosecutor replied:

The most I could do on count one, Your Honor, would be the 15 years because it’s a second-degree felony.Brown then argued for a downward departure or a term of supervision. Thereafter, consistent with the prosecutor’s prior statement as to the maximum available sentence for Count I, the trial court orally pronounced the following sentence:

It’s the sentence of this court that on count one he be sentenced to 14 years in the Department of Corrections. On count two be [sic] sentenced to five years in the Department of Corrections. That will be concurrent rather than consecutive, and he will be given credit for time served.The problem, however, was that it was Count II that carried a fifteen year statutory maximum. Count I was subject to a five year maximum sentence. The written sentence initially comported with the oral pronouncement; however, apparently on the same day, the sentencing judge changed the sentence to reflect five years on Count I and fourteen years on Count II.

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Brown’s prior record includes,  [*3]  among others, an escape, an aggravated assault with a deadly weapon, two domestic violence batteries, and two drug convictions.
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Brown then filed a rule 3.800(b) motion n3 to correct an illegal sentence, arguing that the oral pronouncement of the fourteen-year sentence for Count I was illegal. The State countered that, under this Court’s opinion in Sands v. State, 899 So. 2d 1208 (Fla. 5th DCA 2005), the sentence could lawfully be “restructured” to reflect a sentence of five years on Count I and fourteen years on Count II. The State also filed its own rule 3.800(b) motion to correct sentence. The trial judge, Kim C. Hammond, entered an order granting the State’s motion, noting in the order that the sentencing judge, Senior Judge Hitt, had corrected the written sentence on the day of sentencing. The order states:

At sentencing … the Court initially indicated 14 years on the aggravated assault and 5 years on aggravated battery on the written judgment and sentence, however that was changed to reflect the Court’s oral pronouncement of five years on the aggravated assault and 14 years on the aggravated battery. n4 Judge Hitt initialed these corrections on the written judgment and sentence. …  [*4]  Therefore, it was the intent of the Court to sentence [Brown] to 14 years on the aggravated battery and 5 years for aggravated assault. The State’s Motion being timely filed pursuant to Florida Rule of Criminal Procedure 3.800(b) and specifically alleging a correctable scrivener’s error it is hereby

ORDERED AND ADJUDGED the State’s Motion to Correct Sentence is Granted, nunc pro tunc, sentencing [Brown] to 5 years on count one, aggravated assault and 14 years on count two, aggravated battery.(emphasis added) (footnote supplied).

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Fla. R. Crim. P. 3.800(b).4

The order rendered by Judge Hammond misapprehends the facts. The transcript clearly shows that the orally pronounced sentence was fourteen years for Count I and five years for Count II. This does not appear to be a scrivener’s error as the order indicates.
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On appeal, Brown argues that his fourteen-year sentence for Count I is illegal because it exceeds the statutory maximum, which in this case is 95.25 months, the “lowest permissible” sentence under the scoresheet. n5 See Butler v. State, 838 So. 2d 554, 556 (Fla. 2003). He also claims the court was not permitted to increase his sentence under Count II because the sentence imposed was  [*5]  legal and he already had begun to serve the sentence. The State says that under Sands it was permissible for the lower court to restructure Brown’s sentence so long as his aggregate sentence did not exceed the maximum lawful sentence and is not vindictive.

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§ 921.0024(2), Fla. Stat. (2005).
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It is well established that a court’s oral pronouncement of a sentence controls over the written sentencing document. See Williams v. State, 957 So. 2d 600, 603 (Fla. 2007); Ashley v. State, 850 So. 2d 1265, 1268 (Fla. 2003); Justice v. State, 674 So. 2d 123, 126 (Fla. 1996). When the written sentence results in a sentence that is more severe than the sentence announced in court, the sentence is illegal and must be corrected. The issue in this case is whether it was permissible for the court to amend Brown’s written sentence, contrary to the oral pronouncement, by switching the sentences for Count I and Count II.

We begin by concluding that our Sands decision has no application to this case. The Sands court simply followed prior precedent that permits a court to restructure a sentence in a manner that effectuates the governing plea agreement. In reaching its decision, the Sands court stated:

We acknowledge  [*6]  that the outcome here may not be to [appellant's] liking. After all, it is quite obvious that the essence of his complaint is not that he has been deprived of the benefit of his bargain; rather, it is that he did not receive from the trial court a less severe sentence than he bargained for. We believe, however, that a plea agreement should be adhered to by both parties if it is legally permissible to do so. The trial court attempted to provide both [appellant] and the State what they were entitled to under their plea agreement, but it made a mistake in the calculation of the total probationary sentence. We will correct that error by requiring the trial court to reduce [appellant's] aggregate probationary sentence by 4.8 months.899 So. 2d at 1211-12.

Shepard v. State, 940 So. 2d 545 (Fla. 5th DCA 2006), is more to the point. Here, the issue on appeal was whether the trial court violated appellant’s double jeopardy rights by recalling the parties after the sentencing hearing had concluded and then changing its oral pronouncement of concurrent to consecutive on one of appellant’s sentences. In Shepard, the lower court orally pronounced that the appellant was sentenced to thirty years on  [*7]  Count I and five years on Count II, with these sentences to run consecutively. As to Count III, the court sentenced him to thirty years and stated the sentence would be concurrent with the sentences imposed in Counts I and II. The court concluded the hearing after he advised appellant of his right to appeal and confirmed there were no other matters that needed to be addressed. Approximately fifteen minutes later, the trial judge recalled the parties, acknowledged a mistake and changed the sentence from concurrent to consecutive. The Shepard court noted that the trial court’s oral pronouncement was unambiguous and said that although the lower court was permitted to correct its misstatement prior to the conclusion of the sentencing hearing, a trial court’s pronouncement becomes final when the sentencing hearing ends. Id. at 548.

The Supreme Court’s decision in Ashley also applies. In Ashley, the defendant was charged with possession of a firearm by a convicted felon. Prior to trial, the state filed a notice of intent to classify the defendant as a habitual violent felony offender (HVFO) based on a prior robbery conviction. At trial, the jury found him guilty as charged.

At the sentencing  [*8]  hearing, the prosecutor requested that the defendant be sentenced as an HVFO. Defense counsel requested the trial court to exercise its discretion not to sentence him as an HVFO. On the following day, the trial court pronounced sentence. The trial court orally sentenced the defendant as a habitual felony offender (HFO) and sentenced him to twenty-five years in prison.

The written judgment and sentence indicated that the defendant had been sentenced as an HVFO to twenty-five years in prison with no minimum mandatory term noted on the written form. Three days later, the defendant was brought back to court and orally sentenced to twenty-five years as an HVFO. For the first time, the court imposed a ten-year minimum mandatory term. The new written judgment and sentence was consistent with the court’s second oral pronouncement. The supreme court held the resentencing of the defendant violated his constitutional right against double jeopardy. Ashley, 850 So. 2d at 1267.

In the present case, it appears the sentencing judge may have been inadvertently misled into getting the sentences for the two counts backwards. Nonetheless, such an error cannot be changed once the sentencing hearing has concluded,  [*9]  at least where the originally pronounced sentence was neither ambiguous nor illegal. The court was obliged to correct the illegal sentence in Count I but was not permitted to change the legal sentence on Count II after Brown began to serve his sentence. See Wilhelm v. State, 543 So. 2d 434, 435 (Fla. 2d DCA 1989). We see no impediment, however, upon resentencing, in having Count I and Count II run consecutively, rather than concurrently, if that more accurately reflects the sentencing intent.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.

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HOWELL M. RAMSEY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-411

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 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; Robert A. Foster, Jr., Judge.

JUDGES:   VILLANTI, Judge. WHATLEY and DAVIS, JJ., Concur.

OPINION BY:   VILLANTI

OPINION  

VILLANTI, Judge.

Howell Ramsey’s conviction and life sentence for first-degree murder became final when this court issued the mandate on his appeal in April 1997. Under usual circumstances, Mr. Ramsey would have been required to file any postconviction motions within two years of that date. Thus, when he filed his motion pursuant to Florida Rule of Criminal Procedure 3.850 in June 2005, the postconviction court dismissed it as untimely. The postconviction court also denied Mr. Ramsey’s subsequent motion for reconsideration on the sole ground that “[e]xtradition is not one of the listed exceptions” to the two-year time limit as enunciated in rule 3.850(b).

This is not the usual case, however, and the postconviction court erred when it dismissed Mr. Ramsey’s motion without considering the allegation that he had been imprisoned in New York State from the time that his judgment and sentence became final until June 2003, during which time he was unrepresented by counsel and had no access to Florida law materials.  [*2]  In Demps v. State, 696 So. 2d 1296, 1298-99 (Fla. 3d DCA 1997), the Third District held that a defendant incarcerated in an out-of-state prison with no access to Florida legal materials was essentially deprived of access to the Florida courts as provided in article I, section 21, of the Florida Constitution. The court held that

it would be a violation of Demps’ right of access to court under the Florida and federal constitutions to hold that his motion for postconviction relief is time-barred given that he did not have access to Florida legal materials, or a reasonable alternative, for the entire period within which he had to file the motion.Id. at 1299; see also John v. State, 826 So. 2d 496 (Fla. 3d DCA 2002). Other district courts of appeal have followed the sound reasoning of the Demps case in holding that the time for filing a rule 3.850 motion can be tolled. See Lopez-Merced v. State, 949 So. 2d 362 (Fla. 5th DCA 2007); Kirk v. State, 707 So. 2d 948 (Fla. 1st DCA 1998).

The rationale for permitting the congruence of certain limited, rarely occurring circumstances to toll the time for a prisoner to file a rule 3.850 motion derives from the fundamental right of access to the courts.  [*3]  As the Florida Supreme Court noted when it fashioned the “mailbox rule” in Haag v. State, 591 So. 2d 614, 617 (Fla. 1992):

Under the Florida Constitution, all persons have a right to equal protection of the laws, particularly in matters affecting life and liberty. Art. I, § 2, Fla. Const. Obviously, this includes a right of equal access to the courts, which serve as the final arbiter of whether life or liberty may be forfeited lawfully.It stands to reason, as the court observed in Demps, that an uncounseled prisoner held in an out-of-state jurisdiction who is not represented by counsel and who does not have access to Florida statutes, rules, and forms has been deprived of meaningful access to the Florida courts. 696 So. 2d at 1298-99.

It appears from the numerous documents that Mr. Ramsey attached to his sworn motion that he was continuously incarcerated in New York State from a time before the mandate on his direct appeal issued until June 26, 2003, when he was returned to Hillsborough County for transfer to a Florida state prison. Those documents also reflect that Mr. Ramsey was represented by counsel for his direct appeal but that this representation was specifically concluded after  [*4]  the affirmance of the appeal. It appears that under all of these circumstances–incarceration out-of-state, lack of access to Florida legal materials, and lack of representation by counsel–the two-year time limit for filing the motion was tolled and did not begin to run until Mr. Ramsey was transferred to a Florida prison. Thus, on the face of Mr. Ramsey’s unrefuted motion and attachments that were before the postconviction court, the two-year time for filing his postconviction motion had not expired when Mr. Ramsey delivered the motion to prison authorities for mailing on June 16, 2005.

Accordingly, we reverse and remand for further proceedings. If the postconviction court finds that the documents attached to Mr. Ramsey’s motion are insufficient to establish that his out-of-state incarceration tolled the time for filing this motion, it shall hold further proceedings on the timeliness issue. See Lopez-Merced, 949 So. 2d at 363; Ballester v. State, 781 So. 2d 503 (Fla. 3d DCA 2001); Rolling v. State, 767 So. 2d 570 (Fla. 3d DCA 2000). Otherwise, the postconviction court shall consider the motion on the merits.

Reversed and remanded as directed.

WHATLEY and DAVIS, JJ., Concur.

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CLIFTON LINDQUIST, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5621

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 2007, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

JUDGES:   ALTENBERND, Judge. FULMER and CASANUEVA, JJ., Concur.

OPINION BY:   ALTENBERND

OPINION  

ALTENBERND, Judge.

Clifton Lindquist appeals the order denying his motion to correct illegal sentences pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm but write to explain a scrivener’s error in his written sentences.

Mr. Clifton has a long and serious criminal record. In case number 97-15000 in the Circuit Court for Pinellas County, Mr. Clifton was sentenced in February 1998 to two concurrent thirty-year terms of imprisonment with minimum mandatory terms of thirty years. These sentences arose from two offenses committed in August 1997. He qualified for sentencing as a violent career criminal in these cases under sections 775.084(1)(c), (4)(c)(2), Florida Statutes (1997). Those statutes permitted a maximum sentence of forty years’ imprisonment with a minimum term of thirty years’ imprisonment for each count. The transcript clearly shows that the trial court made the findings necessary to sentence Mr. Lindquist under these statutes.

The sentencing forms used by the trial court to reduce these  [*2]  sentences to writing did not contain a section for sentencing as a violent career criminal. The trial court checked the box for sentencing as a habitual violent felony offender and entered a minimum term of thirty years in the space provided for the minimum term under such sentencing. The form recites that this sentence is imposed in accordance with the provisions of section 775.084(4)(b). If that were the case, the thirty-year minimum mandatory term would exceed the lawful limit. Because the oral pronouncement in the transcript makes it clear that the judge was imposing a violent career criminal sanction and not a habitual violent felony offender sanction, we treat this use of the form as a scrivener’s error and affirm the order denying the motion to correct illegal sentence.

Affirmed with directions to the court to correct the scrivener’s error in the sentences.

FULMER and CASANUEVA, JJ., Concur.

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WILLIAM JUNIOR SMITH, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-6039

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 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; William Fuente, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   FULMER, Judge. WHATLEY and CASANUEVA, JJ., Concur.

OPINION BY:   FULMER

OPINION  

FULMER, Judge.

William Junior Smith challenges his convictions for battery on a law enforcement officer and obstructing or opposing an officer with violence. We reverse the convictions because the State failed to show that the officers were engaged in the lawful execution of a legal duty when they attempted to detain Smith.

Smith argues that the trial court erred when it denied his motion for judgment of acquittal. We review the denial of a motion for judgment of acquittal de novo. Lester v. State, 891 So. 2d 1219, 1220 (Fla. 2d DCA 2005).

During the argument on the motion for judgment of acquittal, the defense argued that the State had not proved that the officers were acting in the lawful execution of a legal duty. The trial court interjected: “Let me stop you. You can never resist anything with violence.” At the time  [*2]  the trial court made this statement, it was consistent with the case law of this district. See Rodriquez v. State, No. 2D05-1929, 2D05-3481, 32 Fla L. Weekly D1615 (Fla. 2d DCA June 29, 2007) (citing Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002); Nesmith v. State, 616 So. 2d 170, 171-72 (Fla. 2d DCA 1993); Kaigler v. State, 913 So. 2d 1254, 1255 (Fla. 2d DCA 2005), quashed, 944 So. 2d 340 (Fla. 2006), opinion on remand, 947 So. 2d 671 (Fla. 2d DCA 2007)). However, while this case was pending on appeal, the Florida Supreme Court decided Tillman v. State, 934 So. 2d 1263 (Fla. 2006), which clarifies the law applicable to this case.

Under Tillman, if an officer is not engaged in the lawful performance of a legal duty when the defendant’s use of force occurs, the proper analysis of the judgment of acquittal motion depends upon whether the use of force occurred either (a) before the defendant was placed under arrest (a “non-arrest case”) or (b) during or after an actual arrest (an “arrest case”). See Tillman, 934 So. 2d at 1269-71; J.H.M. v. State, 945 So. 2d 642, 644-46 (Fla. 2d DCA 2006); State v. Roy, 944 So. 2d 403, 405-06 (Fla. 3d DCA 2006).

In J.H.M., this court stated that “it  [*3]  is unlikely that J.H.M.’s case ever became an ‘arrest case’ because there is no evidence in the current record that any officer ever communicated ‘an intention or purpose then and there to effect an arrest.’” 945 So. 2d at 646 (quoting Bulgin v. State, 912 So. 2d 307, 313-14 (Fla. 2005) (Bell, J., concurring)). In the instant case, there was conflicting evidence as to whether the officers involved intended to arrest Smith when they attempted to detain him. There was no evidence that an intent to arrest was communicated to Smith by the officers. Thus, we conclude that this case involved a non-arrest scenario when the battery was committed. Further, we agree with Smith that the State did not show that the officers who chased Smith and ordered him to stop had a reasonable suspicion that a crime was being committed.

Because the State’s proof did not establish the crimes for which Smith was convicted, we reverse the convictions. On remand, the trial court should adjudicate Smith guilty of simple battery as a lesser-included offense of battery on a law enforcement officer and sentence him for the first-degree misdemeanor. See Rodriguez, 32 Fla. L. Weekly at D1617. The trial court should enter  [*4]  a judgment of acquittal to the charge of obstructing or opposing an officer with violence. See id.

Reversed and remanded with directions.

WHATLEY and CASANUEVA, JJ., Concur.

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DIANA NUSSPICKEL, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-5956

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 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.

COUNSEL:   James Marion Moorman, Public Defender, and Jack W. Shaw, Special Assistant Public Defender, Bartow, for Appellant.

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

JUDGES:   SILBERMAN, Judge. LaROSE, J., and BRODIE, LAUREN L., ASSOCIATE JUDGE, Concur.

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

Diana Nusspickel challenges her convictions and sentences for seven counts of misdemeanor battery arising from her operation of a motor vehicle. We affirm but write to explain our decision with respect to Nusspickel’s argument that the trial court may have relied upon improper considerations in sentencing her. As to Nusspickel’s other arguments, we affirm without discussion.

On January 24, 2003, Nusspickel struck several individuals while operating a motor vehicle in a parking lot at Fossil Park in St. Petersburg. The State charged her with eight counts of aggravated battery but dropped one count on the day of trial. n1

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Nusspickel was also charged with and pleaded guilty to DUI. That charge also arose from the incident on January 24, 2003.
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The testimony at trial consisted of widely divergent  [*2]  explanations of the incident. The State contended that Nusspickel intentionally struck and injured the victims with the vehicle. Nusspickel did not dispute that she was the driver, that the vehicle struck the victims, or that some of the victims were injured. However, she denied that she intentionally struck the victims. She claimed that the victims had threatened her and a friend, that the victims refused to move from behind the parked vehicle, and that she accidentally struck the victims when she attempted to leave the park.

At the conclusion of the evidence, the trial court instructed the jury on the elements of aggravated battery and the lesser-included offenses of misdemeanor battery and reckless driving. The court also instructed the jury as to self-defense. The jury returned a verdict finding Nusspickel guilty of seven counts of misdemeanor battery.

A number of individuals testified at the sentencing hearing concerning the incident and the injuries that resulted from the incident. One victim’s mother testified that after the incident, she took her son to get a restraining order against Nusspickel “because she’s coming around, circling my home with her friends and her brother,  [*3]  putting their hands out the car window, making gun gestures at him, stating that she was coming back for him.”

Just prior to imposing sentence, the judge commented that it appeared to him that the jury granted a pardon to Nusspickel by returning a verdict for the lesser offenses of misdemeanor battery. The judge observed that if Nusspickel had been convicted of the aggravated batteries as charged, the sentencing guidelines would call for a sentence of at least seventeen years in state prison. The judge added that he was not sure that a seventeen-year sentence, or any sentence, would satisfy the victims.

The judge also commented that

I just can’t imagine, I just can’t imagine, after causing the kind of injury, that you would — almost killing someone — that you would not just do everything you could to avoid having any contact with that individual or to do anything of that sort. It just distresses me greatly to think that that would occur.Defense counsel interjected, disputing that any other incidents had occurred. Counsel noted that there had been a hearing before another judge on a motion to increase Nusspickel’s bond and that “there’s a lot of emotion and back and forth between these  [*4]  folks. So I would ask the Court not to assume that that did, in fact, happen as part of your decision making process.” The judge stated, “All right,” and proceeded to sentence Nusspickel on the seven battery convictions to four consecutive one-year jail terms followed by three consecutive one-year probation terms, with no early termination of probation. n2

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -2

Absent a prior battery conviction, the crime of battery is a first-degree misdemeanor punishable “by a definite term of imprisonment not exceeding 1 year.” §§ 775.082(4)(a), 784.03(1)(b), Fla. Stat. (2002).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Nusspickel filed a motion to correct sentencing errors, alleging, among other things, that the judge’s comments reflect that in imposing sentence, the judge violated her due process rights. Nusspickel argued that the judge improperly considered the aggravated battery charges of which she had been acquitted and the purported misconduct of driving by and taunting a victim. In the order denying the motion the judge explained his earlier comments and his reasons for the sentences that he imposed, as follows:

The evidence at trial and the verdict of the jury supported the State’s allegation that the Defendant intentionally ran down seven  [*5]  fellow teenagers with an automobile in the parking lot of a city recreation center. Two of the seven victims of the Defendant’s conduct incurred very serious injuries.

. . . .

. . . The facts concerning the striking of the victims or the extent of their injuries were not contested during the trial, nor were they challenged at the sentencing hearing. In fact, during the sentencing hearing defendant’s counsel and the Defendant herself conceded that victims Hodge and Bailey suffered serious bodily injury as a result of her criminal behavior.

. . . .

. . . In pronouncing the sentence and admonishing the Defendant regarding the actions for which she had been convicted, this court stated the obvious — that the Defendant’s conviction for battery with an automobile in the face of conceded and uncontested evidence of serious bodily injury to two of the victims constituted a jury pardon. These statements were not to justify the sentence that the court had chosen to impose, but to emphasize to the Defendant how fortunate she had been to avoid felony convictions for seven counts of aggravated battery which carried a potential maximum sentence of one hundred and five (105) years in state prison and  [*6]  for which the minimum guideline sentence was seventeen (17) years. The court’s statements regarding the jury pardon were also made in order to acknowledge to the victims and their families the frustration and bewilderment that they were experiencing with a legal system that they had turned to for justice in this case.

. . . .

. . . The fact that the jury chose to grant a jury pardon does not preclude this court from considering serious harm as a factor in determining an appropriate sentence. The recognition of the existence of a jury pardon in this case is irrelevant to the issue of sentencing for the Defendant’s misdemeanor offenses. Conviction for a lesser included offense necessarily requires a sentence within the statutory range for that level of offense. However, in determining that sentence the court is not precluded from considering the existence of serious injury merely because such injury also constitutes an element of a greater offense for which the Defendant was not convicted. In this case, the sentence imposed was not a function of a belief that the Defendant was guilty of aggravated battery.

Nusspickel argues that the judge’s statements reflect that he may have improperly  [*7]  taken into account (1) his expressed belief that Nusspickel was guilty of the aggravated battery charges even though the jury convicted her on each charge of the lesser-included offense of simple battery and (2) misconduct that had not been charged and proved relating to her alleged contact with one of the victims after the charged incidents. She also asserts that the State cannot carry its burden to show that the judge did not rely on these impermissible considerations.

Generally, the trial court’s imposition of a sentence that is within the minimum and maximum limits set by the legislature “is a matter for the trial Court in the exercise of its discretion, which cannot be inquired into upon the appellate level.” Shellman v. State, 222 So. 2d 789, 790 (Fla. 2d DCA 1969); see also Booker v. State, 514 So. 2d 1079, 1082 (Fla. 1987) (recognizing that “this Court and the United States Supreme Court have embraced the notion that so long as the sentence imposed is within the maximum limit set by the legislature, an appellate court is without power to review the sentence”); Darby v. State, 216 So. 2d 29, 30 (Fla. 3d DCA 1968) (“An appellate court of this state will not disturb a sentence  [*8]  which is within the limit set by statute.”). In Fraley v. State, 426 So. 2d 983, 985 (Fla. 3d DCA 1983), the Third District stated the following:

Most assuredly, under the laws of this state a trial judge has considerable discretion as to what sentence to impose and where the sentence is within statutory minimums or maximums appellate review will be limited to determining whether the process used by the judge in arriving at a sentence was fair, particularly whether the factors taken into consideration were relevant and reliable.

Nusspickel cites to several cases that discuss an exception to the general rule, including Epprecht v. State, 488 So. 2d 129 (Fla. 3d DCA 1986), and its progeny, Doty v. State, 884 So. 2d 547 (Fla. 4th DCA 2004), Seays v. State, 789 So. 2d 1209 (Fla. 4th DCA 2001), and Cook v. State, 647 So. 2d 1066 (Fla. 3d DCA 1994). In Epprecht, the Third District held “that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence.” 488 So. 2d at 131. If portions of the record reflect that the trial court may have relied upon impermissible considerations in imposing sentence, the State bears the burden to  [*9]  show from the record as a whole that the trial court did not rely on such impermissible considerations. Id. at 130. Further, unsubstantiated allegations of misconduct or speculation that the defendant probably committed other crimes may not be relied upon by a trial court in imposing sentence. See Doty, 884 So. 2d at 550; Reese v. State, 639 So. 2d 1067, 1068 (Fla. 4th DCA 1994); Epprecht, 488 So. 2d at 131.

In Howard v. State, 820 So. 2d 337, 340 (Fla. 4th DCA 2002), the court stated that the exception to the general rule is “where the facts establish a violation of a specific constitutional right during sentencing.” The court noted, however, that a sentencing court may consider all relevant factors when imposing sentence and need not “turn a blind eye” to uncontradicted evidence that was before the court. Id. In Dowling v. State, 829 So. 2d 368, 371 (Fla. 4th DCA 2002), the court affirmed a sentence even though the prosecutor used the sentencing hearing to tell the trial court about alleged criminal conduct that the state admitted it could not prove beyond a reasonable doubt. Dowling reiterated that “it is not a violation of a defendant’s constitutional rights to consider other relevant  [*10]  factors when determining an appropriate sentence.” Id. (citing Roberts v. United States, 445 U.S. 552, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980); Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949)). The court noted that defense counsel did not object to the testimony from various witnesses at the sentencing hearing, he cross-examined those witnesses extensively, and “the defendant was given a full opportunity to explain his position and call his own witnesses.” Id.

Recently, this court considered a defendant’s due process challenge to his sentences. In Harris v. State, 959 So. 2d 794, 796 (Fla. 2d DCA 2007), the defendant, relying on Doty, argued that the trial court violated his due process rights during sentencing by considering conduct for which the jury had acquitted him. The majority determined that any error was harmless but also noted that it was “not convinced that the trial court relied upon the conduct for which Mr. Harris was acquitted in imposing the five-year sentence.” Id. at 797.

In a concurring opinion, Judge Canady agreed with the majority decision to affirm but disagreed that the claimed error was harmless. He asserted that the majority should have reached the merits of the due process claim. Id. at 797-99. Judge  [*11]  Canady observed that under United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997), a jury acquittal is not a rejection of facts but is an acknowledgement that the prosecution did not prove an essential element of the offense beyond a reasonable doubt. Harris, 959 So. 2d at 799. He pointed out that Watts held “‘that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as the conduct has been proved by a preponderance of the evidence.’” Id. (quoting Watts, 519 U.S. at 157).

Judge Canady acknowledged that the holding in Watts has been limited by more recent Sixth Amendment decisions in the context of sentences that increase the penalty for a crime beyond the statutory maximum. Harris, 959 So. 2d at 800 (citing Cunningham v. California, — U.S. –, 127 S.Ct. 856, 166 L. Ed. 2d 856 (2007); United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). However, because Harris had been sentenced within the sentencing guidelines, Judge Canady determined that Apprendi and its progeny were not controlling. He stated that Harris was not entitled to relief on his due process  [*12]  claim because his argument “is based on a legal principle–as articulated in Doty–that is inconsistent with the Supreme Court’s decision in Watts.” Harris, 959 So. 2d at 800.

The majority in Harris commented that it was “inclined to agree with Judge Canady’s observation in his concurrence that the analysis in Doty is questionable.” Id. at 797. But because the majority concluded that any error was harmless, it declined to engage in a full analysis of the interplay between Doty, Watts, and Apprendi or to attempt to reconcile Doty with other opinions issued by the Fourth District. Id.

Here, during sentencing, the trial judge commented as to his belief that the jury gave Nusspickel a pardon by convicting her of lesser charges. The judge emphasized his concern about the seriousness of the incident and the punishment that Nusspickel would have faced had she been convicted of the more serious charges. When the judge briefly mentioned Nusspickel’s alleged contact with one of the victims after the incident, defense counsel immediately advised the judge that the defense maintained that the contact did not occur. The judge responded “[a]ll right” and made no further mention of that contact. The  [*13]  judge then imposed sentence, which was less than the maximum sentence that could have been imposed.

When the trial judge later considered Nusspickel’s motion to correct sentencing errors, he gave a detailed explanation of his sentencing decision. The judge noted that much of the evidence concerning the striking of the victims and the extent of their injuries was not contested during trial or at sentencing; that Nusspickel asserted self-defense at trial, which the jury rejected; and that the jury had been instructed regarding another lesser-included offense, reckless driving, but had convicted Nusspickel of battery on every count. The judge added that the State and the defense conceded at sentencing that the court could impose a maximum sentence of one year in the county jail for each count and that the sentences could be imposed consecutively. The judge also noted that the State, the victims, and the victims’ family members all requested the maximum sentence of seven years in jail.

The judge stated that his comments regarding a jury pardon were not made to justify the sentences but were made to emphasize to Nusspickel that she was fortunate to avoid felony convictions and the resulting  [*14]  exposure to a maximum sentence of 105 years in state prison and a minimum guidelines sentence of 17 years. The judge added that his comments were made to acknowledge the frustration and bewilderment of the victims and their families concerning the legal system.

After considering the trial judge’s comments in the context of the record as a whole, including the detailed explanation given in the order denying the motion to correct sentencing errors, we cannot agree with Nusspickel that in imposing the sentences the trial judge relied upon impermissible considerations. Each of the cases on which she relies involves specific circumstances that had to be reviewed by the appellate court in light of the record of the case. Unlike those cases, our record includes the judge’s own explanation as to his intent in making the complained-of comments. There is nothing in our record suggesting that the judge was not candid and sincere in his explanation.

Thus, the record does not support Nusspickel’s contention that reversal is required under Epprecht and its progeny. Although Nusspickel’s sentences are significant, they are less than the maximum that the judge could have imposed. Further, the record  [*15]  demonstrates that the sentencing process was fair and that the factors considered by the trial court in imposing the sentences were relevant and reliable. See Fraley, 426 So. 2d at 985. n3 Accordingly, we affirm Nusspickel’s convictions and sentences.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -3

Because of our conclusion that the record does not support Nusspickel’s claim that the trial judge relied on improper considerations in imposing the sentences, we need not address the interplay between the Supreme Court’s decision in Watts and the Epprecht line of cases relied on by Nusspickel. We also note that the parties did not discuss Watts in their briefs or at oral argument and that our decision in Harris was published after the filing of the briefs and the presentation of oral argument in this case.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Affirmed.

LaROSE, J., and BRODIE, LAUREN L., ASSOCIATE JUDGE, Concur.

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TAVARIS NESBITT, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-623

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 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.

JUDGES:   WHATLEY, Judge. ALTENBERND and KELLY, JJ., Concur.

OPINION BY:   WHATLEY

OPINION  

WHATLEY, Judge.

Tavaris Nesbitt appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of all Nesbitt’s claims, save one, without comment. We reverse the denial of claim eight and remand for further proceedings.

Nesbitt entered an open plea of guilty to two counts of armed robbery and one count of armed burglary of a conveyance. In claim eight, Nesbitt claims that his two convictions for armed robbery violate his constitutional protection from double jeopardy because they occurred during the same criminal episode and the State charged him with taking the same item–a purse and its contents–in each. In summarily denying the claim, the postconviction court attached a copy of the felony information and found that the convictions did not violate the protection from double jeopardy because each charge of armed robbery identified a different victim. See Hillman v. State, 410 So. 2d 180, 181 (Fla. 2d DCA 1982) (holding that “two  [*2]  robberies of different people at the same time are two separate offenses calling for two judgments and two sentences” when the defendants were convicted of taking a grandfather’s wallet, pistol, and car, and taking a grandson’s fishing equipment) (citing Hearn v. State, 55 So. 2d 559 (Fla. 1951)).

Although the information charged Nesbitt with separate robberies of two different victims, it described the purse that was taken from them as the property of only one of the victims. If Nesbitt took a single purse, there could only be a single “taking” and, consequently, only a single armed robbery. See § 812.13(1), Fla. Stat. (2004). Furthermore, it is improbable that two separate victims could have had possession of a single purse during Nesbitt’s criminal actions, but it seems equally improbable that both victims carried separate purses belonging to one victim. See id. In any event, the information is insufficient to conclusively refute Nesbitt’s claims, and the limited record before this court contains no further pertinent information.

Accordingly, we reverse the denial of this claim and remand for further proceedings. On remand, the postconviction court may attach documents that conclusively  [*3]  refute this claim or, if necessary, conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and KELLY, JJ., Concur.

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SAMUEL AUSTIN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-1769

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 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; Daniel H. Sleet, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Maura J. Kiefer, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   CANADY, Judge. NORTHCUTT, C.J., and SALCINES, J., Concur.

OPINION BY:   CANADY

OPINION  

CANADY, Judge.

Samuel Austin appeals his convictions for possession of cocaine, fleeing to elude, and obstructing or opposing an officer without violence. Austin argues that the trial court erred in denying his motion for judgment of acquittal. We reject that argument without further comment. Austin also contends that the trial court erred in denying his motion to suppress the cocaine which Austin asserts was obtained by the police as a result of an illegal traffic stop. For the reasons we explain, we conclude that the trial court correctly refused to suppress the cocaine.

The police attempted to effect a stop of the vehicle driven by Austin based on computer information, which was subsequently determined to be erroneous, indicating that the license plate displayed on the vehicle was assigned to another vehicle. When  [*2]  the officer attempted to stop Austin by activating the siren and flashing emergency lights of the officer’s patrol car, Austin increased his speed and refused to stop. After the officer who had attempted to stop Austin was joined in the chase by another officer, Austin jumped from his still-moving vehicle and ran from the pursuing officers. Ultimately, the officers were successful in collaring Austin by shooting him with a stun-gun. The cocaine at issue was contained in a plastic bag which Austin dropped as he ran from the officers.

It is true that a stop based on the erroneous information concerning the license plate would have been unlawful. See Shadler v. State, 761 So. 2d 279 (Fla. 2000); State v. White, 660 So. 2d 664 (Fla. 1995); State v. Murphy, 793 So. 2d 112 (Fla. 2d DCA 2001). But that point does not resolve this case.

Austin’s claim for suppression of the cocaine can most readily be rejected on the ground that the cocaine was dropped by Austin before he was seized by the police. The cocaine was obtained without a violation of Austin’s Fourth Amendment right to be secure against unreasonable seizures. “[S]ince [Austin] did not comply with [the officers' efforts to stop him,]  [*3]  he was not seized until he was [shot by the officers with the stun-gun]. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.” California v. Hodari D., 499 U.S. 621, 629, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991); see also State v. Battis, 926 So. 2d 427, 428 (Fla. 2d DCA 2006).

In view of the foregoing circumstance, we need not consider the additional factor that Austin’s commission of the offense of fleeing to elude dissipated the taint of any illegality associated with the initial unsuccessful attempt to stop Austin. See United States v. Bailey, 691 F.2d 1009, 1015-18 (11th Cir. 1983); Green v. State, 530 So. 2d 480, 481 (Fla. 5th DCA 1988) (on motion for rehearing en banc).

Affirmed.

NORTHCUTT, C.J., and SALCINES, J., Concur.

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JAMES A. WHITTEY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5708

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 2007, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

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

JUDGES:   SALCINES, Judge. NORTHCUTT, C.J. and WALLACE, JJ., Concur.

OPINION BY:   SALCINES

OPINION  

SALCINES, Judge.

In this appeal by James Whittey from the summary denial of his motion for postconviction relief, we affirm the order in all respects. We write only to comment upon the postconviction court’s denial of Mr. Whittey’s motion to extend the time to file his motion for rehearing.

Mr. Whittey’s claims were denied in two orders. The first order partially denied seven of his eight claims as facially insufficient and ordered the State to respond to the remaining claim. After the State’s response, the postconviction court entered a final order, with attachments, denying that claim.

Before the time had run for Mr. Whittey to file a motion for rehearing, he filed a motion asking for an extension of time to file his motion for rehearing. Mr. Whittey contended that he was entitled to another opportunity to frame facially sufficient claims but needed additional time because his access to the law library was limited. He specifically alleged that he is required to schedule law library time “via request  [*2]  slip” and that access is limited because the library’s capacity is twenty-six people for a penal institution housing approximately thirteen hundred inmates. The postconviction court denied the motion, citing State v. Boyd, 846 So. 2d 458 (Fla. 2003), for the proposition that extensions of time can be given if the defendant demonstrates good cause; unfortunately, however, Mr. Whittey did not do so.

Florida Rule of Criminal Procedure 3.050 provides that “[w]hen by these rules . . . an act is required or allowed to be done within a specified time, the court for good cause shown may, at any time, in its discretion . . . order the period enlarged . . . .” The Boyd case addressed this rule in the context of the two-year deadline for filing rule 3.850 motions and concluded that it was designed “only to afford a defendant a short period of extra time to file the motion where good cause is shown.” 846 So. 2d at 460. Good cause is “a substantial reason, one that affords a legal excuse, or a cause moving the court to its conclusion, not arbitrary or contrary to all the evidence, and not . . . hardship on petitioner.” Id. (quoting In re Estate of Goldman, 79 So. 2d 846, 848 (Fla. 1955)) (emphasis  [*3]  added).

In Daniels v. State, 892 So. 2d 526 (Fla. 1st DCA 2004), the First District granted a belated appeal to a petitioner whose timely motion for enlargement of time to move for rehearing was denied more than thirty days after entry of the order denying his motion for postconviction relief. Because of the trial court’s dilatory action, Daniels’ right to pursue his appeal was defeated. The Daniels court observed that the petitioner’s motion for extension of time should have been granted because his reasons for needing additional time stated good cause: the “need to schedule time in the prison library and to obtain the assistance of an inmate law clerk.” Id. at 527. In this case, Mr. Whittey cited Danielsand similarly alleged a need to schedule law library time, but he did not state that he needed the assistance of a law clerk. Furthermore, Mr. Whittey has not lost his appellate rights by virtue of the postconviction court’s denial of his motion.

Under rule 3.050, the postconviction court has discretion to act in matters of this kind, a concept that the Daniels court did not address. Here, the postconviction court concluded that Mr. Whittey was subject to no greater constraints than  [*4]  others filing motions under rule 3.850, that he apparently had adequate time to research his motion in the first place, and that mere hardship does not constitute good cause. Furthermore, although not delineated as a reason for denial by the postconviction court, Mr. Whittey’s allegations were generally factually, not legally, deficient, and he did not indicate how his limited access to the law library affected his ability to restate his claims. Because most of his claims had been denied in an order issued several months prior to the entry of the final order, Mr. Whittey had ample time to consider potential amendments to those claims. Thus, we cannot say that the postconviction court abused its discretion in denying Mr. Whittey’s motion to extend the time for filing a motion for rehearing.

Affirmed.

NORTHCUTT, C.J. and WALLACE, JJ., Concur.

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AMANDA ADAMS, Petitioner, v. STATE OF FLORIDA and RIC L. BRADSHAW, Palm Beach County Sheriff, Respondents.

No. 4D07-3738

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

September 28, 2007, DecidedPRIOR HISTORY:    [*1]

Petition for writ of habeas corpus to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard I. Wennet, Judge; L.T. Case No. 07-13037 CF.

COUNSEL:   Carey Haughwout, Public Defender, Daniel Cohen and Robert Fallon, Assistant Public Defenders, West Palm Beach, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for respondent State of Florida.

JUDGES:   SHAHOOD, C.J., STEVENSON and TAYLOR, JJ., concur.

OPINION  

PER CURIAM.

The petitioner seeks a writ of habeas corpus. She argues that the trial court improperly denied her bond. We agree and grant the petition.

Petitioner was arrested and charged with driving while her license was revoked. The first appearance magistrate denied petitioner bond for the sole reason that petitioner was on pretrial release in another case. The trial court erred in relying on the violation of conditions of pretrial release in a prior case to categorically deny pretrial release in this case. Newton v. State, No. 4D07-2556, 2007 Fla. App. LEXIS 13665, 2007 WL 2428596 (Fla. 4th DCA Aug. 29, 2007); Alexander v. Judd, 930 So. 2d 847 (Fla. 2d DCA 2006).

Accordingly, we grant the petition for writ of habeas corpus and quash  [*2]  the order denying bond. The trial court shall hold another bond hearing and consider pretrial release for petitioner in this case. If the state moves for pretrial detention and the statutory requirements are met, the court may order petitioner detained without bond in this case. See § 907.041(4)(c), Fla. Stat. (2007).

SHAHOOD, C.J., STEVENSON and TAYLOR, JJ., concur.

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