Florida Criminal Law Opinions

RUTH WEISS, Petitioner, v. STATE OF FLORIDA, Respondent.

No. 4D07-2054

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

September 26, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case No. 04-113AC10A.

COUNSEL:   Donna P. Levine of the Law Office of Donna P. Levine, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for respondent.

JUDGES:   KLEIN, J., WARNER and MAY, JJ., concur.

OPINION BY:   KLEIN

OPINION  

KLEIN, J.

Weiss seeks a writ of certiorari to review a circuit court appellate decision. The circuit court reversed a county court order which granted Weiss’s motion to suppress. We grant the petition because the circuit court applied the wrong standard of appellate review by reweighing the evidence presented at the suppression hearing.

Weiss was observed by an officer, around 3:00 a.m., weaving from one lane to another, while traveling northbound on University Drive in Sunrise, Florida. The record does not show the crime with which Weiss was charged, but the officer stopped her because she was concerned that the driving pattern indicated the driver “could possibly be under the influence of — she could possibly be sick. You know, there were numerous other things that could be going on.”

Weiss  [*2]  moved to suppress on the ground that the officer had no reasonable suspicion to stop her, and the trial court granted the motion, stating that the officer did not specifically suspect DUI and noting that there was no one else on the road. The state then appealed to circuit court, which reversed, but applied the incorrect standard of review.

In its opinion, the circuit court recognized that the trial court’s ruling on a motion to suppress is presumed correct, and that reversal is authorized only if the findings are not supported by competent substantial evidence, citing State v. Johns, 920 So. 2d 1156 (Fla. 2d DCA 2006). In reversing, however, the court stated that it was doing so because the traffic stop was supported by substantial competent evidence. The standard of review which should have been applied by the circuit court sitting in its appellate capacity was whether there was competent substantial evidence to support the county court’s ruling, Sunby v. State, 845 So. 2d 1006 (Fla. 5th DCA 2003).

In Sunby, just as in the present case, the officer stopped the defendant for weaving or failure to maintain a single lane. The county court granted the defendant’s motion to suppress on  [*3]  the ground that the weaving was not sufficiently erratic to give rise to a reasonable suspicion of impairment. The circuit court reversed, and the fifth district granted certiorari because the circuit court misapplied the law in reweighing the evidence.

Weaving, or failure to maintain a single lane, may or may not establish reasonable suspicion for a traffic stop, and accordingly a trial court ruling on a motion to suppress may be subject to reversal on the ground that no competent substantial evidence supported the ruling. Sunby; Hurd v. State, 958 So. 2d 600 (Fla. 4th DCA 2007); and Roberts v. State, 732 So. 2d 1127 (Fla. 4th DCA 1999).

In this case it cannot be said that the finding of no reasonable suspicion was not supported by substantial competent evidence. When the circuit court found substantial competent evidence to support the stop, it applied the incorrect standard of review, and that is a departure from the essential requirements of law. Sarasota Cty. v. Kemper, 746 So. 2d 539 (Fla. 2d DCA 1999); Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So. 2d 305 (Fla. 1st DCA 1995). We therefore grant the petition, vacate the opinion, and remand with directions to reinstate  [*4]  the order of suppression.

WARNER and MAY, JJ., concur.

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LOU JOSEPH, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-991

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

September 26, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 00-7683 CF10C.

COUNSEL:   David S. Molansky, Miami, for appellant.

No appearance required for appellee.

JUDGES:   WARNER, POLEN and HAZOURI, JJ., concur.

OPINION  

PER CURIAM.

Lou Joseph (Defendant) appeals an order summarily denying his rule 3.850 motion for postconviction relief, and the order denying his motion for rehearing. We affirm, but write to address his first two grounds for relief.

Defendant was charged with (I) burglary of a dwelling while armed; and (II) shooting into a dwelling house. Following a jury trial, he was found guilty of the lesser-included offense of burglary of a dwelling as to count I and acquitted of count II.

Defendant alleged in his postconviction motion that his trial counsel was ineffective for failing to (1) file a motion, after the jury acquitted him of count II, to challenge his conviction of count I, such as a motion in arrest of judgment, based on the contention that the state had failed to prove the intent element necessary to convict him of burglary of a dwelling; and (2) object to a jury instruction which omitted to charge the  [*2]  jury that the underlying felony that formed the intent element was discharging a firearm into a dwelling.

Defendant’s first two grounds are based on his contention that count I of the charging information alleged that shooting into the dwelling–the offense charged in count II–was the specific offense which he had the intention of committing when he entered. On the contrary, while the information in count I alleged that he discharged a firearm while committing the burglary, it did not charge that he entered with the intention of committing that specific offense. n1

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It charged that he:

did unlawfully, enter or remain in a dwelling, or the curtilage thereof, . . . property of Charmaine Dawkins, with intent to commit an offense therein, and in the course thereof they were armed within such dwelling with a dangerous weapon, to-wit: a handgun/firearm, and in fact, Lou Joseph [Defendant] did discharge said firearm during the course of committing said Burglary and as a result of said discharge, great bodily harm was inflicted upon Luc Patrick ALEXANDRE, contrary to F.S. 810.02(1), F.S. 810.02(2) and F.S. 775.087(2)[.](Emphasis added).
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There is no requirement that the state allege and prove  [*3]  that entry was made with the intent to commit a specific offense; however, even when it does so allege, so long as it also charges and proves “the essential element of intent to commit an offense,” the specific allegation is considered surplusage. See Toole v. State, 472 So. 2d 1174, 1175 (Fla. 1985). Thus, the fact that Defendant’s jury acquitted him of count II, committing the shooting offense, did not mean the state failed to prove the intent element of count I, so long as it proved he entered with the intention of committing some offense. See Duncan v. State, 606 So. 2d 1227 (Fla. 4th DCA 1992) (affirming conviction for attempted burglary of dwelling; prosecution need not specify in the charging document the specific offense intended by the perpetrator, and “proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense”) (quoting § 810.07(1), Fla. Stat.), n2 rev. denied, 618 So. 2d 1367 (Fla. 1993).

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As for Defendant’s contention that his alleged entry was anything but stealthy, we point out that gaining entry by deceit also supports a burglary  [*4]  conviction. Schrack v. State, 793 So. 2d 1102 (Fla. 4th DCA 2001).
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Nor must the judge instruct the jury on the underlying offense which the defendant intended to commit, Giangrasso v. State, 793 So. 2d 71, 73 (Fla. 4th DCA 2001), though the standard jury instruction is phrased to provide for doing so. “In many instances, the state does not know the exact offense intended by the defendant. In that case, absent section 810.07, the state could not take the case to a jury in the face of the Standard Jury Instruction.” Duncan, 606 So. 2d at 1229.

Affirmed.

WARNER, POLEN and HAZOURI, JJ., concur.

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

No. 4D07-902

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

September 26, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Dan L. Vaughn, Judge; L.T. Case No. 312004CF001331A.

COUNSEL:   Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   WARNER, STEVENSON and TAYLOR, JJ., concur.

OPINION  

PER CURIAM.

Antonio Ruan appeals the summary denial of his rule 3.850 motion for postconviction relief. In his motion, he raised two grounds for relief. Appellant’s second claim contained five sub-claims. We reverse on ground two, sub-claim four, and remand for an evidentiary hearing or for attachment of records which conclusively refute appellant’s allegations.

Appellant was arrested and charged with burglary of a dwelling and battery. Upon the advice of his attorney, appellant entered a plea of no contest to both charges and was subsequently sentenced to seventy-two months in prison.

In the claim at issue, appellant asserts that his trial attorney failed to share with him the victim’s description of the perpetrator. The victim allegedly described the perpetrator as a “tall black  [*2]  man.” Appellant states that this information was not shared with him before he pleaded no contest. Appellant also alleges that this information was exculpatory and that had he known of this alleged exculpatory information, he would have forgone pleading no contest and elected to go to trial. However, appellant did not give a description of his own accidental characteristics in his postconviction motion. The lower court summarily denied appellant’s claim as legally insufficient for failing to demonstrate deficient performance of counsel. Specifically, the lower court faulted appellant’s failure to provide his own physical description and his failure to explain how the perpetrator’s description is exculpatory.

To demonstrate ineffective assistance of counsel, an appellant must show that his counsel’s performance was deficient and that there is a reasonable probability that counsel’s deficient performance affected the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to show deficiency, a “‘claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing  [*3]  professional standards.’” Hannon v. State, 941 So. 2d 1109, 1118 (Fla. 2006) (quoting Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986)). An attorney’s obligation to advise a client of information crucial to making an informed decision concerning a plea is just as vital as not providing a client with misinformation concerning a plea. See Brazeail v. State, 821 So. 2d 364, 366 (Fla. 1st DCA 2002) (stating that “[t]he law of Florida has long recognized that a plea of guilty or nolo contendere may be vacated when the defendant has entered his plea as a result of mistaken advice by defense counsel as to the consequences of a plea”). Failure to disclose an exculpatory statement from the victim, if true, would undoubtedly demonstrate that counsel was “outside the broad range of reasonably competent performance under prevailing professional standards” as explained in Hannon. 941 So. 2d at 1118 (quoting Maxwell).

A trial court, when it has not conducted an evidentiary hearing, must accept a movant’s factual allegations as true to the extent they are not refuted by the record. Mullins v. State, 850 So. 2d 676, 677 (Fla. 4th DCA 2003). Here, appellant’s unrefuted factual allegations are  [*4]  that the victim described the perpetrator as a “tall black man” and that the victim’s description was an exculpatory n1 piece of evidence not communicated to him by his trial attorney prior to entering a plea. n2 Because the lower court was required to accept these allegations as true, it was also required to accept, by reasonable inference, that appellant did not fit the victim’s description of the perpetrator. Thus, in this case, appellant’s mere failure to include his own description in his motion was not fatal to his claim.

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Of course, conclusory arguments are insufficient to state an issue. See McDonald v. State, 952 So. 2d 484, 489 (Fla. 2006). However, we are not saying that the lower court must accept the legal conclusion that the victim’s identification is actually exculpatory. What is important here is that the information withheld was reasonably and potentially exculpatory in the eyes of appellant.2

We emphasize that in his motion, appellant did not merely state that his attorney failed to communicate to him exculpatory information. A simple claim that one’s attorney failed to provide exculpatory information, without more, would not have been enough to state a sufficient claim.  [*5]  See Szymanowski v. State, 771 So. 2d 10, 11 (Fla. 4th DCA 2000) (stating that appellant’s ineffective assistance of counsel claim failed because appellant did not indicate what erroneous information he received from counsel which affected his decision to accept a plea). Here, appellant alleged not only that his attorney failed to share with him exculpatory evidence, but also stated the specific character of the exculpatory evidence.
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The other issues raised on appeal are without merit and we affirm the summary denial of appellant’s 3.850 motion on those issues. As for the issue discussed above, we reverse and remand for an evidentiary hearing or for attachment of portions of the record conclusively showing appellant is not entitled to relief.

WARNER, STEVENSON and TAYLOR, JJ., concur.

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LOREN SPAULDING, Appellant, v. STATE OF FLORIDA, Appellee. ANN MARIE ROTTINGHAUS, Appellant v. STATE OF FLORIDA

No. 4D07-2076, No. 4D07-2313

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

September 26, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeals from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Burton C. Conner, Judge; L.T. Case Nos. 562001CF001155A & 562001CF001155B.

COUNSEL:   Loren Spaulding, Jasper, Pro se.

J. Peyton Quarles of Zimmet & Quarles, P.L., Daytona Beach, for Appellant-Ann Marie Rottinghaus.

No appearance required for appellee.

JUDGES:   GUNTHER, STONE and Farmer, JJ., concur.

OPINION  

PER CURIAM.

Loren Robert Spaulding and co-defendant below, Ann Rottinghaus, filed nearly identical petitions for writ of habeas corpus in the trial court. For purposes of this opinion, we have consolidated their appeals from the trial court’s orders denying their petitions.

Although we recognize that the trial court should have addressed the merits of the petitions, which alleged a lack of trial court jurisdiction, we affirm because jurisdiction appears on the face of the record. See Gunn v. State, 947 So. 2d 551 (Fla. 4th DCA 2006) (agreeing with Brown v. State, 917 So. 2d 272 (Fla. 5th DCA 2005), that “a trial court should review the merits of a postconviction motion, even if untimely, which raises a jurisdictional issue that was not previously considered on the merits”).

Rottinghaus and Spaulding were convicted of violating Florida’s  [*2]  RICO statute and prosecuted in St. Lucie County, Florida. Rottinghaus and Spaulding, along with several others, engaged in a criminal enterprise involving the fabrication and cashing of fraudulent checks at stores in multiple counties in Florida.

The petitions at issue argued that the St. Lucie County circuit court lacked jurisdiction over the RICO offense because the information was filed by the assistant state attorney for that judicial circuit. The petitions allege that only the statewide prosecutor had authority to file the charges because the acts constituting the pattern of racketeering activity were alleged to have been committed in multiple counties (in addition to St. Lucie County) and involved multiple judicial circuits.

Spaulding has unsuccessfully raised this exact same claim in three prior proceedings, in a rule 3.800 motion, a rule 3.850 motion, and an ineffective assistance of appellate counsel petition.

We write to reject these claims once and for all and to caution the appellants that continued filing of repetitive claims will result in this court no longer accepting their pro se filings and other sanctions. State v. Spencer, 751 So. 2d 47 (Fla. 1999); § 944.279, Fla. Stat.  [*3]  (2006). See Svoboda v. State, 932 So. 2d 545 (Fla. 5th DCA 2006).

The appellants allege that the statewide prosecutor has exclusive jurisdiction to prosecute offenses that are committed in more than one county. Here, because the fraudulent checks were cashed in numerous counties, in addition to St. Lucie County, the pair argues that only the statewide prosecutor could file charges against them. They allege that, because the statute of limitations on the offense has run, they must be forever discharged for their crimes.

Appellants cite cases that do not stand for what they allege and rely on the Florida Constitution’s provision creating the position of the statewide prosecutor. That provision, however, expressly states that the statewide prosecutor “shall have concurrent jurisdiction with the state attorneys to prosecute violations of criminal laws . . .” Art. IV, § 4(c), Fla. Const. (emphasis added); see also § 16.56(1)(a)3, Fla. Stat. (2000) (setting out the authority of the Office of the Statewide Prosecutor (OSP) and providing that the OSP “may” prosecute RICO violations).

While the statewide prosecutor can file charges only if the criminal violation occurred in two or more judicial  [*4]  circuits as part of a related transaction, this does not give the statewide prosecutor exclusive jurisdiction to prosecute continuing offenses that span multiple counties. See Winter v. State, 781 So. 2d 1111 (Fla. 1st DCA 2001) (holding that OSP has authority to prosecute crimes only if they involve two or more judicial circuits and are either part of a related transaction or part of an organized conspiracy) see also Snyder v. State, 715 So.2d 367 (Fla. 5th DCA 1998).

Here, the statewide prosecutor had jurisdiction to file the RICO charges against the appellants, but the State Attorney for the Nineteenth Judicial Circuit had concurrent jurisdiction to file the charges as well. The appellants were alleged to have committed numerous acts in St. Lucie County which constituted a pattern of racketeering activity. The trial court clearly had jurisdiction. In addition, the pair lived, and Rottinghaus was arrested, in St. Lucie County. When Rottinghaus was arrested, police found fraudulent checks, as well as a computer used for fabricating the checks and various forms of fraudulent identification, in her St. Lucie County residence.

In addition to this claim, Rottinghaus’ petition raised a second  [*5]  claim that the information insufficiently charged the crime because it lacked the “pattern element.” Rottinghaus previously raised this claim in a prior habeas corpus petition in this court, 4D05-2023, that was denied on the merits. This successive claim is without merit and was properly denied.

GUNTHER, STONE and Farmer, JJ., concur.

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TAVORRIS TUMBLIN, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-2314

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

September 26, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal of order denying rule from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Burton C. Conner, Judge; L.T. Case No. 562000CF001986A.

COUNSEL:   Tavorris Tumblin, Indiantown, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   GUNTHER, WARNER and MAY, JJ., concur.

OPINION  

PER CURIAM.

Tavorris Tumblin appeals the denial of his rule 3.800(a) motion to correct an illegal sentence. We reverse, holding that these convictions do not qualify him for sentencing under the prison releasee reoffender statute.

Following a jury trial, Tumblin was found guilty of burglary of a dwelling with an assault or battery, and he was sentenced to life in prison as a Prison Releasee Reoffender. In his 3.800(a) motion, he argued that his PRR sentence is illegal based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and State v. Overfelt, 457 So. 2d 1385 (Fla. 1984), because the facts required to support the enhanced sentence were not submitted to the jury. The jury did not make a specific finding that the dwelling was occupied. Tumblin’s offense was committed before the PRR statute was amended in response to State v. Huggins, 802 So. 2d 276 (Fla. 2001),  [*2]  to include burglary of an unoccupied dwelling.

The trial court denied the motion concluding that the jury did not need to find that the place burglarized was an occupied dwelling because the PRR statute applies to “any defendant who commits, or attempts to commit . . . [a]ny felony that involves the use or threat of physical force or violence against an individual.” See § 775.082(9)(a)1.o., Fla. Stat. (2000).

Contrary to the trial court’s reasoning, burglary with an assault or battery does not constitute a “forcible felony” that would qualify Tumblin for a PRR sentence. See State v. Hearns, 961 So. 2d 211 (Fla. 2007); Paul v. State, 958 So. 2d 1135 (Fla. 4th DCA 2007). In determining whether an offense is a forcible felony under the Violent Career Criminal and PRR statutes, the statutory elements of the offense must include the threat or use of physical force or violence. Hearns, 961 So. 2d at 213-17. The particular circumstances of the case are irrelevant.

The issue in Hearns was whether battery on a law enforcement officer is a forcible felony under the VCC statute. The supreme court concluded that it was not a forcible felony because the statutory elements do not necessarily include  [*3]  a threat of physical force or violence. The offense could be committed by an unlawful touching, “nominal contact.” Id. at 219.

In this case, the jury found Tumblin guilty of burglary with an assault or battery as charged in the information. Like battery on a law enforcement officer in Hearns, the offense could be committed by an unlawful touching during a burglary and does not necessarily include the threat or use of physical force or violence. Based on Hearns, Tumblin could not be sentenced as a PRR under section 775.082(9)(a)1.o, Florida Statutes (2000).

On appeal, the state agrees that Tumblin does not qualify for PRR sentencing. However, the state suggests that a new sentencing hearing is not required and that the case should simply be remanded for the trial court to vacate the PRR portion of the sentence.

We agree with Tumblin that he is entitled to a full resentencing hearing. See Hearns, 961 So. 2d at 219 (approving the Third District’s reversal of Hearns’s VCC sentence in Hearns v. State, 912 So. 2d 377 (Fla. 3d DCA 2005)). After concluding that Hearns did not qualify as a violent career criminal, the Third District held that he was entitled to a full resentencing hearing); see  [*4]  also Ross v. State, 901 So. 2d 252 (Fla. 4th DCA 2005) (granting a petition for writ of habeas corpus and remanding for resentencing because the defendant did not qualify for PRR sentencing). By finding that he qualified as a PRR at the original sentencing hearing, the trial court had no discretion and was required to sentence him to a mandatory term of life in prison. Although Tumblin still qualifies for a life sentence, on remand, the trial court may exercise its discretion in sentencing him.

GUNTHER, WARNER and MAY, JJ., concur.

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