Florida Criminal Law Opinions

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Shelton Lebronc Hanna, Appellant, vs. The State of Florida, Appellee.

No. 3D07-2294

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

October 31, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Israel Reyes, Judge. Lower Tribunal No. F99-41635B.

COUNSEL:   Shelton Lebronc Hanna, in proper person.

Bill McCollum, Attorney General, for appellee.

JUDGES:   Before GREEN, ROTHENBERG and SALTER, JJ.

OPINION  

PER CURIAM.

Shelton Lebronc Hanna, pro se, appeals the denial of his motion to vacate his conviction under Florida Rule of Criminal Procedure 3.850. Hanna alleged ineffective assistance of his counsel in connection with his counsel’s decision to oppose the severance of a count for the possession of a firearm by a career criminal from three other counts for armed robbery, armed carjacking and burglary with assault while armed.

Hanna also appeals the trial court’s denial of his “Motion to Hold Rule 3.850 Motion in Abeyance for Purposes of Preserving AEDPA Time Frames and Supplementation,” which was filed while the Rule 3.850 motion was pending, as well as the denial of his motion to strike the State’s response to that motion. Finding no error in any of these rulings, we affirm.

Hanna’s motion under Rule 3.850 fails because of the strong presumption that a tactical decision of the sort made by his counsel  [*2]  (and approved by Hanna himself during the proceedings on February 4, 2003) falls within the broad range of professional judgments made by defense counsel preparing a case for trial. That decision exposed Hanna to a single trial rather than two trials, and the pretrial stipulation regarding his status as a three-time convicted felon limited the State’s ability to offer extensive details regarding the underlying violent crimes. The record below does not demonstrate that defense counsel’s decisions on these matters were objectively unreasonable, and it does not establish that the outcome likely would have been different but for counsel’s decisions; see Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Hanna’s motion to hold his Rule 3.850 motion in abeyance and his motion to strike the State’s response to that motion are based on a flawed assumption. Hanna claims that the limitations period for a post-conviction federal petition might expire while his state remedies are pending, but that is incorrect. Under 28 U.S.C. § 2244(d)(2), that limitations period is tolled during the pendency of “a properly filed application for State post-conviction or other collateral review” relating to the underlying  [*3]  judgment.

Affirmed.

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SHERMAN LAVELL HINSON, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-2101

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

October 31, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Okaloosa County. Thomas T. Remington, Judge.

COUNSEL:   Sherman Lavell Hinson, Pro se, Appellant.

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

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

OPINION  

PER CURIAM.

Appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), raising three grounds for relief. We affirm the trial court’s denial of grounds two and three. We affirm the trial court’s amended judgment and sentence in response to ground one of appellant’s motion to the extent that it amended the sentence for count three to 11 months, 29 days in jail. However, we remand for the trial court to strike the appellant’s HFO designation on count three. See §§ 790.27(2)(b), Fla. Stat. (1995) (possession of a firearm with altered serial number is a first-degree misdemeanor); 775.084(1)(a) (restricting HFO sentences to defendants convicted of felonies); Hampton v. State, 711 So. 2d 200 (Fla. 5th DCA 1998). The appellant’s presence is not required. See O’Neal v. State, 862 So. 2d 91 (Fla. 2d DCA 2003).

AFFIRMED in part and REMANDED in part with  [*2]  directions.

BARFIELD, WOLF, and HAWKES, JJ., CONCUR.

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STATE OF FLORIDA, Appellant, v. BETTY JEAN WALTER, Appellee.

Case No. 2D06-2832

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

October 31, 2007, Opinion FiledNOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Pasco County; Linda H. Babb, Judge.

COUNSEL:   Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellant.

A.R. Mander, III, of Greenfelder, Mander, Murphy, Dwyer & Morris, Dade City, for Appellee.

JUDGES:   ALTENBERND, Judge. WALLACE and LaROSE, JJ., Concur.

OPINION BY:   ALTENBERND

OPINION  

ALTENBERND, Judge.

The State appeals the trial court’s order granting Betty Jean Walter’s motion to suppress evidence in its case against her for fraudulent use of personal identification n1; forgery of bank bills, checks, drafts or promissory notes n2; and grand theft. n3 We reverse because the trial court erred in finding that Ms. Walter’s statements were rendered involuntary by a detective’s statements during an initial interview.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -1

See § 817.568(2)(a), Fla. Stat. (2002).2

See § 831.07, Fla. Stat. (2002).3

See § 812.014(2)(c), Fla. Stat. (2002).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Beginning in the summer of 2002, Ms. Walter was employed by a wireless telephone company as a salesperson in a retail store. When a customer purchased wireless service, Ms. Walter would give the customer a form on which the customer would provide personal information. Ms. Walter would verify the customer’s information,  [*2]  provide them with a cellular phone, and activate their service. The store manager, the employee, and the customer would each keep a copy of the customer’s personal information. Ms. Walter received a $ 10 commission for each contract.

When Ms. Walter was unavailable to cover her shift, she arranged for other people who were not employed by the company to cover for her. Ms. Walter would write and sign the contract for the applications, and the nonemployees would use those contracts and her employee identification number to activate the service.

In 2004, a detective contacted Ms. Walter several times over the telephone during an investigation of identity theft. Apparently, personal information from customer forms used to establish wireless service had been misappropriated to establish false accounts, all of which used Ms. Walter’s street address as the customer’s street address. On April 7, 2004, the detective conducted a noncustodial interview with Ms. Walter in her home. The detective wore plain clothes. A friend of Ms. Walter also participated in the interview. Although the interview was recorded, the tape was stopped and restarted with no explanation.

During this interview, the detective  [*3]  told Ms. Walter that he was there to investigate her as a possible suspect in the fraudulent use of personal identification on cellular phone applications. He showed her an investigation packet assembled by her employer that documented the identity theft. He assured her that she would not be arrested that day and that she was free to terminate the interview at any point. The detective informed Ms. Walter, however, that any information she gave him would be turned over to the State Attorney. Showing her the stack of paper evidence, the detective stated:

I’ve got to be honest with you. I’ve got to be honest with you both. My job is to gather information. My job is to present what information I gather to the State Attorneys for prosecution. I’ve got to be honest with you, based on the evidence I have right now, I have enough to make the arrest.

I’ll be honest with you. I can tell you that. I told you that. If it comes down to it and you’re working with me, I told you I’ll work with you, but that’s why I want an interview first to get to the bottom of this.

. . . .

My job–my job is to clear this case and, if there’s enough evidence for prosecution, then that’s what I have to do and that’s  [*4]  just business. I mean, there’s no hard feelings. That’s just my job. That’s what I get paid to do.

Ms. Walter’s friend told the detective that Ms. Walter was nervous because she thought she was being placed under arrest. The detective responded, “I told her I wasn’t going to arrest her. I have no reason to lie to you, Ms. Walter. I told you that on the phone.” The friend proceeded to explain more details about the cell phone operation and the people involved. When Ms. Walter admitted that she knew about the scam but did not know how it was set up, the detective again showed her the forty pages of forged contracts that used her address. The friend asked if that was all of the detective’s evidence. He replied:

I have enough right here. That’s what we call probable cause. I need probable cause to make an arrest. Based on this packet alone, I have probable cause to make an arrest, but, once again, you’ve cooperated with me, Ms. Walter, I’m not going to do that.

I want to talk to you. I’m trying to give you the benefit of the doubt. I’m not accusing anybody of anything. That’s why I’m trying to get to the bottom of it. Like I said, my job is to gather information and forward it to the State  [*5]  Attorneys for prosecution and, if an arrest is necessary, that’s what I have to do.

At this point in time, it’s only an investigation. That’s why I’m out here talking to you. Once again, having cooperated, you’re not under arrest. You’re giving this interview of your own free will and you’re free to terminate at any time. You understand that; correct? Yes, no, maybe?

The interview continued with Ms. Walter explaining more about how the fraudulent wireless service scheme worked and implicating several other people as the primary participants. True to his statements, at the conclusion of the interview the detective did not arrest Ms. Walter.

Ms. Walter’s next reported contact on the case occurred almost a year later. On March 25, 2005, after reviewing the information and tapes from the previous investigation, a different detective conducted a follow-up interview of Ms. Walter in her home. The same friend that participated in the previous interview was again present. The detective wore plain clothes. The interview was taped. At the conclusion of this interview, the detective arrested her.

Ms. Walter filed a motion to suppress. The tape of the first interview was played during the suppression  [*6]  hearing. Without listening to the tape of the second interview, the trial court granted the motion to suppress the statements made at both interviews because it concluded the first detective had made coercive promises to Ms. Walter that the second detective did not withdraw. In concluding that the statements were involuntary, the trial court relied on Grasle v. State, 779 So. 2d 334 (Fla. 2d DCA 2000), in which the officer, under the auspices of friendship, promised to protect the defendant from certain charges.

On a motion to suppress, a trial court’s ruling is a mixed question of law and fact. Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006). The determination of what statements were made is a matter of historical fact subject to a presumption of correctness. See Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). Whether the statements constitute coercion, however, is a matter of law reviewed de novo. See Connor v. State, 803 So. 2d 598, 608 (Fla. 2001).

When a defendant challenges the voluntariness of his or her confession, the State has the burden to establish by a preponderance of the evidence that the confession was freely and voluntarily given. See De Coningh v. State, 433 So. 2d 501, 503 (Fla. 1983).  [*7]  Generally, a confession is not regarded as freely and voluntarily given if it has been elicited by a direct or implied promise of leniency. See Johnson v. State, 696 So. 2d 326, 329 (Fla. 1997). Where there is an express quid pro quo, such as a promise of protection from prosecution for cooperation, the promise of leniency may render a confession or inculpatory statement involuntary. See Walker v. State, 771 So. 2d 573, 575 (Fla. 1st DCA 2000). In Brewer v. State, 386 So. 2d 232 (Fla. 1980), the court concluded that the two officers’ actions were coercive because they “raised the spectre of the electric chair” and suggested the officers had the power to see that the defendant received leniency. Id. at 235.

A distinction exists, however, between improper police techniques that are “calculated to exert improper influence, to trick, or to delude the suspect as to his true position” and proper police statements of relevant facts. Thomas v. State, 456 So. 2d 454, 458 (Fla. 1984). A police officer can initially approach a suspect under the pretense of collecting information without that pretense rendering any admissions involuntary. See Lukehart v. State, 776 So. 2d 906, 917-20 (Fla. 2000).  [*8]  Voluntary statements that support an arrest do not “warrant a presumption of compulsion.” Brown v. State, 565 So. 2d 304, 306 (Fla. 1990), abrogated on other grounds by Jackson v. State, 648 So. 2d 85, 88 (Fla. 1994). Moreover, a statement is not rendered involuntary if the officers inform a suspect of realistic penalties, encourage the suspect to tell the truth, or tell the suspect that things would be easier if the suspect told the truth. Frazier v. State, 107 So. 2d 16, 22 (Fla. 1958); Nelson v. State, 688 So. 2d 971, 974 (Fla. 4th DCA 1997).

To render a statement inadmissible, the threat or promise must constitute “outrageous behavior” that induces the confession and must also have a “causal nexus between the improper police conduct and the confession.” Nelson, 688 So. 2d at 974; see also Fare v. Michael C., 442 U.S. 707, 727-28, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979) (stating that a mere indication by police that “a cooperative attitude would be to respondent’s benefit” was not sufficient to find the police coerced a waiver of Miranda n4 rights). An officer agreeing to “make one’s cooperation known to prosecuting authorities and to the court does not render a confession involuntary.” Maqueira v. State, 588 So. 2d 221, 223 (Fla. 1991).  [*9]

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -4

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Here, the first detective’s statements did not establish an express quid pro quo promise that Ms. Walter would be protected from prosecution if she cooperated. The first detective did not threaten harsher punishment if Ms. Walter did not cooperate. Taken in isolation, the statement “having cooperated, you’re not under arrest” might arguably appear to be a promise of leniency as to an initial arrest. See Johnson, 696 So. 2d at 330. In context, however, the statements do not misstate the importance of Ms. Walter’s confession or constitute “outrageous behavior” inducing her cooperation. Rather, the detective clearly informed Ms. Walter that he was conducting an investigation and that he must forward all information to the State Attorney. He twice stated that he had enough evidence to make an arrest and that if there was enough evidence for prosecution, an arrest might be necessary. Unlike the cases where the police made misleading promises of protection from prosecution, in this situation the detective informed Ms. Walter that she was a suspect in an investigation and that he would turn over any evidence he gathered. Finally, it should not be overlooked  [*10]  that the promise the initial detective made that he was just gathering information and was not there to arrest Ms. Walter was true. He did not arrest her. She was not arrested until almost a year later by another detective at a time when law enforcement decided that the case should be prosecuted. The detective did not use pressure, threats, or promises to coerce Ms. Walter’s statements. Therefore, she made voluntary admissions during a noncustodial interview that should not have been suppressed.

The order of suppression is reversed and the case is remanded for further proceedings. This opinion does not preclude Ms. Walter from challenging the circumstances of the second interview, which were not fully developed during the suppression hearing.

Reversed and remanded.

WALLACE and LaROSE, JJ., Concur.

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REGINALD DUANE COOPER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-4825

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

October 31, 2007, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Anthony K. Black, Judge.

JUDGES:   KELLY, Judge. SILBERMAN and CANADY, JJ., Concur.

OPINION BY:   KELLY

OPINION  

KELLY, Judge.

Reginald Cooper appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively refute Cooper’s claim that his counsel misadvised him regarding the length of the sentence he would receive after entering his plea, we reverse as to that claim. We affirm the postconviction court’s order in all other respects.

In case number 98-3182, Cooper pleaded guilty to grand theft, organized scheme to defraud, and money laundering and was sentenced to concurrent terms of sixty months’ prison, suspended, to be followed by ten years’ probation on all counts. He subsequently violated his probation by, among other things, committing another grand theft. At a hearing on October 21, 2003, Cooper entered a plea of guilty to the new grand theft charge in case number 03-4187, and he admitted violating his probation in case number 98-3182. On November 5, 2003, the court revoked Cooper’s probation in case number 98-3182 and  [*2]  sentenced him to concurrent terms of five years in prison on all counts. In case number 03-4187, the court sentenced Cooper to three years in prison, to run consecutive to the sentence imposed in case number 98-3182. Cooper did not appeal his judgments or sentences.

Cooper’s rule 3.850 motion alleges that his counsel was ineffective for misadvising him regarding the length of the sentence he would receive after entering his plea. Specifically, Cooper claims that his attorney induced him to enter a plea by telling him “that a sentence of 15 years would be handed down should [he] proceed and lose this trial,” and the five-year plea offer was less than what he might face after trial. Therefore, he pleaded with the expectation that he would receive a total of five years in prison for both cases, not eight.

The postconviction court denied this claim, noting that the State’s response indicated that “during Defendant’s plea proceeding, the trial court told Defendant specifically that his sentences in these two cases would run consecutive[ly], not concurrent[ly].” The State, however, did not rely on the events that transpired at Cooper’s October 21 plea hearing. Instead, it referred to the court’s  [*3]  oral pronouncement of Cooper’s sentence at the November 5 sentencing hearing. The fact that Cooper ultimately knew that the court sentenced him to consecutive terms totaling eight years, as evidenced by the transcript of the sentencing hearing, does not refute Cooper’s assertion that based on what his attorney told him when he entered his plea on October 21, he thought he was going to receive concurrent terms totaling only five years. Further, we find nothing in the transcript of the plea hearing, a copy of which is also attached to the postconviction court’s order, that refutes Cooper’s claim that he was misadvised regarding the length of the sentence he would receive after entering his plea. Accordingly, we reverse and remand for the postconviction court to either attach portions of the record conclusively refuting Cooper’s claim or to conduct an evidentiary hearing on the issue of counsel’s misadvice regarding the length of Cooper’s sentence. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and CANADY, JJ., Concur.

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T.L., A CHILD, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-1410

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

October 30, 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 Duval County. A.C. Soud, Jr., Judge.

COUNSEL:   Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

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

OPINION  

PER CURIAM.

T.L., a juvenile, was convicted of the criminal offense of grand theft auto. T.L. appeals a restitution order requiring him to pay the owner of the vehicle for damages the vehicle sustained during the theft.

A juvenile is entitled to be present at a restitution hearing unless he waives that right. See J.B. v. State, 646 So. 2d 808, 808 (Fla. 1st DCA 1994); Fla. R. Juv. P. 8.100 (2005). In J.B., this Court reversed the trial court’s restitution order because the juvenile was not present during the restitution hearing and there was no competent, substantial evidence that the juvenile effectively waived his right to appear at the hearing. 646 So. 2d at 808. J.B. controls in this case. Because T.L. was not present at the hearing and there is no competent, substantial evidence on the record indicating that he waived his right to be present, we reverse the  [*2]  restitution order. As such, we conclude that it is unnecessary to reach T.L.’s other arguments.

We reverse the restitution order and remand with directions that the trial court conduct a new restitution hearing.

REVERSED and REMANDED, with directions.

DAVIS, LEWIS and ROBERTS, JJ., CONCUR.

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JAMES E. SMITH, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-3535

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

October 30, 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 Columbia County. Paul S. Bryan, Judge.

COUNSEL:   James E. Smith, Pro se, Appellant.

Bill McCollum, Attorney General, Tallahassee, for Appellee.

JUDGES:   ALLEN, VAN NORTWICK, and ROBERTS, JJ., CONCUR.

OPINION  

PER CURIAM.

Having considered appellant’s response to this Court’s order dated September 18, 2007, we dismiss this appeal for lack of jurisdiction.

On November 11, 2005, appellant filed a motion to correct illegal sentence. The trial court denied the motion on September 25, 2006, and appellant filed a motion for rehearing on October 6, 2006. The trial court denied appellant’s motion for rehearing on April 4, 2007. On June 7, 2007, appellant filed a “Motion for Reconsideration of Defendants Motion for Rehearing.” The trial court denied the motion on June 7, 2007, and, on July 3, 2007, the appellant filed a notice of appeal. The notice of appeal is untimely. Appellant’s “Motion For Reconsideration Of Defendant’s Motion For Rehearing,” is an unauthorized motion for rehearing and does not delay rendition of the trial court’s order of September 27, 2006. See Fla. R. App. P. 9.020(h); Morris v. State, 630 So. 2d 232 (Fla. 3d DCA 1994). As such, appellant’s notice of appeal should  [*2]  have been filed within thirty days of the trial court’s denial of appellant’s timely motion for rehearing, filed on October 6, 2006. Fla. R. App. P. 9.140. Because the notice of appeal was filed more than 30 days after rendition of the order and the unauthorized motion for reconsideration did not delay rendition, this Court is without appellate jurisdiction. See Fla. R. App. P. 9.110(b). Any remedy for the trial court’s failure to inform appellant of his appellate rights with regard to the denial of his rule 3.800(a) motion should be sought by way of petition for belated appeal.

DISMISSED.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., CONCUR.

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ANDREW WIGGINS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D05-5879

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

October 30, 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 Alachua County. Mary Day Coker, Acting Circuit Judge.

COUNSEL:   Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Elizabeth Fletcher Duffy, Trisha Meggs Pate, Sheron L. Wells, and Charlie McCoy, Assistant Attorneys General, Tallahassee, for Appellee.

JUDGES:   VAN NORTWICK, J. BROWNING, C.J., AND ALLEN, J., CONCUR.

OPINION BY:   VAN NORTWICK

OPINION  

VAN NORTWICK, J.

Following his conviction for two counts of possession of cocaine, sale of cocaine, and possession of paraphernalia, Andrew Wiggins appeals the dual convictions for possession of cocaine arguing that the two convictions for the possession of a single quantity of cocaine constitute double jeopardy. We agree and reverse and remand for further proceedings.

Appellant was arrested as a result of an undercover purchase by the police. Appellant had a single quantum of cocaine from which he removed a portion and sold that portion to police. Below, as well as on appeal, the State asserts that two counts of possession can be charged on these facts. One charge pertains to the possession of the original quantum, while the second charge pertains  [*2]  to that same quantum less the amount sold to police. The trial court denied the motion for acquittal made below on the ground of double jeopardy.

In McGlorthon v. State, 908 So. 2d 554 (Fla. 2nd DCA 2005), the reviewing court reversed one of two convictions for possession of cocaine, one of which was premised on the possession of two pieces of cocaine sold to an undercover police officer while the other was premised on the possession of six pieces of cocaine that the defendant possessed after the sale. All eight pieces of cocaine were contained in the same storage container prior to the undercover sale. In finding a double jeopardy violation, the Second District noted that it “fail[ed] to see how there can be a legal distinction between the produce leaving the peddler’s hand or in his pocket and that still on the push cart.” 908 So. 2d at 556 (quoting Jackson v. State, 418 So. 2d 456, 458 (Fla. 4th DCA 1982)); see also Godfrey v. State, 947 So. 2d 565 (Fla. 1st DCA 2006)(holding that a conviction for possession of crack cocaine and another conviction for possession of powder cocaine constituted double jeopardy); Gibbs v. State, 698 So. 2d 1206 (Fla. 1997)(holding that dual convictions  [*3]  for trafficking possession and simple possession could not stand where the same quantum of cocaine was the basis for each offense); Robinson v. State, 901 So. 2d 1027-29 (Fla. 4th DCA 2005)(holding that defendant’s convictions for trafficking possession and simple possession could not stand where defendant dropped a bag of cocaine while fleeing and where police found other baggies of cocaine following a search incident to arrest); Lundy v. State, 596 So. 2d 1167 (Fla. 4th DCA 1992)(holding that double jeopardy clause prohibited convictions for trafficking in cocaine found in one container and possessing cocaine found in another). As the Lundy court explained,

to hold that a separate possessory crime is committed for each packet or package of the controlled substance within an offender’s possession at a given time and place goes well beyond the statutory elements of the crime. To allow such an arrest would lead to absurd scenarios, including the state’s charging more counts for the same amount of narcotics only due to the increased number of small packages of that illegal substance.596 So. 2d at 1168. n1

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -1

While the Fourth District receded from Lundy in Gibbs v. State, 676 So. 2d 1001 (Fla. 4th DCA 1996),  [*4]  the Florida Supreme Court thereafter quashed the Fourth District’s decision in Gibbs. See Gibbs v. State, 698 So. 2d 1206 (Fla. 1997).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Accordingly, appellant’s conviction and sentence as to one count of possession of cocaine is reversed. The remaining convictions and sentences are affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

BROWNING, C.J., AND ALLEN, J., CONCUR.

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ALBERT JAMES WELLS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-1886

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

October 30, 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 Alachua County. Robert P. Cates, Judge.

COUNSEL:   Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.

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

JUDGES:   BROWNING, C.J. ALLEN and VAN NORTWICK, JJ., CONCUR.

OPINION BY:   BROWNING

OPINION  

BROWNING, C.J.

Appellant seeks review of his conviction for sexual battery, and raises several issues on appeal. We affirm the trial judge’s denial of Appellant’s motion for judgment of acquittal, but reverse on the ground that the jury should not have been instructed on the theory of principals, and we remand for a new trial. In light of this result, we do not address the other issues on appeal.

Appellant was essentially accused of “acquaintance rape”; however, another male was with Appellant in the victim’s apartment on the evening in question, and that person was tried in a separate proceeding. In the instant proceeding, the State requested that the jury be given the principals instruction, and the trial court gave the instruction over Appellant’s objection. However, the record does not support the giving of the instruction because  [*2]  there was no evidence that Appellant both had a conscious intent that the crime be done, and also did an act or said a word intended to (and which did) incite the co-defendant to commit the crime. See Fla. Std. Jury Instr. (Crim.) 3.5(a). Appellant’s mere presence at the crime scene during overlapping intervals, without more, does not justify a principals instruction. See Shuler v. State, 801 So. 2d 1055 (Fla. 1st DCA 2001). The error is not harmless because the verdict does not reveal whether the jury relied on the principals theory to convict Appellant, and because the instruction was likely to cause confusion in light of the State’s emphasis in closing argument that Appellant was “as guilty as” the co-defendant for everything the co-defendant did.

REVERSED and REMANDED.

ALLEN and VAN NORTWICK, JJ., CONCUR.

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CARL BRADLEY MOORE, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 5D06-2409

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

October 26, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Jose R. Rodriguez, Judge.

COUNSEL:   Paul D. Johnson, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   LAWSON, J. PALMER, C.J., and PLEUS, J., concur.

OPINION BY:   LAWSON

OPINION  

LAWSON, J.

Carl Bradley Moore raises three issues challenging his convictions and sentences imposed after he entered open pleas to the bench to charges of false imprisonment of a child under age thirteen, n1 lewd or lascivious molestation, n2 and battery. n3 First, Moore argues that his convictions for both false imprisonment and molestation violate double jeopardy under the facts of this case. Second, he argues that his written sentences are inconsistent with the oral pronouncement, and are, therefore, invalid. Finally, he argues that his convictions must be set aside because the trial court did not have a sufficient factual basis to accept his pleas. We affirm the judgments and sentences, addressing each argument in turn.

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§787.02(3)(a), Fla. Stat. (2005).2

§800.04(5)(c)2, Fla. Stat. (2005).3

§784.03, Fla. Stat. (2005).
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Issue I — Double Jeopardy

1. Relationship between false imprisonment and molestation  [*2]  charges.

Section 787.02(1)(a), Florida Statutes (2005), defines “false imprisonment” to mean “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without authority and against her or his will.” Simple false imprisonment is a third degree felony. See § 787.02(2) Fla. Stat. None of the basic elements of false imprisonment are repeated in section 800.04(5)(c)2, which defines lewd and lascivious molestation. However, subsection (3)(a) of the false imprisonment statute provides that a person who falsely imprisons a child under the age of thirteen, and who, during the course of committing the false imprisonment, also commits any of a number of enumerated crimes on the child, commits a first degree felony punishable by life. Molestation is one of the crimes enumerated in subsection (3)(a).

In this case, Moore pled to both the lewd and lascivious molestation of his twelve-year-old victim, and to a false imprisonment during which he committed one of the enumerated felonies — the molestation. n4 Moore is correct in his assertion that each element of the crime of molestation, to which he pled, is also included within the false imprisonment charge to  [*3]  which he pled. However, Moore’s assertion that his two convictions violate double jeopardy is incorrect in light of an express statement of intent by the Legislature, in section 787.02(3)(b), Florida Statutes, that “separate judgments and sentences” be permitted for the first degree offense of false imprisonment of a child under age thirteen, and for any enumerated offense that the state must prove to establish a first degree false imprisonment. n5

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Moore trapped the victim in a hotel elevator, where he molested her.5

The exact wording of section 787.02(3)(b), Florida Statutes, is as follows: “Pursuant to § 775.021(4), nothing contained herein shall be construed to prohibit the imposition of separate judgments and sentences for the first degree offense described in paragraph (a) and for each separate offense enumerated in subparagraphs (a) 1.-5.” We believe that the Legislature intended to state that nothing contained in section 775.021(4) shall be construed to prohibit the imposition of separate judgments and sentences for first degree false imprisonment and for each offense enumerated in subparagraphs (a) 1.-5. We also acknowledge that this expression of legislative intent would have  [*4]  been clearer if written in positive language, stating that separate judgments and sentences “shall” or “may” be imposed for first degree false imprisonment and for each enumerated offense. Despite the poor drafting, however, we can discern no reason for the Legislature to have included this language except as an expression of legislative intent that separate judgments and sentences be permitted for these crimes. And, we see no other rational way to read subsection (3)(b).
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2. Double Jeopardy Analysis.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits “any person” from being “twice put in jeopardy of life or limb” for the same offense. U.S. Const. Amend. V. Florida’s constitution contains a similar prohibition. See Art. I, § 9, Fla. Const. The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds  [*5]  by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). With respect to multiple punishments imposed for the same conduct in a single prosecution, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). Consequently, “[t]he prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’” State v. Paul, 934 So. 2d 1167, 1171-1172 (Fla. 2006) (quoting M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996)). “Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger [v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)] n6 a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” State v. Barritt, 531 So. 2d 338, 341 (Fla. 1988) (citations omitted).

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In Blockburger, the United States  [*6]  Supreme Court created a test for use in determining whether multiple punishments for the same conduct violate double jeopardy “absent an explicit statement of legislative intent to authorize separate punishments for two crimes) . . . .” Paul, 934 So. 2d at 1172 (quoting Gaber v. State, 684 So. 2d 189, 192 (Fla. 1996)). In Florida, the Blockburger test has been codified in section 775.021, Florida Statutes.
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Based upon our conclusion that section 787.02(3)(b), Florida Statutes, is an explicit statement of legislative intent to authorize separate punishments for both false imprisonment of a child under age thirteen and for lewd and lascivious molestation, arising from the same criminal episode, we find no double jeopardy violation.

Issue II — Oral Pronouncement Of Sentences

In accepting Moore’s open pleas to the bench, the trial judge reiterated to Moore that he faced up to life in prison on the false imprisonment count, which Moore acknowledged that he understood. The court also accurately and separately described the penalties for each of the other crimes charged. After hearing testimony and argument from both sides at a separate sentencing hearing, the trial judge sentenced Moore “to  [*7]  spend the rest of your life in prison.” The judge did not orally pronounce any sentence except the life sentence. He then entered written sentences of life on the false imprisonment count, fifteen years on the molestation count, and time served on the misdemeanor count. The written sentencing documents order that all sentences run concurrently.

Moore did not object to the trial court’s failure to orally pronounce any sentence other than the life sentence, but did file a motion requesting that the judge reduce his sentence. The court granted a hearing on the motion, and heard from Moore again, giving him an unlimited amount of time to present additional evidence and argument in support of a reduced sentence. In what can only be described as a thorough, kind and patient manner, the trial judge then explained to Moore why he had imposed a life sentence. The judge concluded his remarks, directed to Moore, as follows: “[T]hose are all matters that I’ve considered, and I cannot in good conscience reduce the originally imposed sentence. I’m sorry.”

Again, Moore did not object to the court’s failure to orally pronounce the fifteen-year or misdemeanor sentences, either at the hearing on Moore’s  [*8]  motion for sentence reduction or in a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

As a general rule, a trial judge must both orally pronounce sentence and then enter a written sentence that conforms to the oral pronouncement. See generally, 15 Fla. Jur. 2d. Criminal Law § 2235 (2007). We find no violation of either requirement with respect to the life sentence imposed here. It is abundantly clear from the record that all parties accurately understood the potential penalties for each of the crimes to which Moore pled. The trial court orally pronounced a life sentence, which could only apply to the false imprisonment count. And, the written sentencing documents accurately reflect the life sentence with respect to this charge. Therefore, Moore is entitled to no relief as to this issue, at least with respect to his life sentence for false imprisonment.

With respect to the other charges, we believe that Moore would be entitled to relief if he had preserved the issue below. However, a defendant who pleads guilty or nolo contendere is barred from challenging an unpreserved sentencing error on direct appeal. See, e.g., Parris v. State, 32 Fla. L. Weekly D1742 (Fla. 5th DCA July 20, 2007);  [*9]  Fla. R. App. Proc. 9.140(b)(2)(A)(ii)(d). Because Moore did not object to the trial judge’s failure to orally pronounce anything but a life sentence below, or preserve this issue for review by filing a motion to correct sentencing error, he is not entitled to relief on direct appeal with respect to the molestation or battery charges. Id.

Issue III — Factual Basis For Plea

At the plea hearing, the trial judge took judicial notice of “the facts and matters that came and were placed before the Court at the bond hearing,” and stated that he believed these facts would provide “a factual basis for the acceptance of a plea here today.” Moore never objected to the factual basis relied upon by the court during the plea or sentencing hearing, or moved to withdraw his plea. A defendant who does not object to the adequacy of the factual basis relied upon in accepting a plea waives the issue on appeal. E.g., Binder v. State, 853 So. 2d 537 (Fla. 5th DCA 2003). n7 Therefore, Moore is not entitled to relief with respect to his third and final claim either.

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We note that even if a timely objection had been made, any defect in the factual basis could have been readily cured by reference to the facts alleged  [*10]  in the sworn charging affidavit contained within the court file. The charging affidavit provides a sufficient factual basis to support each of Moore’s pleas.
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For the reasons set forth above, we AFFIRM the judgments and sentences in all respects.

PALMER, C.J., and PLEUS, J., concur.

Courtesy of David Edelstein

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