Florida Criminal Law Opinions

JORGE PEREZ, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-3043

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

October 31, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 98-6695 CF10A.

COUNSEL:   Jorge Perez, Wewahitchka, Pro se.

Bill McCollum, Attorney General, Tallahassee, and August Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   POLEN, TAYLOR and MAY, JJ., concur.

OPINION  

PER CURIAM.

The appellant, Jorge Perez, appeals the trial court’s order denying his rule 3.800(a) motion to correct illegal sentence, alleging that he has not received the appropriate credit for time served. We affirm in part and reverse in part. Appellant alleges that he is entitled to relief for the time spent incarcerated in Miami-Dade from March 24, 2002 until March 29, 2002. He was held during this period based on a warrant issued in Broward County. This falls under exception to Gethers v. State, 838 So. 2d 504 (Fla. 2003) (a prisoner subject to release being held due to a detainer or warrant lodged from another county is entitled to jail time credit during that period). As such, Appellant is warranted five (5) additional days jail time credit. Accordingly, we reverse the trial court’s order and remand for the trial  [*2]  court to grant the appellant credit for the time spent in jail while between March 24, 2002 and March 29, 2002 while being held on a Broward County warrant. As to all other issues, we affirm.

POLEN, TAYLOR and MAY, JJ., concur.

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STATE OF FLORIDA, Appellant, v. JORGE JESUS LEON, Appellee.

No. 4D07-1003

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

October 31, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T. Case No. 2006CF005444AXX.

COUNSEL:   Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellee.

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

OPINION  

PER CURIAM.

The State charged the defendant, Jorge Jesus Leon, with bigamy in violation of section 826.01, Florida Statutes. Although another assistant state attorney was in attendance, when the filing attorney for the State failed to appear as ordered by the trial court, the trial court sua sponte entered an order of dismissal dismissing the case without prejudice and concluding that the State wasted the court’s time and acted in bad faith in initiating the prosecution. The State appeals the order of dismissal. The defendant concedes error and we agree that reversal is required because the trial court’s action in dismissing the case was an abuse of discretion and constituted an improper infringement upon the State’s discretion to prosecute. State v. Wheeler, 745 So. 2d 1094, 1096 (Fla. 4th DCA 1999).  [*2]  Therefore, we reverse and remand for reinstatement of the bigamy charge against the defendant.

Reversed and Remanded.

GUNTHER, WARNER and GROSS, JJ., concur.

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DANIEL ALBERT FISHER, JR., Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-3651

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

October 31, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Robert E. Belanger, Judge; L.T. Case No. 432006CF001180A.

COUNSEL:   David Albert Fisher, Jr., Indiantown, Pro se.

No appearance required for appellee.

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

OPINION  

PER CURIAM.

This appeal arises from the denial of Appellant’s motion pursuant to rule 3.800(a), Florida Rule of Criminal Procedure in which he makes two claims. First, Appellant alleged that errors were made in calculating his scoresheet which equated to a lower minimum possible sentence. The circuit court did not err in summarily denying this claim as Appellant entered into a negotiated plea agreement and the sentence imposed was not illegal. See Trigg v. State, 900 So. 2d 674 (Fla. 4th DCA 2005).

Second, he alleged that his counsel was ineffective in representing him in the plea negotiation. The circuit court did not err in summarily denying Appellant’s contention. This issue is more properly raised under Florida Rule of Criminal Procedure 3.850. Therefore, the issue of ineffective assistance of counsel is affirmed without prejudice to Appellant filing a motion that includes the oath required  [*2]  by Florida Rule of Criminal Procedure 3.850(c) within the time remaining under rule 3.850(b).

Affirmed.

WARNER, STEVENSON and HAZOURI, JJ., concur.

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Felix Freddy Morales, a/k/a Lamont Morales, Appellant, vs. The State of Florida, Appellee.

No. 3D07-2454

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, Beatrice Butchko, Judge. Lower Tribunal Nos. 95-20063; 95-34432.

COUNSEL:   Felix Freddy Morales, a/k/a Lamont Morales, in proper person.

Bill McCollum, Attorney General, for appellee.

JUDGES:   Before GREEN, ROTHENBERG, and SALTER, JJ.

OPINION BY:   ROTHENBERG

OPINION  

ROTHENBERG, Judge.

The defendant, Felix Freddy Morales, a/k/a Lamont Morales (”Morales”), appeals the trial court’s order denying his motion to correct his sentence. As we agree with the trial court, that granting a defendant credit for time served outside of the state of Florida on unrelated charges, when a warrant or detainer is issued by this state, is discretionary, not mandatory, we affirm.

While Morales was serving a sentence in New York on an unrelated charge, Miami-Dade County issued a warrant for Morales’ arrest and a hold was placed upon Morales to ensure his later transport to Miami-Dade County to answer the Miami-Dade County charges. Morales claims he is entitled to credit for time served in New York from the moment the Florida warrant was issued and verified in New York and a hold was placed on him. The trial court correctly ruled that it has discretion  [*2]  to grant Morales credit for the time he served in New York.

In Hopping v. State, 650 So. 2d 1087, 1088 (Fla. 3d DCA 1995), this court held that “[w]hen a prisoner is incarcerated in another state on charges unrelated to the Florida charge, detainer, or warrant, that prisoner is not entitled to credit for time served in the other state.” See also Kronz v. State, 462 So. 2d 450, 451 (Fla. 1985) (holding that the jail credit statute applies to Florida jails only, not to jails in other states, but courts have discretion to award jail credit when the defendant is incarcerated in another state based solely on Florida charges); Tribble v. State, 958 So. 2d 543, 543-44 (Fla. 4th DCA 2007) (affirming the trial court’s denial of the defendant’s motion for additional jail credit for time served in jail in another state).

Affirmed.

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The State of Florida, Appellant, vs. Glenn Smith Mulus, Appellee.

No. 3D06-2121

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

October 31, 2007, Opinion FiledPRIOR HISTORY:    [*1]

An Appeal from the Circuit Court for Miami-Dade County, Gill Freeman and Robert M. Deehl, Judges. Lower Tribunal No. 05-35380.
State v. Mulus, 2007 Fla. App. LEXIS 13006 (Fla. Dist. Ct. App. 3d Dist., Aug. 22, 2007)

COUNSEL:   Bill McCollum, Attorney General, and Lisa A. Davis, Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellee.

JUDGES:   Before COPE, SUAREZ, and LAGOA, JJ.

OPINION  

On Motion for Certification

PER CURIAM.

We certify that we have passed on the following question of great public importance:

WHETHER THE SOLE METHOD FOR IMPOSING A THREE-YEAR MANDATORY MINIMUM SENTENCE FOR POSSESSION OF A FIREARM BY A CONVICTED FELON IS TO ESTABLISH THAT THE DEFENDANT CARRIED THE FIREARM “ON THE PERSON” AS PROVIDED BY SUBSECTION 775.087(4), FLORIDA STATUTES (2005)?

We also certify direct conflict with Cook v. State, 816 So. 2d 267 (Fla. 1st DCA 2002).

Certification granted.

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