Florida Criminal Law Opinions

RICHARD L. L’HEUREUX, DOC # 659221, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-4451

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

October 26, 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 Sarasota County; Harry M. Rapkin, Senior Judge, and Andrew D. Owens, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   VILLANTI, Judge. SILBERMAN and WALLACE, JJ., Concur.

OPINION BY:   VILLANTI

OPINION  

VILLANTI, Judge.

Richard L. L’Heureux appeals his convictions and sentences for burglary of an unoccupied dwelling, possession of burglary tools, resisting an officer without violence, fleeing an officer, driving with a suspended license, and reckless driving. Mr. L’Heureux challenges only the restitution orders entered against him. We reverse the two restitution orders entered on November 8, 2006, and otherwise affirm his convictions and sentences.

Under Florida Rule of Criminal Procedure 3.800(c), a court may modify a sentence “within 60 days after [its] imposition.” This rule has been interpreted to mean that a restitution order must be imposed at sentencing or within sixty days thereafter. See State v. Sanderson, 625 So. 2d 471, 473 (Fla. 1993). This is so because “the failure to impose restitution  [*2]  renders [a] sentence incomplete and subject to modification” within the sixty-day period of rule 3.800(c). Brock v. State, 604 So. 2d 32, 33 (Fla. 2d DCA 1992). Indeed, a trial court may properly order restitution within sixty days after failing to order restitution at sentencing and failing to reserve jurisdiction to do so. See Selwyn v. State, 903 So. 2d 361, 362 (Fla. 2d DCA 2005) (striking an order of restitution because it was not entered within sixty days of sentencing when the “trial court did not impose restitution [at sentencing], nor did any discussion of restitution occur at the [sentencing] hearing” and the original written judgment and sentence did not order restitution); Rada v. State, 656 So. 2d 165, 165 (Fla. 2d DCA 1995) (reversing an order of restitution because the judgment and sentence reflected that restitution was not ordered at sentencing and the subsequent restitution hearing was not held within sixty days). However, after restitution has been timely ordered, the amount of restitution may be determined beyond the sixty-day window. See Sanderson, 625 So. 2d at 473; Selwyn, 903 So. 2d at 362. Notably, the date of sentencing which starts the sixty-day clock is  [*3]  the date the sentence was imposed, not the date the sentence was filed. Scott v. State, 629 So. 2d 280, 281 (Fla. 5th DCA 1993).

Although a trial court may impose restitution within sixty days of sentencing, a trial court lacks jurisdiction to do so while a direct appeal is pending. See Jenkins v. State, 954 So. 2d 738, 738 (Fla. 2d DCA 2007); Colson v. State, 711 So. 2d 604, 605 (Fla. 2d DCA 1998); Pearson v. State, 686 So. 2d 721, 721 (Fla. 2d DCA 1997). In other words, a trial court’s jurisdiction to impose a restitution order is temporarily suspended once a notice of appeal is filed. See Butler v. State, 951 So. 2d 38, 40 (Fla. 2d DCA 2007).

In the present case, the trial court did not order restitution at sentencing on August 31, 2006, and Mr. L’Heureux timely filed his notice of appeal on September 29, 2006. Despite the notice of appeal having been filed, the trial court then held a hearing regarding restitution on November 8, 2006, and ordered restitution the same day, i.e., while Mr. L’Heureux’s appeal was pending. No exception existed to allow the trial court to exercise jurisdiction while this appeal was pending, and no relinquishment to do so was sought. Therefore, the trial  [*4]  court clearly lacked jurisdiction to enter restitution orders on November 8, 2006. As a result, the two restitution orders must be reversed. See Jenkins, 954 So. 2d at 738; Colson, 711 So. 2d at 605; Pearson, 686 So. 2d at 721.

However, rule 3.800(c) also allows a court to modify a sentence “within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal.” “Thus, the rules of criminal procedure clearly permit the sentencing judge to modify the defendant’s sentence after affirmance on appeal.” State v. Johns, 576 So. 2d 1332, 1335 (Fla. 5th DCA 1991); see also State v. Stevens, 616 So. 2d 995, 996 (Fla. 2d DCA 1992). Therefore, although we reverse Mr. L’Heureux’s restitution orders and otherwise affirm his convictions and sentences, the trial court may timely reimpose restitution on remand pursuant to the requirements of rule 3.800(c).

Affirmed in part; reversed in part.

SILBERMAN and WALLACE, JJ., Concur.

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HUGO J. FIORE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1346

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

October 26, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

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

COUNSEL:   James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   SAWAYA, ORFINGER and TORPY, JJ., concur.

OPINION  

PER CURIAM.

Appellant challenges his convictions for lewd or lascivious conduct and two counts of capital sexual battery. Concluding that the trial court erroneously admitted similar fact evidence, we reverse the judgment and sentence and remand this cause for a new trial. n1

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We have not overlooked Appellant’s argument that the trial court made an improper comment on the evidence during closing argument. We conclude that this issue was not preserved for review. See Foster v. State, 778 So. 2d 906 (Fla. 2000) (finding claim procedurally barred because defendant failed to make contemporaneous objections to trial judge’s comments or seek disqualification); Jones v. State, 612 So. 2d 1370, 1373 (Fla. 1992) (“It is error for a judge to comment on the evidence in the jury’s presence. . . The contemporaneous objection rules applies [sic] to such comments,  [*2]  however, and an appellate court will not reverse in the absence of an objection unless the comment is so prejudicial as to be fundamental error.”); Mathew v. State, 837 So. 2d 1167 (Fla. 4th DCA 2003) (holding because record devoid of contemporaneous objection, actions of trial court warrant reversal only if fundamental error). No fundamental error occurred on this point.
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The State filed a three-count information charging Appellant with lewd or lascivious conduct by a person eighteen or older and two counts of sexual battery upon a person under twelve. The information alleged that, between March 1, 1997, and September 30, 1997, Appellant fondled A.C.’s vagina, digitally penetrated her vagina and caused his mouth/tongue to unite with or penetrate her vagina.

At the time of trial, A.C. was seventeen years old. She testified that when she was eight years old, her family lived next door to Appellant and his family. A.C. and her brother, Michael, became friends with Appellant’s son. A.C.’s mother and Appellant’s wife became friends also. It was not uncommon for A.C. and her brother to spend the night at Appellant’s house. Sometimes A.C. would sleep in Appellant’s son’s room, other times she  [*3]  would sleep in the living room. A.C. testified that in the spring or summer when she was eight years old, she was asleep in Appellant’s son’s room when she awoke to discover Appellant rubbing her vagina on top of her underwear. On a second occasion, she was again sleeping in the son’s room when she awoke to discover Appellant digitally penetrating her vagina. She told him to stop and he did. On a third occasion, when she was sleeping in the son’s room, she awoke to discover her underwear down and Appellant touching her vagina with his hands and mouth. She started to cry. Appellant pulled her underwear up, turned on the light and started reading her a book. Appellant’s wife came into the room and asked what was wrong. Appellant told her that A.C. had had a nightmare.

The similar fact evidence involved two other victims, K.C. and K.D. K.C. was ten years old at the time of trial, and eight or nine years old at the time of the incident involving Appellant. Appellant was a friend of K.C.’s mother’s boyfriend. Appellant was at K.C.’s house late one night after going out with K.C.’s mother, her boyfriend and others. According to K.C., while others in the house were asleep, Appellant touched  [*4]  her on or near her “private part,” under her skirt, while she was sitting on the living room couch. K.C. said that Appellant told her that he was going to make a woman out of her. When K.C. got away from Appellant, she went upstairs and told her mother what had happened. Her mother confronted Appellant, who initially admitted the offense. Later in the morning, her mother reported the incident to the police.

K.D., Appellant’s niece, was twenty-four years old at the time of trial. She testified that when she was about sixteen, she went to stay with Appellant and his wife for half a summer. While home with Appellant and his toddler, K.D. was laying on the couch wearing silk pajama pants and a t-shirt. Appellant went over to talk to K.D., told her “I have to do it,” and pulled her pants down. While trying to pull her pants up, K.D. was crying and telling Appellant to stop. Appellant stopped and K.D. went to the bathroom. When she came out, Appellant took her to his bedroom, threw her on the bed, pulled her pants down and had intercourse with her. He ejaculated on her stomach. When Appellant’s wife came home, she heard K.D. crying in the bedroom. She walked into the bedroom and saw Appellant  [*5]  holding K.D. on his lap. She told Appellant to let K.D. go and he complied.

At a pretrial hearing, the trial court heard the witnesses’ testimony. The court also heard legal argument on Appellant’s motion to exclude the similar fact evidence and the State’s motion to permit the evidence. In denying Appellant’s motion and granting the State’s motion, the lower court relied on the legislature’s expansion of the evidence admissible under section 90.404, Florida Statutes, in child molestation cases.

During the jury trial, the State offered the testimony of K.C. and K.D. The State also offered testimony of K.C.’s mother, who corroborated, in part, K.C.’s testimony and Appellant’s wife, who corroborated, in part, the testimony of K.D. and A.C. In the State’s closing argument, the prosecutor highlighted the testimony of the similar fact witnesses and argued that the allegations in those cases demonstrated Appellant’s guilt by showing a pattern of conduct. The jury returned verdicts finding Appellant guilty of all three counts as charged in the information. The court designated Appellant a sexual predator and sentenced him to fifteen years on the lewd or lascivious count and life on the two  [*6]  sexual batteries with all sentences to run concurrently.

Generally, similar fact evidence of other crimes, wrongs or acts, is admissible when relevant to prove a material fact in issue, “including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” § 90.404(2)(a), Fla. Stat. (2006). It is, however, inadmissible when the evidence is relevant solely to prove bad character or propensity. Id. When child molestation is involved, section 90.404(2)(b)1., Florida Statutes (2006), broadens the admissibility of similar fact evidence, and provides that “evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.”

As we recently explained, even in child molestation cases, however, relevancy remains the threshold consideration for the admission of the evidence:

Even though section 90.404(2)(b), Florida Statutes allows evidence of other acts of child molestation to be admitted for any matter to which it is relevant, relevancy remains the threshold question to be considered. Thus, the more dissimilar  [*7]  the prior acts, the less relevant they are to the crime charged and the less likely they are to be admissible. In addition, even relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. In the case now before us the similarity between the collateral act of molestation perpetrated by Mr. Triplett with respect to another young woman and the charged molestation was a critical consideration for the trial court in conducting an appropriate weighing of the evidence required by section 90.403. See McLean v. State, 934 So. 2d 1248, 1258 (Fla. 2006). We think he got it right.Triplett v. State, 947 So. 2d 702, 703-04 (Fla. 5th DCA 2007).

In McLean v. State, 934 So. 2d 1248 (Fla. 2006), the Florida Supreme Court upheld the constitutionality of section 90.404(2)(b) from a due process challenge. The court held that section 90.404(2)(b) does not violate due process when applied in a case in which identity is not an issue and the collateral evidence is used solely to corroborate the victim’s testimony, provided that the trial court properly performs its critical function as gatekeeper, the similar fact evidence does not become a central  [*8]  feature of the trial, and the trial court gives a proper cautionary instruction on request. The court reasoned:

[T]he similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading a jury, or needless presentation of cumulative evidence.” § 90.403.

The similarity of the collateral act of molestation and charged offense is a critical consideration for the trial court in conducting an appropriate weighing under section 90.403. The trial courts are gatekeepers in ensuring that evidence of prior acts of child molestation is not so prejudicial that the defendant is convicted based on the prior sexual misconduct . . . .

. . . .

The trial court’s gatekeeping function is critical. In every case, the trial court must conduct the weighing required by section 90.403 . . . .

To guide  [*9]  the trial courts in deciding whether to admit evidence of prior acts of child molestation when it is offered to corroborate the victim’s testimony, we discuss the steps that the trial courts should take. Of course, before even considering whether to allow evidence of prior acts to be presented to the jury, the trial court must find that the prior acts were proved by clear and convincing evidence.

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.McLean, 934 So. 2d at 1259-62 (footnotes omitted).

Appellant argues that the trial court failed to recognize its gatekeeping function, as outlined in McLean. Instead, he argues,  [*10]  the court allowed any and all testimony concerning allegations of prior incidences of molestation without regard to relevancy and without weighing whether that evidence would unfairly prejudice him. Appellant argues that the evidence of other acts of molestation concerning both K.C. and K.D. were improperly admitted because the crimes were not sufficiently similar. He also argues that the probative value of the similar fact evidence of previous molestations was substantially outweighed by the danger of unfair prejudice.

In fairness to the trial judge, this case was tried before the supreme court decided McLean. We are, nevertheless, constrained to agree with Appellant that a new trial is warranted. The trial court did not perform the critical gatekeeping function mandated by McLean and, apparently, thought that he did not have discretion to exclude the evidence under the statute as worded. Contrary to the State’s argument, we are unable to conclude that this omission did not prejudice Appellant. There is a significant lack of similarity between the charged offense and K.D.’s allegations, and it is difficult to envision that this evidence can satisfy the McLean standard. Although the  [*11]  allegations relating to K.C. are more similar, and perhaps, admissible, the trial judge is in the best position to determine whether this testimony is properly admitted in light of McLean and its progeny. We are also of the view that the similar fact evidence became a central feature of the trial necessitating a new trial. Greater emphasis was placed on the offenses involving K.C. and K.D. than was placed on the charged offense involving A.C. A majority of the testimony related to these collateral crimes. A.C.’s testimony was sandwiched between the testimony of K.C. and K.D., and, in closing, the prosecutor continually addressed all three offenses.

REVERSED AND REMANDED.

SAWAYA, ORFINGER and TORPY, JJ., concur.

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

Case No. 2D07-2547

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

October 26, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Manatee County; Marc B. Gilner, Judge.

COUNSEL:   James Marion Moorman, Public Defender, Robert A. Young and Cynthia J. Dodge, Assistant Public Defenders, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan Hurley, Assistant Attorney General, Tampa, for Appellee.

Susan W. Fox and Wendy S. Loquasto, Fox and Loquasto, Tampa, for Walt Smith, Twelfth Judicial Circuit Court Administrator.

JUDGES:   NORTHCUTT, C.J., and ALTENBERND and WHATLEY, JJ., Concur.

OPINION  

CERTIFICATION OF FINAL DISPOSITION ORDER IN DELINQUENCY PROCEEDING AS REQUIRING IMMEDIATE RESOLUTION BY THE SUPREME COURT

Pursuant to Florida Rule of Appellate Procedure 9.125(a), this court certifies that the final disposition order in this delinquency proceeding is an order or judgment requiring immediate resolution by the supreme court.

The resolution of the appeal itself is not problematic. Rather, a procedural issue has arisen in this appeal that has a significant effect on the constitutional rights of numerous juvenile appellants. This is a recurring issue n1 that this court has been unable to resolve. Without immediate resolution of this issue by the supreme court, affected juvenile appellants  [*2]  may be deprived of their due process rights to prosecute their appeals with a sufficient record.

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See J.F. v. State, No. 2D07-1128; L.B. v. State, No. 2D07-2645; L.A. v. State, No. 2D05-3966; M.S. v. State, No. 2D05-145.
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The unresolved question appears simple: Who must pay for transcription of digital recordings of juvenile court proceedings in order to complete the appellate record? The issue has arisen because a legal disagreement exists primarily among the Twelfth Judicial Circuit Digital Court Recording Office, the Twelfth Judicial Circuit Official Court Reporter, “represented” in this proceeding and others by Walt Smith, the Twelfth Circuit Court Administrator, and the public defenders of the Tenth and Twelfth Judicial Circuit. Beneath this apparently simple issue, however, lie complex considerations of due process and court administration.

We have addressed the position of the various concerned entities in some detail in Moorman v. Hatfield, 958 So. 2d 396 (Fla. 2d DCA 2007). Moorman was a mandamus action deriving from the juvenile delinquency appeal in L.A. v. State, No. 2D05-3966, which also involved a dispute over the cost of a transcript. As in Moorman, some of the proceedings  [*3]  in A.L.’s case were digitially recorded by Twelfth Judicial Circuit Digital Court Recording. When the assistant public defender representing A.L. filed supplemental designations to the court reporter requesting the transcription and filing of the adjudicatory hearing, the Digital Court Reporting Manager, Janice Conway, responded by enclosing a CD of the proceedings with the caveat that the public defender is responsible for retaining a transcriptionist. The local court reporting plan requires the Twelfth Circuit Public Defender to deliver the CD provided by the Digital Court Recording Office to a transcriptionist and then provide the finished transcripts to the court and to appellate counsel (in this case, the Tenth Circuit Public Defender).

When the public defender moved for completion of the appellate record in this court, we ordered the court reporter to file a status report on transcription. At that juncture, Walt Smith, Court Administrator, intervened and pointed out that the appellant’s attorneys had not taken the appropriate steps to insure preparation and filing of the transcripts.

In reply to Mr. Smith, the appellant’s public defender claims that the Twelfth Circuit has received  [*4]  an appropriation through the Justice Administrative Commission to pay for written transcripts for indigent clients. Nevertheless, the public defender maintains that the Twelfth Circuit has created Administrative Order 2006-6-2 to exclude the cost of preparation of written transcripts in juvenile appeals such as this.

The unfortunate effect of this budgetary dispute is that juvenile appeals can languish while the interested parties argue about the responsibility for payment of transcripts. Because of the nature of juvenile dispositions, time can be of the essence. Moreover, failure of the appellant to file a complete record for review can result in the dismissal of the appeal or reversal of the juvenile’s disposition for lack of an adequate record. This court frankly admits that it has chosen to pass through A.L.’s case because timing is not as critical in this case as in the typical juvenile delinquency case. Adjudication was withheld, A.L. was not placed on probation, and the only issue on review apparently concerns the substantial amount of restitution that A.L. was ordered to pay for committing third-degree grand theft. Therefore, A.L. does not risk erroneous or extended detention  [*5]  while this monetary matter–totally unrelated to this particular case–is resolved by the courts.

In addition to concern for the potential recurring deprivation of due process rights suffered by juvenile appellants as a result of this issue, this court certifies this appeal for immediate resolution by the supreme court because of that court’s superior ability to resolve conflicts among the Florida Rules of Appellate Procedure, the Florida Rules of Judicial Administration, and local administrative rules and orders that affect several classes of constitutional or state officers. n2

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We recognize that, in a different context, the supreme court declined to review the Twelfth Circuit administrative order that was the predecessor to that involved in this case. See Administrative Order No. 2005-16-2 of the Twelfth Judicial Circuit Re: Court Reporting Plan, Case No. SC06-436, 939 So. 2d 1057 (September 7, 2006).
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NORTHCUTT, C.J., and ALTENBERND and WHATLEY, JJ., Concur.

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WILLIE BOONE, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 5D06-4213, 5D07-1169

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

October 26, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Brevard County, David Dugan, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

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

OPINION BY:   LAWSON

OPINION  

LAWSON, J.

Willie James Boone appeals from an order revoking his probation and sentencing him to thirty years in prison. He challenges both the basis for the revocation and the sentence imposed. We find no merit in Boone’s challenge to the finding that he violated his probation by committing new crimes. However, we agree with Boone that the trial judge imposed a sentence longer than allowed by law. Therefore, we reverse the sentence and remand for resentencing.

Boone was originally charged with attempted first degree murder. In 2000, he entered a plea bargain with the State pursuant to which he pled to a single count of aggravated battery, as a habitual violent felony offender, (“HVFO”), in exchange for a prison sentence of ten years, with four and a half years suspended. The State also waived Boone’s prison releasee reoffender status,  [*2]  a firearm minimum mandatory, and the minimum mandatory sentence set forth in the HVFO statute. The imposed sentence was a “true split sentence,” providing that after Boone served five and a half years the balance of his ten-year sentence would be suspended and Boone would be placed on probation for the remaining four and a half years.

Boone was released to probation after five and a half years, and violated his probation by breaking into a home and sexually battering the occupant. At Boone’s violation of probation proceeding in this case, the State relied solely on certified copies of judgments of conviction on charges of burglary of a dwelling (with an assault) and sexual battery, which bear the seal of the clerk of court from Jefferson County, Florida. n1 Contrary to Boone’s argument, the certified judgments provide a sufficient evidentiary basis to support the trial courts’ finding that Boone committed these subsequent crimes while on probation. n2 E.g., Stevens v. State, 397 So. 2d 398 (Fla. 5th DCA 1981), approved 409 So. 2d 1051 (Fla. 1982); see also, Tompkins v. State, 502 So. 2d 415, 420 (Fla. 1986) (recognizing certified copies of judgment and sentence are sufficient to support  [*3]  a jury finding, at penalty phase of capital case, of aggravating circumstance that defendant committed prior felony involving use of threat or violence). The trial judge then revoked Boone’s probation and sentenced him to thirty years in prison as a habitual violent felony offender.

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Boone is serving concurrent sentences of life and thirty years on the Jefferson County charges.2

On appeal, Boone also argues that the trial court’s reliance on the certified judgments violated his rights under the confrontation clause of the Sixth Amendment, citing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Because trial counsel did not make this objection below, however, we find that the issue was not preserved for appellate review. E.g., Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).
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Because Boone was initially given a “true split sentence,” he could not be sentenced upon revocation of his probation to a period that exceeded the original ten-year sentence, with credit for time served. Mack v. State, 823 So. 2d 746 (Fla. 2002). As explained in Mack:

[W]hen a sentencing court imposes a true split sentence, the judge has effectively sentenced the defendant in advance for a probation violation and is not  [*4]  later permitted to change his or her mind. Upon revocation of probation, the court may not order the defendant incarcerated for a period exceeding the suspended portion because to do so would be a violation of the double jeopardy clause.Id. at 748 n. 3 (citing Poore v. State, 531 So. 2d 161, 164 (Fla. 1988)).

Therefore, we affirm the revocation of Boone’s probation, reverse the sentence, and remand for resentencing consistent with this opinion. Because Boone was originally designated as a habitual violent felony offender, this designation is also appropriate upon resentencing.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

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

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WILLIAM C. FRISS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 5D07-1391

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

October 26, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

3.850 Appeal from the Circuit Court for Marion County, Brian D. Lambert, Judge.
Friss v. State, 940 So. 2d 440, 2006 Fla. App. LEXIS 15097 (Fla. Dist. Ct. App. 5th Dist., 2006)

COUNSEL:   William C. Friss, Lowell, Pro se.

No Appearance for Appellee.

JUDGES:   GRIFFIN, TORPY and LAWSON, JJ., concur.

OPINION  

PER CURIAM.

William C. Friss has initiated multiple, successive postconviction proceedings attacking his convictions and sentences on charges of attempted first-degree murder, solicitation to commit kidnapping, and solicitation to violate a domestic violence injunction, from Marion County case number 00-892-CF. In his last rule 3.850 motion, Friss once again raised claims which the trial court denied as successive and time-barred. We affirmed. Friss v. State, 940 So. 2d 440 (Fla. 5th DCA 2006). In his newest rule 3.850 motion, Friss raises the same claims again. The trial court once again denied the motion. We once again affirm.

Additionally, we ordered Friss to show cause why he should not be denied access to this court to further attack his Marion County convictions and sentences. See State v. Spencer, 751 So. 2d 47 (Fla. 1999). We have carefully reviewed Friss’ response to our order, and find no merit thereto.

At this point, Friss is abusing the judicial process by his successive attacks upon these convictions  [*2]  and sentences. Accordingly, in order to preserve judicial resources, William C. Friss is prohibited from filing any further pro se pleadings, motions or petitions in this court relating to Marion County case number 00-892-CF. The Clerk of the Fifth District Court of Appeal is directed not to accept any further pleadings in the above-styled case that have not been reviewed and signed by an attorney who is a duly licensed member of the Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So. 2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

GRIFFIN, TORPY and LAWSON, JJ., concur.

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VIRGIL MOBLEY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-4286

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

October 26, 2007, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Polk County; Judith J. Flanders, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

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

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

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), Virgil Mobley challenges the revocation of his probation and sentence in circuit court case number CF05-001390 after admitting to a probation violation. He also challenges his judgment and sentence in circuit court case number CF06-000574 after entering a no contest plea. We affirm in all respects except for a minor sentencing issue. See In re Anders Briefs, 581 So. 2d 149, 152 (Fla. 1991). The trial court granted Mobley’s motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) with regard to a portion of a probation condition but failed to enter a corrected probation order. Thus, we remand for the trial court to enter a corrected probation order in accordance with its order granting the rule 3.800(b)(2)  [*2]  motion.

Affirmed but remanded for entry of a corrected order.

FULMER and WHATLEY, JJ., Concur.

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WILBUR RUDOLPH, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-4276

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

October 26, 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 Highlands County; Olin W. Shinholser, Judge.

COUNSEL:   Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.

JUDGES:   FULMER, Judge. DAVIS and WALLACE, JJ., Concur.

OPINION BY:   FULMER

OPINION  

FULMER, Judge.

Wilbur Rudolph challenges the trial court’s denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, raising four issues. We reverse the summary denial of Rudolph’s claim that he received ineffective assistance of counsel when his counsel failed to object to an improper fine. On the other issues, we affirm the denial of relief without further discussion.

Rudolph alleged ineffective assistance of counsel at sentencing, asserting that his attorney failed to object to the imposition of a fine that was not authorized under the habitual offender statute. The trial court summarily denied this claim, reasoning that because the improper imposition of a fine can be raised by rule 3.800, the claim is inappropriately raised in a rule 3.850 motion. And, it reasoned, even if the claim can be raised in  [*2]  a rule 3.850 motion, Rudolph cannot show prejudice because “any sentencing error may be corrected at any time through the use of a [rule 3.800 motion].”

We reject the trial court’s reasoning on this issue. Rudolph raised a facially sufficient claim of ineffective assistance of counsel based on his counsel’s failure to object to the sentence. There was a legitimate basis for counsel to object to the sentence based on the imposition of the fine, see Willits v. State, 884 So. 2d 73, 74 (Fla. 2d DCA 2004) (noting that “section 775.084 does not authorize any fines”), and Rudolph received an illegal sentence as a result of counsel’s deficiency. See Penn v. State, 941 So. 2d 466, 466 (Fla. 1st DCA 2006) (“[T]he appellant raised a facially sufficient claim that counsel was deficient because there was a legitimate basis for objecting to the sentence imposed by the trial court and the appellant received an illegal sentence as a result of this deficiency.”).

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.

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ALANDER CRAPPS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-2275

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

October 26, 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 Leon County. Kathleen F. Dekker, Judge.

COUNSEL:   James C. Banks of the Law Office of Banks & Morris, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   DAVIS, J. ALLEN and BENTON, JJ., CONCUR.

OPINION BY:   DAVIS

OPINION  

DAVIS, J.

Appellant, Alander Crapps, appeals his judgment and sentence and argues that the trial court improperly sentenced him as a prison releasee reoffender (“PRR”) because, he contends, the offense of throwing a deadly missile into an occupied vehicle, as proscribed in section 790.19, Florida Statutes (2005), is not a qualifying offense for PRR classification under section 775.082(9)(a)1.o., Florida Statutes (2005). We agree. See Paul v. State, 958 So. 2d 1135, 1136 (Fla. 4th DCA 2007) (holding that the appellant, who was convicted of shooting a deadly missile into a dwelling, did not qualify as a PRR); Hudson v. State, 800 So. 2d 627, 628-29 (Fla. 3d DCA 2001) (holding that the crime proscribed by section 790.19 is not a forcible felony because it includes shooting or throwing at unoccupied buildings and, thus, does not, by statutory definition, necessarily involve physical  [*2]  force or violence against an individual); see also State v. Hearns, 961 So. 2d 211, 216 (Fla. 2007) (reiterating that the only relevant consideration in determining whether an offense constitutes a forcible felony is the statutory elements of the offense and that if “‘the use or threat of physical force or violence against any individual’” is not a necessary element of the offense, then the offense is not a forcible felony).

Accordingly, we REVERSE and REMAND for resentencing.

ALLEN and BENTON, JJ., CONCUR.

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RANDY DEWAYNE GIBSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-2106

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

October 26, 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 Sarasota County; Andrew D. Owens, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

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

OPINION BY:   KELLY

OPINION  

KELLY, Judge.

Randy Dewayne Gibson appeals an order denying his dispositive motion to suppress following his nolo contendere plea to carrying a concealed firearm, possession of cocaine, and possession of drug paraphernalia. We find no merit in Gibson’s argument that the search of his vehicle was illegal because police unreasonably delayed the traffic stop to allow a canine search of his vehicle. We do find merit, however, in Gibson’s claim that under the standard articulated in Matheson v. State, 870 So. 2d 8 (Fla. 2d DCA 2003), the State failed to establish that the narcotics detection dog’s alert provided probable cause for the search. Accordingly, we reverse.

In Matheson, this court rejected the argument that the State can make a prima facie showing of probable cause for a search based on a narcotics detection dog’s alert by demonstrating  [*2]  that the dog has been properly trained and certified. Id. at 12. Instead, this court held that the fact that a dog has been trained and certified to detect narcotics, standing alone, does not justify an officer’s reliance on the dog’s alert to establish probable cause. Id. at 14. To demonstrate that an alert by a narcotics detection dog is sufficiently reliable to furnish probable cause to search, the State must introduce evidence of the dog’s “track record” or performance history. Id. Although the officer who handled the dog testified that the dog was certified and had completed 400 hours of training, the State failed to elicit any testimony from him regarding the dog’s track record. The officer admitted that drugs are not always found when the dog alerts, but he could not quantify the percentage of false alerts. Under Matheson, the officer’s testimony was inadequate to establish the dog’s reliability. Thus, the State did not meet its burden to demonstrate that the officers had probable cause to search Gibson’s car.

In reversing, we certify direct conflict with State v. Coleman, 911 So. 2d 259 (Fla. 5th DCA 2005), and State v. Laveroni, 910 So. 2d 333 (Fla. 4th DCA 2005), both of which  [*3]  hold that the State can make a prima facie showing of probable cause based on a narcotics detection dog’s alert by demonstrating that the dog has been properly trained and certified.

Reversed and remanded for further proceedings consistent with this opinion; conflict certified.

WHATLEY and SILBERMAN, JJ., Concur.

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WALTER WESSEL, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-3837

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

October 26, 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 Lee County; James R. Thompson, Judge.

COUNSEL:   Steven S. Leskovich of Balliro, Galasso & Leskovich, LLC, Fort Myers, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   NORTHCUTT, Chief Judge. STRINGER and SILBERMAN, JJ., Concur.

OPINION BY:   NORTHCUTT

OPINION  

NORTHCUTT, Chief Judge.

Walter Wessel was convicted of two counts of lewd and lascivious molestation. Of the points raised in his appeal, we find merit in one–that the trial court erred by admitting evidence regarding Wessel’s sexual orientation. Accordingly, we reverse and remand for a new trial.

Wessel was charged based on allegations that he inappropriately touched his two young grandsons during bath time and while tickling them. At trial, and over objection, a State witness was allowed to testify that Wessel was homosexual. When urging the admission of this evidence, the prosecutor argued that Wessel’s sexual orientation was relevant to Wessel’s intent when touching his grandchildren. In closing arguments, the prosecutor suggested this connection to the jury by asserting that the defendant’s homosexuality was brought out at trial “because if  [*2]  the State needs to prove this touching is unchaste, part of his intent, part of what’s going through his mind, he is attracted to men.” However, the State offered no evidence of a connection between homosexuality and pedophilia.

This court has previously found reversible error in the admission of such evidence. In a prosecution for committing a lewd and lascivious act on a minor, we held that evidence of the defendant’s previous homosexual encounter with an adult was irrelevant and highly prejudicial. Clingan v. State, 317 So. 2d 863 (Fla. 2d DCA 1975). And in a prosecution for a “crime against nature,” we reversed based on the admission of irrelevant evidence showing that the defendant was homosexual. Harris v. State, 183 So. 2d 291, 292 (Fla. 2d DCA 1966).

Likewise in this case, we conclude that the evidence was irrelevant and prejudicial. “[T]here is absolutely no showing that homosexuals as a group are disposed to engage in pederasty.” Sias v. State, 416 So. 2d 1213, 1217 (Fla. 3d DCA 1982). The Sias court concluded that the erroneous admission of a police officer’s testimony regarding the defendant’s sexual orientation was harmless because this fact was also established by properly  [*3]  admitted testimony of a codefendant. Here, on the other hand, the harmfulness of this irrelevant evidence was clear. It may well have caused the jury to believe that conduct it might have considered innocent was, instead, done with criminal intent solely because the defendant was homosexual. Indeed, wittingly or unwittingly, in her closing argument to the jury the prosecutor suggested just that. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) (explaining that harmless error is found only when there is no reasonable possibility that error contributed to verdict).

Reversed and remanded for a new trial.

STRINGER and SILBERMAN, JJ., Concur.

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