Florida Criminal Law Opinions

STATE OF FLORIDA, Appellant, v. KATLYN JO GRETZ, Appellee.

Case No. 5D07-310

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Hernando County, Donald Scaglione, Judge.

COUNSEL:   Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, J. THOMPSON, J., and SIMMONS, C., Associate Judge, concur.

OPINION BY:   GRIFFIN

OPINION  

GRIFFIN, J.

The State challenges on appeal the circuit court’s imposition of a downward departure sentence.

Appellee, Katlyn Gretz [”Appellee”] was charged by information with: count one (aggravated battery on a law enforcement officer), counts two through five (battery on a law enforcement officer), count six (aggravated battery with a deadly weapon), count seven (domestic aggravated battery with a deadly weapon), count eight (resisting a law enforcement officer with violence), and count nine (criminal mischief causing more than $ 200 damage).

Appellee entered into an open plea to the court. n1 The court accepted her plea, ordered a PSI and scheduled a sentencing hearing. Pursuant to her scoresheet, the lowest permissible prison sentence Appellee could receive was 98.4 months. The maximum sentence was seventy  [*2]  years.

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The facts supporting the plea showed that law enforcement was called out on a domestic disturbance. An argument had occurred between Appellee, her roommate and her roommate’s mother. The officers were told that Appellee attacked her roommate and her roommate’s mother and ordered her dog to attack them. Appellee then attacked the officers and ordered her dog to attack one of the officers. After she was handcuffed, she was placed in the vehicle where she kicked out the window. She also spit on EMS when they came to examine her.
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The sentencing hearing was held on January 16, 2007. The original victim, Aleasha McCance, Appellee’s roommate and life partner, testified that she did not want Appellee to be imprisoned and believed that alcohol played a role in Appellee’s actions on the night in question. She also felt that Appellee should seek counseling. She further testified that Appellee suffered from panic disorders, had taken Zoloft and Xanax in the past and needed to be put back on her medication. She also stated that Appellee had been to an alcohol rehabilitation center to address her problems but was never placed on any medication.

Another victim, Sandra McCance, Aleasha’s mother,  [*3]  testified that she also believed Appellee had alcohol and anger management problems. Sandra believed Appellee should be punished but did not think Appellee should be sent to prison.

Deputy Kenneth VanTassel, the law enforcement victim, testified that he was bitten by Appellee’s dog based on Appellee’s command. When he was asked what he thought an appropriate sanction should be, he identified medication, counseling and probation.

At the conclusion of the testimony, the State requested that the court impose the lowest permissible sentence of 98.4 months, asserting that anything less would be an illegal sentence.

Appellee was adjudicated guilty on all counts. The lower court sentenced Appellee to a downward departure sentence as follows:

As to count nine, I’m gonna give you 11 months 29 days in the Hernando County Jail.

As to counts two, three, four, five and eight, I’m gonna give you five years in the Department of Correction[s]. But I’m gonna suspend that based upon one year in the Hernando County Jail, two years house arrest, followed by two years probation.

As to counts six and seven, I’m gonna give you 15 years in the Department of Correction[s]. I’m gonna suspend that based upon one year  [*4]  in the Hernando County Jail, two years house arrest, followed by 13 years probation. That will be concurrent with counts two, three, four, five and eight; and concurrent with the eleven/twenty-nine in count nine.

As to count one, I’m gonna give you 30 years probation, consecutive to counts two, three, four, five, six, seven, eight as they go through. So you’re going to be on some time of supervised probation for 35 years. You understand that? …Fines and court costs in the amount of $ 2,385.50 were also imposed along with restitution.

To support the downward departure sentence, the trial judge announced that the need for psychological and substance abuse treatment outweighed the presumptive sentence and that the departure was necessary for payment of restitution. On the criminal punishment scoresheet, however, the judge wrote that he based his departure sentence on: 1) the capacity of Appellee to appreciate the criminal nature of her conduct or to conform that conduct to the requirements of law was substantially impaired; 2) Appellee requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, and that she is amenable  [*5]  to treatment, and 3) the offense was committed in an unsophisticated manner and was an isolated incident for which Appellee has shown remorse. See § 921.0026(2)(j), Fla. Stat. (2006). Although there is no record evidence to support the two orally stated departure grounds, the record supports the written ground for departure. n2

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We reject the State’s contention that the failure to orally pronounce this departure ground was fatal. See Fla. R. Crim. P. 3.704(d)(27)(A).
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The State is correct, however, that Appellee’s conviction for aggravated battery upon a law enforcement officer under section 784.07(2)(d), Florida Statutes, required the lower court to impose a five-year minimum mandatory sentence. Section 784.07(2)(d) provides in pertinent part:

d) In the case of aggravated battery, from a felony of the second degree to a felony of the first degree. Notwithstanding any other provision of law, any person convicted of aggravated battery of a law enforcement officer shall be sentenced to a minimum term of imprisonment of 5 years.(Emphasis added). On appeal, Appellant urges that, on resentencing, the trial court may consider a youthful offender sentence for Appellee and that such a sentence  [*6]  would not be controlled by this mandatory minimum. See, e.g., Darrow v. State, 789 So. 2d 552 (Fla. 5th DCA 2001). The State agrees that this is so. Accordingly, we vacate the sentence and remand for resentencing.

SENTENCE vacated; and REMANDED for resentencing.

THOMPSON, J., and SIMMONS, C., Associate Judge, concur.

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GARY M. DIRK, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-3770

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Brevard County, Tonya Rainwater, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

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

OPINION  

PER CURIAM.

This court has previously held that the United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) do not apply retroactively in those cases in which the convictions became final prior to the Apprendi decision, even though resentencing occurred post-Apprendi. See Rouse v. State, 965 So. 2d 201 (Fla. 5th DCA 2007); Langford v. State, 929 So. 2d 598 (Fla. 5th DCA 2006). As we did in Langford, we certify conflict with Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005).

AFFIRMED; CONFLICT CERTIFIED.

SAWAYA, TORPY and EVANDER, JJ., concur.

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FREDDIE JAMES SIPLEN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-1843

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Brevard County, Lisa Davidson, Judge.

COUNSEL:   James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

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

OPINION  

PER CURIAM.

Appellant challenges the modification of his probationary sentence, which occurred fourteen months after the probationary sentence was imposed. The court modified Appellant’s probation to include electronic monitoring, a mandatory condition of probation. Because the modification did not occur within sixty days after Appellant’s sentencing, the modification was erroneous. Fields v. State, 32 Fla. L. Weekly D2493 (Fla. 5th DCA Oct. 19, 2007); Kiriazes v. State, 798 So. 2d 789 (Fla. 5th DCA 2001); Accordingly, we reverse with the direction that the added condition of probation be stricken.

REVERSED and REMANDED.

THOMPSON, TORPY and LAWSON, JJ., concur.

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C.H., a child, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-2493

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

November 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 Leon County. Angela C. Dempsey, Judge.

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

Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.

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

OPINION  

PER CURIAM.

C.H. appeals an adjudication of delinquency entered against him for a charge of resisting an officer without violence. C.H. argues that there was insufficient evidence to support the trial court’s denial of a motion for judgment of acquittal and that the trial court erred in allowing the State to speak first and last in closing argument. We find that there was sufficient evidence to overcome a motion for judgment of acquittal and affirm on this issue. See I.M. v. State, 917 So. 2d 927, 929 (Fla. 1st DCA 2005). However, we hold that the trial court erred in directing the State to proceed first and last in closing argument, and reverse and remand for further proceedings.

Florida Rule of Juvenile Procedure 8.110 (d) states that “[a] child offering no testimony in his or her own behalf except his or her own shall be entitled to the concluding  [*2]  argument.” Section 918.19, Florida Statutes (2007), provides, however, that the prosecution may speak first and last during closing arguments in a criminal prosecution. In E.K. v. State, 963 So. 2d 309 (Fla. 1st DCA 2007), this court held that in juvenile delinquency cases Florida Rule of Juvenile Procedure 8.110 (d) governs. Further, “because the right to a final closing argument is a vested procedural right, the error cannot be considered harmless.” Id. at 309-310 (citing Wike v. State, 648 So. 2d 683, 686 (Fla. 1994); Freeman v. State, 846 So. 2d 552 (Fla. 4th DCA 2003)).

Here, C.H. offered only his own testimony as evidence at trial and, thus, was entitled to the concluding argument under rule 8.110(d). Accordingly, we affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part and REMANDED.

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

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ROBERT DICKS, Petitioner, v. STATE OF FLORIDA, Respondent.

CASE NO. 1D07-3525

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

November 30, 2007, Opinion FiledNOTICE:  

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

COUNSEL:    [*1]  Jeffrey A. Siegmeister, Lake City, for Petitioner.

Bill McCollum, Attorney General; Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Tallahassee, for Respondent.

JUDGES:   VAN NORTWICK, LEWIS, and THOMAS, JJ., CONCUR.

OPINION  

Petition for Writ of Prohibition — Original Jurisdiction.

PER CURIAM.

Having entered a plea and been sentenced on a charge of dealing in certain stolen property in Union County, Robert Franklin Dicks petitions this court for prohibition relief to preclude his continued prosecution in Columbia County on charges of grand theft of the same property. The state concedes that under Florida law, double jeopardy principles preclude a person from being convicted of both the theft of certain goods and dealing in the same stolen goods in connection with one scheme or course of conduct. See Hall v. State, 826 So. 2d 268 (Fla. 2002); Kilmartin v. State, 848 So. 2d 1222 (Fla. 1st DCA 2003). The state also correctly acknowledges that because both the Union County and Columbia County charges relate to the same property, the use of “and/or” language to describe the property in the Union County information to which Dicks entered a plea does not operate to permit the continued prosecution  [*2]  of the theft charges relating to the same property in Columbia County. See Corvo v. State, 916 So. 2d 44 (Fla. 3d DCA 2005).

Accordingly, the petition for writ of prohibition is GRANTED.

VAN NORTWICK, LEWIS, and THOMAS, JJ., CONCUR.

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