Florida Criminal Law Opinions

DESMOND HARRIS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-1123

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Lake County, T. Michael Johnson, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

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

OPINION BY:   THOMPSON

OPINION  

THOMPSON, J.

Desmond Harris appeals his revocation of probation and sentence to the Department of Corrections. The evidence presented to the court was a lab test that indicated Harris tested positive for THC. n1 When the State proffered the lab test to the trial court, the defense attorney objected, citing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The attorney argued that the lab report was hearsay and testimonial in nature and its admission violated Harris’ Sixth Amendment right of confrontation. We affirm.

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Delta-9-Tetrahydrocannabinol, THC, is the psychoactive ingredient in marijuana.
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In Wilcher v. State, 946 So. 2d 114 (Fla. 5th DCA 2007), and Russell v. State, 920 So. 2d 683 (Fla. 5th DCA), rev. granted, 926 So. 2d 1270 (Fla. 2006), we held that Crawford does not apply to probation revocation proceedings. Harris concedes  [*2]  that we have previously addressed the issue and requests that we certify the question to the Florida Supreme Court. We grant the request and certify the following question to the Florida Supreme Court as one of great public importance:

DOES THE “TESTIMONIAL HEARSAY” RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), APPLY IN COMMUNITY CONTROL AND/OR PROBATION REVOCATION PROCEEDINGS?

AFFIRMED; QUESTION CERTIFIED.

TORPY and LAWSON, JJ., concur.f

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WAYNE A. PULA, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-2739

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

3.850. Appeal from the Circuit Court for Volusia County, James R. Clayton, Judge.
Pula v. State, 652 So. 2d 981, 1995 Fla. App. LEXIS 3520 (Fla. Dist. Ct. App. 5th Dist., 1995)

COUNSEL:   Wayne A. Pula, Carrabelle, Pro se.

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

JUDGES:   PALMER, C.J., TORPY and EVANDER, JJ., concur.

OPINION  

PER CURIAM.

Pula appeals the denial of his most recent motion for post-conviction relief. Finding no merit in his argument, we affirm. In so doing, we take the additional step of barring Pula from filing any further pro se pleadings in this case.

Pula was tried and convicted of second degree murder eighteen years ago. His conviction was affirmed in Pula v. State, 578 So. 2d 1115 (Fla. 5th DCA 1991). Since then Pula has filed multiple pro se motions for post-conviction relief, all of which have been denied by the trial court and this court. As a result, this court issued a show cause order pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999). Pula’s response was meritless.

AFFIRMED; Future Pro Se Filings PROHIBITED.

PALMER, C.J., TORPY and EVANDER, 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 Filed

NOTICE:  

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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DWAYNE K. DAVIS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-2568

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

3.800. Appeal from the Circuit Court for Seminole County, Marlene M. Alva, Judge.

COUNSEL:   Dwayne K. Davis, Carrabelle, Pro se.

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

JUDGES:   TORPY, J. GRIFFIN and ORFINGER, JJ., concur.

OPINION BY:   TORPY

OPINION  

TORPY, J.

In this postconviction proceeding, Appellant challenges the lower court’s order summarily denying his motion for additional credit for time served in jail prior to his sentencing. The trial court denied Appellant’s motion finding that he had waived entitlement to additional jail credit. The trial court attached the written plea agreement in support of this finding. The written plea agreement states “[c]redit for time served as of 7/31/2006 is 1,531 days.” We do not view this statement in the plea agreement as conclusive evidence that Appellant knowingly and voluntarily waived jail credit to which he would otherwise be legally entitled. See Murphy v. State, 930 So. 2d 794, 796 (Fla. 1st DCA 2006) (finding waiver of jail credit must be clear and knowing); Silverstein v. State, 654 So. 2d 1040, 1041 (Fla. 4th DCA 1995) (holding waiver of jail time credit must be specific, voluntary, and clearly  [*2]  shown on the record).

In its response, the State argues that Reed v. State, 810 So. 2d 1025 (Fla. 2d DCA 2002), supports the trial court’s conclusion. It asserts that Reed stands for the proposition that a stipulation to a specific amount of jail credit contained within a written plea agreement is tantamount to a waiver of any amount above the stipulated sum. We disagree. Reed affirmed the trial court because the motion for jail credit was not sufficient in that it failed to allege the entitlement to the credit was shown in court records. It did so without prejudice to the filing of a legally sufficient motion. In dicta the Second District Court stated:

We note, however, that had Reed’s motion been facially sufficient, we would have been compelled to reverse the trial court’s order because the attachments to the order do not refute Reed’s claim. Without an attached signed plea agreement or the transcript of the plea colloquy showing that Reed had stipulated to the jail credit, the trial court’s order and its attachments are insufficient to refute Reed’s claim to additional jail credit.

Although we do not decide the issue at this time, we also note that when a claim of this nature is raised,  [*3]  the court records must establish the defendant’s clear intent to waive a portion of his or her accrued jail time before we could affirm a defendant’s stipulation to credit for less jail time than was actually served. It seems to this court that a defendant should not lose credit for jail time actually served due to a mistake by the defendant, defense counsel, or the State.Reed, 810 So. 2d at 1026-27 (emphasis supplied).

We do not interpret this dicta to mean that a waiver can be shown merely by a defendant’s stipulation to a certain amount of credit, absent evidence that the defendant knew of his entitlement to additional jail credit and voluntarily relinquished that right. In fact, the emphasized portion of the quotation is to the contrary.

Therefore, we reverse the order and remand this cause to the trial court with instructions that it either grant the motion or attach portions of the record that conclusively refute Appellant’s claim.

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.

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