Florida Criminal Law Opinions

JODY BRUMIT, Petitioner, v. STATE OF FLORIDA, Respondent.

No. 4D06-4999

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 31, 2007, Decided

NOTICE:

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: [*1]

Petition for writ of habeas corpus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman and Ana I. Gardiner, Judges; L.T. Case No. 00-12574 CF10A.

COUNSEL: Jason T. Forman of Law Offices of Jason T. Foreman, P.A., Fort Lauderdale, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for respondent.

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

OPINION

PER CURIAM.

Jody Brumit (Defendant) appealed an order summarily denying her motion to vacate sentence, filed pursuant to rule 3.800(a) and/or rule 3.850, Florida Rules of Criminal Procedure, and the order denying her motion for rehearing. Her motion actually challenged her conviction, rather than her sentence. Although she was out of time to appeal her conviction or to file a timely rule 3.850 motion, her ground was that she should be treated the same as her similarly situated co-defendant. This court redesignated the case as a petition for writ of habeas corpus, treated her initial brief as the petition, and issued an order to show cause. We now grant the petition.

Defendant was charged, along with co-defendant Ronald Festa (Festa), with one count [*2] of aggravated child abuse in violation of section 827.03(2)(b), alleged to have occurred on June 18, 2000. At their jury trial, neither side asked to have the jury instructed on any lesser included offenses, and the jury was instructed to find the defendants either guilty of aggravated child abuse as charged, or not guilty. Both were found guilty as charged.

This court reversed Defendant’s direct appeal, finding the trial court erred in denying her motion for judgment of acquittal because there was insufficient evidence as a matter of law to support her conviction for aggravated child abuse. It directed the trial court on remand to enter judgment for child abuse under section 827.03(1). Brumit v. State, 843 So.2d 978 (Fla. 4th DCA 2003). On June 13, 2003, the trial court vacated the prior judgment and sentence, and resentenced Defendant to four years of probation for the offense of child abuse. No direct appeal was taken from the new conviction and sentence, and Defendant’s probation was terminated by order dated December 14, 2005.

Festa raised the same issue on direct appeal, as well as whether the trial court’s error–in precluding him from discovering the victim’s medical and mental [*3] health records and introducing testimony about the victim’s propensity for violence–prevented him from confronting the victim and presenting his only defense. This court found Festa’s appeal meritorious on both points. It reversed and remanded for a new trial because of the discovery error, but it held that he could be retried for no more than child abuse because, as this court already had found in Defendant’s appeal, the evidence was insufficient for the charge of aggravated child abuse. Festa v. State, 901 So.2d 1026 (Fla. 4th DCA 2005) (Festa I).

On remand, the state charged Festa with child abuse and he moved to dismiss, explaining that the permissive lesser offense of child abuse was not submitted to the jury at his trial, because neither he nor the state requested instruction on a lesser included offense; he had elected the “all or nothing” strategy in hopes of an acquittal. In light of the fact that the jury was not instructed on the lesser included offense of child abuse, he argued that the state was now precluded from trying him for that related offense pursuant to Florida Rule of Criminal Procedure 3.151. The trial court denied the motion to dismiss, Festa filed a petition [*4] for writ of prohibition in this court, and this court granted the petition, holding that, because the jury was not instructed on the lesser included offense of simple child abuse at the original trial, retrying him for simple child abuse would violate his right to be protected from double jeopardy. Festa v. State, 927 So.2d 1049 (Fla. 4th DCA 2006) (Festa II).

In the opinion granting the petition, this court addressed Defendant’s case in a footnote that reads as follows:

On the co-defendant’s appeal, another panel held that the evidence was not sufficient to support the charge and reversed. Brumit v. State, 843 So.2d 978 (Fla. 4th DCA 2003). Unlike the present case, however, that panel directed the trial court to enter judgment on the lesser included offense of child abuse, relying on a statute. See § 924.34, Fla. Stat. (2005) (“When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser [*5] degree of the offense or for the lesser included offense.”). In Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), we held under similar circumstances that section 924.34 is no longer valid when a factual issue critical to the lesser included offense was not itself submitted to the jury at trial. Because we have no way of knowing from the record in this case whether the co-defendant also waived all instruction on lesser included offenses, we express no opinion as to whether, because of our disposition in this case, the outcome in the co-defendant’s case should be changed.Id. at 1052 n.5 (emphasis added).

Based on the emphasized language above, Defendant sought collateral relief in her own case, and this case originated as an appeal from the trial court’s denial of that relief. She argues that the “manifest injustice” doctrine should overcome the law of the case presented by this court’s prior opinion in her direct appeal, Zolache v. State, 687 So.2d 298 (Fla. 4th DCA 1997); Line v. State, 722 So.2d 853 (Fla. 4th DCA 1998); Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), aff’d, 967 So.2d 835 (Fla. 2007); Young v. State, 939 So.2d 263 (Fla. 4th DCA 2006), and she asserts entitlement [*6] to the same relief provided to her co-defendant, Festa, Laster v. State, 739 So.2d 150 (Fla. 1st DCA 1999) (holding that defendant was entitled to same relief on double jeopardy claim as that obtained by co-defendant who was jointly tried with defendant, though before a different jury).

Habeas corpus filed in the appellate court is the proper method for seeking relief when co-defendants’ appeals on the same issue are resolved differently. See, e.g., Raulerson v. State, 724 So.2d 641 (Fla. 4th DCA 1999); Romero v. State, 637 So.2d 7 (Fla. 4th DCA 1994); Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), disagreed with on other grounds by Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), rev. granted, 956 So.2d 455 (Fla. 2007).

The state concedes that the manifest injustice doctrine may apply to Defendant, who is similarly situated to Festa; its only argument to the contrary arises in the event the supreme court were to uphold the application of section 924.34, Florida Statutes.

Section 924.34 provides as follows:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree [*7] of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

While this case was pending, the supreme court issued an opinion affirming this court’s opinion in Sigler. Sigler arose on direct appeal from a conviction for a lesser offense, entered in accordance with this court’s mandate from a prior appeal. There, this court considered, as a matter of grace, defendant’s argument that his conviction for third-degree felony murder as a lesser-included offense of second-degree murder was illegal, despite the contention that this court’s prior conclusion that the conviction was proper was the law of the case. The allegation of an illegal conviction was an exceptional circumstance warranting relaxation of the law of the case doctrine. 881 So.2d at 17. In State v. Sigler, 967 So.2d 835 (Fla. 2007), the supreme court affirmed, holding that section 924.34, Florida Statutes, is unconstitutional to the extent it can be read to allow the appellate court to direct entry of judgment for a lesser included offense if not [*8] all the elements of the lesser have been found by a jury beyond a reasonable doubt.

That is the case here. Child abuse n1 is a permissive, category 2, lesser included offense of aggravated child abuse. n2 Festa II, 927 So.2d at 1050 (citing Fla. Std. Jury Instr. (Crim.) 16.1). By definition, a permissive lesser included offense contains at least one statutory element that is not included in the greater offense. Carrin v. State, 875 So.2d 719, 722 (Fla. 1st DCA 2004) (citing Nurse v. State, 658 So.2d 1074, 1077 (Fla. 3d DCA 1995)). The previous jury determination that Defendant was guilty of aggravated child abuse, i.e., that she “maliciously punished” the child, cannot be deemed to include a jury finding that she was guilty of every element of the permissive lesser included offense of child abuse. State v. Sigler, 967 So.2d at 839 (citing Sigler v. State, 881 So.2d 14, 20 (Fla. 4th DCA 2004) (citing 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))).

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

The jury instruction for child abuse under section 827.03(1), Florida Statutes (1999), is as follows:

To prove the crime of Child Abuse, the State must prove the following two elements beyond a reasonable [*9] doubt:

1. (Defendant)

Give as applicable

a. intentionally inflicted physical or mental injury upon (victim)

b. committed an intentional act that could reasonably be expected to result in physical or mental injury to (victim)

c. actively encouraged another person to commit an act that resulted in or could reasonably have been expected to result in physical or mental injury to (victim).

2. (Victim) was under the age of 18 years.Fla. Std. Jury Instr. (Crim.) 16.3.2

The jury instruction for aggravated child abuse under section 827.03(2), Florida Statutes (1999), is as follows:

To prove the crime of aggravated child abuse, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant)

Give as applicable

a. committed aggravated battery upon (victim)

b. willfully tortured (victim)

c. maliciously punished (victim)

d. willfully and unlawfully caged (victim)

e. knowingly or willfully committed child abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement.

2. (Victim) was under the age of 18 years.Fla. Std. Jury Instr. (Crim.) 16.1.

In the instant case, the jury was asked to find Defendant (and Festa) guilty of aggravated child [*10] abuse only if it found they maliciously punished the child.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Accordingly, we grant the petition and direct the trial court to vacate Defendant’s conviction.

GUNTHER, POLEN and GROSS, JJ., concur.

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ZERRON MCDANIEL, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-3942

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 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 Madison County. Frederick L. Koberlein, Judge.

COUNSEL: Nancy Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public Defender, and Joel Arnold, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

JUDGES: KAHN, PADOVANO, and HAWKES, JJ., CONCUR.

OPINION

PER CURIAM.

The defendant appeals his convictions for possession of cocaine, possession of a concealed weapon and possession of less than twenty grams of marijuana. We find no error except that the order placing the defendant on probation incorrectly states that he entered a plea of guilty to the charges, when in fact he was convicted by a jury. This error was preserved for review by a timely post-sentencing motion under rule 3.800(b) and brought to this court’s attention by appellate counsel in a brief filed under the procedure in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We remand the case for the entry of a new probation order reflecting that the defendant was convicted by a jury. In all other respects we affirm.

KAHN, PADOVANO, and HAWKES, JJ., CONCUR.

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BONNIE RENEE HUMPERT, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-2196

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 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: Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

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

JUDGES: ALLEN, KAHN, and DAVIS, JJ., CONCUR.

OPINION

PER CURIAM.

The appellant challenges an order by which the trial court denied her motion to suppress. The appellant was convicted pursuant to a nolo contendere plea of possession of a controlled substance (cocaine), possession of less than 20 grams of marijuana, and possession of drug paraphernalia. When the deputy ordered the appellant out of her legally parked car, the consensual encounter became an investigatory stop. See Popple v. State, 626 So. 2d 185 (Fla. 1993). Based on the totality of the circumstances, there was no “well-founded, articulable suspicion of criminal activity” justifying an investigatory stop. See id. at 187; State v. Taylor, 826 So. 2d 399 (Fla. 3d DCA 2002); Miranda v. State, 816 So. 2d 132 (Fla. 4th DCA 2002). Thus, the trial court erred in denying the appellant’s motion to suppress the dispositive [*2] evidence which was seized as a result of the illegal search. See Dees v. State, 564 So. 2d 1166, 1169 (Fla. 1st DCA 1990). Accordingly, the appellant’s convictions are reversed and this case is remanded with directions that the appellant be discharged.

ALLEN, KAHN, and DAVIS, JJ., CONCUR.

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RICHARD LEE HUNTER, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-1637

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 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 Escambia County. Linda Nobles, Judge.

COUNSEL: Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appellee.

JUDGES: ALLEN, KAHN, and DAVIS, JJ., CONCUR.

OPINION

PER CURIAM.

Appellant, Richard Lee Hunter, challenges his conviction for first-degree murder and his sentence of life imprisonment. Appellant raises several claims of trial court error and argues that both individually and cumulatively these errors deprived him of a fair trial. Because we agree that three of Appellant’s claims have merit and that the trial court’s errors cannot be deemed harmless, we reverse. We affirm all other issues raised by Appellant without further discussion.

Appellant first argues that the trial court erred by denying his motion to suppress a taped statement he made to the police the day after his arrest. The evidence adduced at the suppression hearing, when viewed in a light most favorable to the State, revealed that Appellant informed law enforcement upon his arrest that he wanted an attorney. However, while Appellant was waiting [*2] to be arraigned, several correctional officers asked him to speak to the investigators in his case. Appellant repeatedly refused this request. At 4:30 a.m. the following day, another correctional officer asked him to speak to the investigators about his case, and he decided to speak to Officer Orr. Officer Orr’s testimony established that he received a call from a correctional officer around 5:00 a.m. that morning informing him that Appellant wanted to speak to him. Officer Orr confirmed that it was Appellant’s decision to speak with him before he started the interrogation. In his motion to suppress, Appellant argued that his statement should be suppressed because the evidence showed that he did not initiate contact with Officer Orr. The State argued that the court had to make a credibility determination between Appellant and Officer Orr. The trial court erroneously denied this motion.

Because Appellant invoked his right to counsel upon being arrested, the State had to establish that Appellant was the person that initiated contact with Officer Orr in order for his statement to be admissible at trial. Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983). The waiver of the right to counsel [*3] cannot be established by showing that Appellant responded to police-initiated contact. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). In this case, the State never rebutted Appellant’s testimony that he decided to speak to Officer Orr after being contacted by a correctional officer. Moreover, Officer Orr merely testified that he confirmed that it was Appellant’s decision to speak to him. This testimony does not address the issue of who initiated the contact that led Appellant to decide to speak to the officer. Thus, the trial court erred in denying Appellant’s motion to suppress.

Next, Appellant argues that the trial court erred in denying his motion for mistrial after an officer commented on his right to remain silent. During direct examination, Officer Orr testified that Appellant wanted an attorney after he was arrested. This comment is fairly susceptible of being interpreted by the jury as a comment on Appellant’s right to remain silent. State v. DiGuilio, 491 So. 2d 1129, 1131 (Fla. 1986). Comments on a defendant’s right to remain silent are high-risk errors because there is a substantial likelihood that they will vitiate the defendant’s right to a fair trial. Grier v. State, 934 So. 2d 653, 655 (Fla. 4th DCA 2006). [*4] The State argued that this comment was harmless error in light of Appellant’s statements that were admitted at trial, including Appellant’s own testimony. However, a defendant’s decision to testify at trial is separate from his decision to remain silent at the time of arrest, and a decision to testify at trial does not waive a defendant’s right to remain silent at the time of arrest. Robbins v. State, 891 So. 2d 1102, 1106 (Fla. 5th DCA 2004); Sharp v. State, 605 So. 2d 146, 148 (Fla. 1st DCA 1992). Thus, the trial court erred by denying Appellant’s motion for mistrial.

Finally, Appellant argues that the trial court erred in denying his motion for mistrial after the prosecutor questioned him about testimony he gave in a previous murder trial. In this case, Appellant was being tried for first-degree murder where the victim’s body was never recovered and decided to testify on his own behalf. During cross-examination, the prosecutor asked Appellant if he had previously testified in a trial twenty years ago where a man was charged with killing someone whose body was never found. The trial court sustained defense counsel’s objection to this question, denied Appellant’s motion for mistrial, [*5] and directed the jury to disregard the question. This question reflected poorly on Appellant’s character because it implied that he was directly involved in a similar crime. Appellant’s character and credibility were the main focus of this trial; thus, the trial court should have granted the motion for mistrial.

In light of the cumulative effect of these errors, we cannot say that they were harmless. “The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” DiGuilio, 491 So. 2d at 1135. “Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id. at 1138. In this case, the body of the victim was never located, and there was no physical evidence that a crime occurred. The case centered on the credibility of the trial witnesses, including Appellant. [*6] It is possible that all of the above errors had a negative effect on Appellant’s credibility with the jury. Because it cannot be said beyond a reasonable doubt that the combined effect of the above errors did not contribute to the jury’s verdict, we reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

ALLEN, KAHN, and DAVIS, JJ., CONCUR.

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LAYURA SELLERS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-4352

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 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 Jackson County. William L. Wright, Judge.

COUNSEL: Nancy A. Daniels, Public Defender, Tallahassee; and Gail E. Anderson, Special Assistant Public Defender, Greensboro, for Appellant.

Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

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

OPINION BY: THOMAS

OPINION

THOMAS, J.

Appellant contests her convictions for aggravated manslaughter, DUI manslaughter, vehicular homicide and child neglect, arguing that the trial court erred in admitting, over objection, blood test results that demonstrated her impairment. She also alleges that the admission of a beer can found at the scene of the automobile accident was unfairly prejudicial and should not have been allowed. After careful consideration, we disagree with Appellant’s arguments and affirm her sentence of 30 years’ imprisonment.

The United States Supreme Court has held that the Sixth Amendment right to confrontation allows the admission of “testimonial hearsay” only if the witness is unavailable and the accused has had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). When hearsay [*2] is non-testimonial, a defendant’s Sixth Amendment right to confront witnesses is not an issue. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224 (2006).

Reports that are produced in furtherance of a police investigation constitute testimonial hearsay. See Martin v. State, 936 So. 2d 1190, 1192 (Fla. 1st DCA 2006) (holding that an FDLE report was inadmissible testimonial hearsay because “[t]he testing memorialized in the report was occasioned solely by the arrest of appellant and was performed by a state law enforcement agency, and the report was offered by the State in furtherance of a criminal prosecution.”); Johnson v. State, 929 So. 2d 4 (Fla. 2d DCA 2005) (holding an FDLE-ordered drug test was testimonial); Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2006) (holding a breath test affidavit was testimonial because it was ordered by police for use at a later criminal trial); Shiver v. State, 900 So. 2d 615, 618 (Fla. 1st DCA 2005) (holding a breath test affidavit was testimonial because it “was made under circumstances which would lead an objective witness to reasonably believe the statements would be available for trial.”). However, drug or alcohol tests performed by a hospital in the [*3] usual course of business are admissible as business records. See Martin, 936 So. 2d at 1192 (citing Rivera v. State, 917 So. 2d 210, 211 (Fla. 5th DCA 2005)); Pflieger v. State, 952 So. 2d 1251, 1253-1254 (Fla. 4th DCA 2007) (finding annual inspection reports of breathalyzer machines were non-testimonial hearsay because these reports were not specifically prepared for trial; also specifically mentions that a “hospital record of a blood test” is for “accurate medical treatment” and is non-testimonial).

Here, we find that the blood test record admitted into evidence is not testimonial; therefore, there was no violation of Appellant’s right to confrontation. The blood test in question was performed only because Appellant’s emergency room doctor required the test in order to properly diagnose and treat Appellant’s injuries. It was not ordered by law enforcement and was not performed in the furtherance of a criminal prosecution. Thus, this case is factually distinct from Sobota v. State, 933 So. 2d 1277, 1278 (Fla. 2d DCA 2006) (finding the results of a blood test were testimonial hearsay because a police officer ordered the testing). Accordingly, we agree with the trial court that a Crawford [*4] violation did not take place.

As to Appellant’s claim that the beer can found at the scene of the accident should not have been admitted into evidence, we find no error. Further, even if there was error, it was certainly harmless. The benchmark of the harmless error test is “whether there is a reasonable possibility that the error affected the verdict.” Knowles v. State, 848 So. 2d 1055, 1059 (Fla. 2003) (quoting State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986)). The jury was presented with an abundance of evidence suggesting that Appellant was intoxicated on the evening of the accident, including the results of two separate blood tests, witness testimony, the investigator’s conclusions that intoxication was the cause of the accident, and Appellant’s own admission that she had consumed at least one beer and some cold medicine on the day of the accident. Accordingly, no reasonable possibility exists that the presentation of the beer can affected the verdict.

Appellant’s judgment is hereby AFFIRMED.

VAN NORTWICK and LEWIS, JJ., CONCUR.

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HENRY L. BENNETT, JR., Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-4441

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 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 Escambia County. Nickolas P. Geeker, Judge.

COUNSEL: Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

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

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

OPINION BY: THOMAS

OPINION

THOMAS, J.

Appellant appeals his convictions for attempted sexual battery, sexual battery, and lewd and lascivious molestation, asserting that the trial court reversibly erred in finding the child victim, N.D.D., competent to testify and that it erred in imposing sentence based on double jeopardy violations and improper assessment of victim injury points. We affirm the trial court’s rulings in all respects.

We begin by summarizing the relevant facts, emphasizing the competency proceedings conducted here which included an examination of N.D.D., the defense expert’s testimony regarding her competency, and the trial court’s ruling finding her competent to testify. We also review the relevant trial testimony and the State’s closing argument. We first address Appellant’s argument challenging the trial court’s ruling on competency and then his two arguments [*2] challenging his sentence.

Facts

Appellant was charged with one count of sexual battery by vaginal penetration or union with Appellant’s penis between June 1, 2004 and June 18, 2005; one count of sexual battery by digital penetration; and two counts of lewd and lascivious molestation based on unlawful and intentional touching of N.D.D.’s breasts, genitals, or buttocks.

Competency Examination of N.D.D.

On the morning of trial, the court conducted a competency examination to determine N.D.D.’s competence to testify. N.D.D. testified that she was 12 years old and identified the middle school she attended, her favorite subject and her favorite books. She testified about what she did yesterday and told the court what she received as gifts last Christmas. She said she knew the importance of telling the truth; that telling the truth is “good” while telling a lie is “bad.” She correctly answered a question regarding color and promised to “tell only what really happened.”

The trial court correctly concluded that it needed to determine whether N.D.D. understood her duty to tell the truth. Appellant’s counsel attempted to ask N.D.D. several questions regarding the importance of telling the truth in [*3] court and what “might happen” if she lied in court versus lying somewhere else, such as at home. N.D.D. seemed confused by counsel’s questions, so the court attempted to simplify them, asking, “What happens if you tell a lie, in general?” N.D.D. said, “I don’t know. You tell the truth.” Additionally, N.D.D. could not answer counsel’s question regarding what would happen if she told her mother a lie and her mother found out.

The court later asked N.D.D., “Would [you] ever tell your teacher a lie?” N.D.D. answered no and promised the court she would tell the truth. The court inquired about whether N.D.D. knew why she was in court; after replying no, the court asked, “Did some things happen to you that these ladies want to ask you about some things that happened to you a while back?” When N.D.D. answered yes, the court asked if she was going to tell the truth or a lie when she testified; N.D.D. answered, “Truth.”

The court further inquired whether anyone told her to “say something that was a lie?” She answered, “No.” The court asked, “If you tell us what happened, do you understand that you need to tell us nothing but the truth?” She answered, “Yes.”

Appellant’s counsel asked N.D.D. if anyone [*4] told her what to say, and she replied that she was told, “Tell the truth.” When asked if anyone told her “not to say something happened when it really happened,” she answered, “No.”

The court asked N.D.D. if “anyone [told] her to say something that was not true? Did anyone tell you to say something that was a lie?” She answered no, but also answered “good” when asked if “someone told you [to say something that was not true], would that be a good thing or a bad thing?”

Dr. James Larson, an expert witness who reviewed N.D.D.’s pretrial deposition and watched her in court, testified that N.D.D. does not have a mental age of 12 years. In his opinion, she has “significant expressive and receptive language impairments” and some of her answers were irrelevant, incorrect, or not responsive. Dr. Larson noted that she could not describe the difference between telling the truth in court or at home and gave inconsistent answers regarding the number of sex acts Appellant allegedly committed. In noting that N.D.D. answered yes when the court asked, “Do you mind if I ask you some questions,” Dr. Larson concluded that she felt pressure to cooperate and obtain approval.

Dr. Larson admitted that he had [*5] heard adults incorrectly answer a “do you mind” question. He also acknowledged that N.D.D. may have thought the question regarding the number of sex acts referred to the number of acts on a particular day, not the total number of acts. Dr. Larson noted that many child witnesses have deficiencies, recognizing that N.D.D. did better in court than during her deposition, and agreed that a person could be mentally impaired or deficient and still be competent to testify.

The trial court ruled N.D.D. was competent to testify, finding that she understood her responsibility to tell the truth; the difference between a truth and a lie; why she was testifying; and that she had the ability to recollect and understand facts about which she would testify. The court noted that it was satisfied that N.D.D. could communicate and respond to properly framed questions and that many of Appellant’s arguments related to the weight and credibility her testimony should receive, rather than to its admissibility.

Trial Testimony

At trial, a family friend testified that she picked up N.D.D. from Appellant’s home on June 17, 2005, to go to church. N.D.D. looked shocked to see her, was wearing revealing clothes, her [*6] hair was scattered, and she had a white substance around her mouth. When they arrived at church, N.D.D.’s cousin told the friend to take N.D.D. home. The cousin later took her to the hospital for an examination and overheard N.D.D. say Appellant touched her and “put his thing in her,” and she did not like it.

Appellant’s cousin, N.D.D.’s current guardian, testified that N.D.D. has a learning disability and speaks slower than average.

N.D.D. testified that she was born May 23, 1994, and lives with her cousin. She testified that she went to Appellant’s home after school and that while on his bed, Appellant frequently rubbed her vagina and breasts with his fingers, kissed her breasts, and touched her vagina with his penis. She testified that Appellant told her he would make a woman out of her, but not to tell anyone.

The Child Protection Team case coordinator testified that N.D.D. said Appellant touched her breasts and vaginal areas with his hand and penis.

Patrick Murray, M.D., a pediatrician, examined N.D.D., finding secretions on her pubic hair, but no evidence of injury or tissue trauma. N.D.D. did not report any sexual penetration to him, but Dr. Murray testified that she might not be [*7] able to describe the difference between “on” and “in” due to her mild developmental delays.

Detective Brian Jones testified that he went to the hospital on June 18, 2005, to investigate N.D.D’s allegations. He later interviewed Appellant at the police station where Appellant voluntarily gave a statement.

A second audiotaped interview conducted on June 22, 2006, was played for the jury. During this interview, Appellant said N.D.D. persuaded him to touch her vagina. Appellant denied digitally penetrating her on June 17, but admitted that he had done this once or twice before and admitted touching her vagina four times over the previous year. He regretted it happened and admitted he knew better.

At trial, Appellant testified that N.D.D. visited him on June 17, 2005. Her hair was unkempt when she arrived. She ate a piece of cake and asked Appellant to touch her, but he would not, saying she was too young. Appellant denied telling N.D.D. that he wanted “to make a woman out of her,” stating that he told her he wanted to “make a lady out of her.”

Appellant testified that he thought that by admitting to touching N.D.D.’s genitals during the audiotaped interview he was admitting to simple battery [*8] and would therefore be able to bond himself out that day. He denied ever touching N.D.D.’s breasts or having sexual intercourse with her. He testified that he suffered from sexual dysfunction, which his physician confirmed at trial.

State’s Closing Argument, Jury Verdict and Sentence

In its closing argument, the State argued that sexual battery, as charged in Count I, could be proven with evidence showing any contact or union between Appellant’s penis and N.D.D’s vagina, and that penetration was not required. The State acknowledged that sexual battery by digital penetration, as charged in Count II, must be proven by penetration.

The jury found Appellant guilty of the lesser-included offense of attempted sexual battery in Count I; guilty of sexual battery, as charged in Count II; and guilty of lewd and lascivious molestation, as charged in Counts III and IV. The trial court sentenced Appellant to 225 months’ imprisonment on Count I; life imprisonment on Count II; and five years’ imprisonment on Counts III and IV.

Appellant filed a motion pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure, arguing that his dual convictions and sentences for Counts II and III violate double [*9] jeopardy, as they were based on the same act. Appellant also argued that his conviction on Count IV was based on the same episode as his conviction on Count I, thus it violates double jeopardy. Appellant further argued that he should be resentenced on Count I, as the trial court improperly assessed victim injury points for sexual contact when the jury made no specific findings of sexual contact, and a conviction for attempted sexual battery does not necessarily require sexual contact. The trial court denied Appellant’s motion.

Analysis

I. Competency to Testify

We review the trial court’s ruling finding N.D.D. competent to testify under an abuse of discretion standard. Griffin v. State, 526 So. 2d 752, 753 (Fla. 1st DCA 1988).

The competence of a child witness is based on intelligence, not age, and whether the child possesses a sense of the obligation to tell the truth. Lloyd v. State, 524 So. 2d 396, 400 (Fla. 1988). When ruling on a child’s competency to testify, “the trial court should consider (1) whether the child is capable of observing and recollecting facts, (2) whether the child is capable of narrating those facts to the court or to a jury, and (3) whether the child has a moral [*10] sense of the obligation to tell the truth.” Griffin, 526 So. 2d at 753 (citations omitted). Factors to consider in reviewing the trial court’s decision on a child’s competency to testify include the entire context of her testimony and whether her testimony is corroborated by other evidence. See Lloyd, 524 So. 2d at 400 (noting that most of the critical facts supplied by the child’s testimony were either unrefuted or corroborated by other witnesses).

Appellant argues, citing Black v. State, 864 So. 2d 464 (Fla. 1st DCA 2003), that the trial court erred by finding N.D.D. competent to testify because the trial court’s cursory questions inadequately demonstrated her competency. Additionally, Appellant analogizes the competency evaluation conducted here to those conducted in Griffin and Seccia v. State, 689 So. 2d 354 (Fla. 1st DCA 1997). In Black, Griffin and Seccia, this court reversed the appellants’ convictions, finding that the trial courts had erred by permitting the child witnesses to testify.

In Black, the four-year-old witness said it was “good” to tell a lie. 864 So. 2d at 466. Further, the trial court’s cursory questions did not demonstrate that the child could recollect facts, [*11] narrate those facts, or that she had the “moral sense of the obligation to tell the truth.” Id. at 465-66.

In Seccia, the six-year-old child witness could not remember what she received for Christmas less than two months earlier. 689 So. 2d at 355-56. She could not state where she went to church, even though she admitted often attending. Id. at 355. She did not know why it was important to tell the truth. Id. at 356.

In Griffin, the trial court did not examine the child witness, who underwent a de minimis competency evaluation before a deposition. 526 So. 2d at 755. Most significantly, the child “was not unequivocally capable of separating fact from fantasy.” Id. In response to the question about what would happen if she lied to her mother, the child said she would be sent to her room, but not punished. Id. Further, no evidence corroborated her testimony. Id. This court explained that corroborating evidence, while not a prerequisite to a child witness’s testimony, was especially important here, as it was not clear the child could accurately recite the facts. Id. at 755-56.

Unlike the situation in Black, the court here extensively questioned N.D.D. N.D.D. demonstrated her intelligence, [*12] accurately recounting facts about her life, including Christmas presents received and school, unlike the child in Seccia. Significant corroboration of N.D.D.’s testimony exists: most importantly, Appellant’s admission that he touched N.D.D.’s vagina; the family friend’s testimony regarding N.D.D.’s physical condition when she picked N.D.D. up from Appellant’s home; the Child Protection Team case coordinator’s testimony; and Appellant’s cousin’s testimony. This corroboration significantly distinguishes the situation here from that in Griffin. Additionally, N.D.D. was capable of separating fact from fantasy and knew it was bad to tell a lie, unlike the child witness in Griffin.

The situation here is more analogous to the situation in Baker v. State, 674 So. 2d 199 (Fla. 4th DCA 1996), where the Fourth District affirmed the appellant’s conviction, finding the child witness competent. The Fourth District reasoned that the child knew her age, where she went to school and church, and could identify the color of clothing. Id. at 200. She possessed a sense of obligation to tell the truth, as she knew it was wrong to lie and that people get into trouble for lying. Id. Additionally, she agreed [*13] to answer questions as truthfully as possible. Id. at 200-01.

Similarly, N.D.D. met the requirements for testifying in court. She was capable of observing and recollecting facts and narrating those facts to the court, as she testified about school, her Christmas gifts, her birthday and age. Further, as the trial court recognized, she possessed a moral sense of the obligation to tell the truth because she knew it was wrong to lie, thought something bad would happen if she lied, and promised not to lie. Therefore, we find no abuse of discretion in the trial court’s ruling finding N.D.D. competent to testify.

II. Sentencing Issues

A. Double Jeopardy

Appellant argues that the trial court erred in imposing sentence because his dual convictions and sentences for Counts II and III and his convictions and sentences on Counts I and IV were each based on the same episode, thus violating double jeopardy. We review this issue de novo, concluding that no double jeopardy violation occurred. State v. Paul, 934 So. 2d 1167, 1171 (Fla. 2006).

In Alonso v. State, 834 So. 2d 885 (Fla. 3d DCA 2002), the Third District held that multiple convictions based on distinctly charged acts occurring at different times, [*14] which are supported by competent, substantial evidence, do not violate double jeopardy. In Saavedra v. State, this court said, “The sexual battery statute may be violated in multiple, alternative ways. . . . However, the fact that the same victim is sexually battered in the same manner more than once in a criminal episode by the same defendant does not conclusively prohibit multiple punishments.” 576 So. 2d 953 (Fla. 1st DCA 1991) (internal citations omitted).

As in Alonso, the record here demonstrates that multiple offenses occurred, including several incidents of digital penetration and touching of N.D.D.’s vagina, coupled with incidents of kissing and fondling her breasts, occurring throughout a one-year period. N.D.D. testified that Appellant rubbed her vagina “a lot” of times and touched and kissed her breasts. Appellant admitted touching her vagina four times and digitally penetrating her once or twice. This case does not involve a single criminal episode or a lack of evidence to support multiple convictions and sentences; therefore, no double jeopardy violation occurred.

B. Victim-Injury Points Assessed For Sexual Contact

Appellant also argues that the trial court erred in assessing [*15] 40 victim-injury points for attempted sexual battery, because the jury did not specifically find that he had sexual contact with N.D.D. in committing this offense. A trial court’s order scoring victim injury points is reviewed for an abuse of discretion. McDonald v. State, 520 So. 2d 668 (Fla. 1st DCA 1988).

The trial court calculated a 120-point score for sexual contact based on Appellant’s conviction of attempted sexual battery and two counts of lewd and lascivious molestation. The State argues that the nature of the attempted sexual battery offense required it to prove that Appellant had some type of sexual contact with N.D.D.

In Grant v. State, 783 So. 2d 1120 (Fla. 1st DCA 2001), this court held that the trial court erred in assessing sexual contact points based on a jury verdict of attempted lewd and lascivious molestation, reasoning that the jury could have found the appellant attempted to touch the victim, but failed, as it convicted the appellant of only an attempt. In Luhrsen v. State, 702 So. 2d 596 (Fla. 2nd DCA 1997), the Second District reversed the appellant’s sentence where the trial court scored victim injury points for sexual penetration, because the appellant was only [*16] charged with lewd and lascivious acts without committing sexual battery. However, in Marcado v. State, 735 So. 2d 556 (Fla. 2d DCA 1999), the Second District held that the trial court correctly scored 40 points for sexual contact when the appellant was convicted of attempted sexual battery. Similarly, in Vural v. State, 717 So. 2d 65 (Fla. 3d DCA 1998), the Third District held that the trial court erred by not imposing points for sexual contact where the appellant was convicted of attempted sexual battery because he attempted to force the victim to perform oral sex, but only succeeded in forcing the victim to handle and masturbate him.

Here, Appellant was charged with sexual battery based on sexual penetration or union with his penis. The jury heard evidence that Appellant put his penis in contact with N.D.D.’s vagina. While Appellant denied any sexual intercourse with N.D.D., he admitted digitally penetrating her once or twice and touching her vagina. Clearly the jury found that Appellant somehow put his penis in contact with N.D.D.’s vagina, as otherwise it could not have convicted him of attempted sexual battery. See Marcado, 735 So. 2d 557-58. The trial court scored points for sexual [*17] contact, consistent with N.D.D.’s and Appellant’s testimony and the jury’s finding that Appellant somehow put his penis in contact with N.D.D.’s vagina. Accordingly, we find the trial court did not abuse its discretion in assessing 40 victim injury points based on sexual contact.

We find Appellant’s argument based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), is without merit, as the assessment of 40 points for sexual contact did not increase Appellant’s sentence beyond the statutory maximum of 30 years’ imprisonment because the trial court only sentenced Appellant to 225 months’ imprisonment.

Because the court did not err in finding N.D.D. competent to testify or err in sentencing Appellant, we affirm his conviction and sentence.

AFFIRMED.

VAN NORTWICK and LEWIS, JJ., CONCUR.

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DANIEL BUTLER, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO.: 1D06-5630

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 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 Holmes County. Allen L. Register, Judge.

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

Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.

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

OPINION BY: VAN NORTWICK

OPINION

VAN NORTWICK, J.,

Daniel Butler appeals a restitution order entered against him following a conviction for burglary. In the order under review, the trial court required Butler to pay restitution in the amount of $ 4,190. Butler argues that the trial court’s findings as to value of the property stolen and damaged in the burglary were not based on competent substantial evidence. We agree that, as to the $ 1,275 value placed on the damaged exterior door, the trial court relied on inadmissible hearsay, admitted over Butler’s timely objection. We find, however, that competent substantial evidence supports the remainder of the restitution order. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

On February 1, 2006, Butler and others burglarized Central Supply Store. At the restitution hearing, the owner [*2] of the store testified that cash in the amount of $ 2,390 was stolen in the burglary and that damage was done to an exterior door as well as two interior doors. To establish the value of the exterior door, the State introduced, over Butler’s hearsay objection, a written estimate from Tri-State Door Company. In this estimate, Tri-State Door determined that the cost of replacing the door would be $ 1,275. Butler timely objected to the admissibility of the $ 1,275 estimate for the replacement of the exterior door on the grounds that the estimate was hearsay. The objection was overruled. The trial court ordered the payment of restitution in the amount of $ 4,190 and based the value of the door on the $ 1,275 estimate. On appeal, Butler contends that the amount of restitution was not supported by competent substantial evidence in part because the portion of the restitution order relating to the exterior door was based on inadmissible hearsay.

The State has the burden of establishing restitution by a preponderance of the evidence. Glaubius v. State, 688 So. 2d 913 (Fla. 1997). The trial court, however, possesses the discretion to base the amount of restitution on the victim’s estimate of [*3] value of the stolen or damaged property. K.F. v. State, 746 So. 2d 493 (Fla. 1st DCA 1999). Here, we find no abuse of discretion in the amount of the restitution, except for the valuation of the exterior door. The written estimate of the replacement cost for the exterior door was an out-of-court statement offered to prove the truth of the matter asserted, the value of the exterior door. Thus, the estimate constituted hearsay as defined in section 90.801(1)(c), Florida Statutes (2006), and was inadmissible under section 90.802, Florida Statutes (2006), unless an exception is created by another statutory provision.

Written opinions or estimates may qualify as a business record exception to the hearsay rule under section 90.803(6), Florida Statutes (2006), if production of estimates is a regularly conducted business activity. To lay a proper foundation for the business record exception, however, the proponent of the evidence must (call a witness who can show that each of the foundational requirements set out in the statute is present.” Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So. 2d 1369, 1373 (Fla. 1st DCA 1992); § 90.803(6) (a), Fla. Stat. Alternatively, section 90.803 (6) (c) [*4] provides that the proponent can also establish the foundation by certification or declaration. Here, the State did not call a witness to testify as to the authenticity of the estimate, and the record does not establish that the State attempted to meet the requirements of certification. Accordingly, neither the business record exception nor any other exception applies to the written estimate.

“Hearsay evidence may be used to determine the amount of restitution if there is no objection to the evidence. However, as [defendant] argues and the State concedes, [defendant] made a proper objection to the evidence which should have been sustained.” Williams v. State, 850 So. 2d 627, 628 (Fla. 2d DCA 2003)(reversing and remanding for a new restitution hearing). “On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section 90.803 (6), Florida Statutes (2005), or are uncontested.” I.M. v. State, 958 So. 2d 1014, 1016 (Fla. 1st DCA 2007). Here, Butler made a timely hearsay objection to the admissibility of the written estimate. Because the written estimate was inadmissible hearsay evidence, we hold that the trial court erred in admitting the [*5] estimate and basing the value of the exterior door solely on this evidence.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. Forlano v. State, 964 So. 2d 246 (Fla. 1st DCA 2007).

ALLEN and WEBSTER, JJ., CONCUR.

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CARLOS S. McKNIGHT, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-5937

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 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 Washington County. Allen L. Register, Judge.

COUNSEL: Nancy A. Daniels, Public Defender; and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

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

JUDGES: BROWNING, C.J. BARFIELD, J., CONCURS; and BENTON, J., CONCURS IN THE JUDGMENT.

OPINION BY: BROWNING

OPINION

BROWNING, C.J.

Carlos S. McKnight (Appellant) appeals orders revoking his probation and sentencing him to prison after the trial court relied on certain testimony that, according to Appellant, was based on evidence obtained during an unlawful seizure and should have been suppressed. Finding no abuse of discretion, we affirm the denial of the motion to suppress and the entry of the final orders revoking probation and sentencing Appellant to prison based on his material violations of Conditions (5) and (18).

In March 2005, Appellant was sentenced to one year and one day in prison, to be followed by ten years’ probation. A May 2006 affidavit alleged that during that probationary period, Appellant had violated 1) Condition (5), by failing to live and remain at liberty without violating the law, in that on [*2] May 3, 2006, he was arrested for driving with a suspended or revoked license; 2) Condition (18), by failing to undergo a drug/alcohol evaluation, in that on April 26, 2005, Appellant was instructed to attend an evaluation at River Region Human Services, yet as of May 5, 2006, he had provided no proof of attendance; and 3) Condition (10), by failing to pay court costs to the probation officer pursuant to the court’s agreed payment instructions, in that Appellant owed $ 4,818.30 to the Washington County Clerk of Court as of May 5, 2006.

By the date of the revocation hearing, Appellant was nearly caught up in paying the court cost arrearage; the trial court concluded that this violation of Condition (10) was not material. Ms. Thomas, Appellant’s probation supervisor, testified that Appellant had not provided documentation of completion of the required drug/alcohol evaluation within the allotted time. The trial court’s finding a violation of Condition (18) based on this non-compliance is supported by competent, substantial evidence and is not challenged on appeal. Rather, Appellant contends that the court erred in finding a violation of Condition (5), in that the inculpatory evidence deriving [*3] from Appellant’s contact with the police officers is inadmissible, should have been suppressed, and thus should not have been considered as a factor in revoking probation. See State v. Cross, 487 So. 2d 1056 (Fla. 1986) (stating that evidence obtained through an unlawful search is inadmissible in a probation revocation hearing).

The parties agree on the appropriate standard of review. In reviewing the denial of a motion to suppress, this court must determine whether the factual findings are supported by competent, substantial evidence, but no deference is due the trial court’s conclusions of law. See Hines v. State, 737 So. 2d 1182, 1184 (Fla. 1st DCA 1999). Although appellate courts accord a presumption of correctness to the trial court’s rulings on suppression issues regarding the “determination of historical facts,” appellate panels “must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.” Connor v. State, 803 So. 2d 598, 608 (Fla. 2001) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)). In applying [*4] this presumption of correctness regarding historical facts, this court “must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). The decision to revoke probation is reviewed for an abuse of discretion. See Hurst v. State, 941 So. 2d 1252, 1253 (Fla. 1st DCA 2006).

Viewed in a light most favorable to the State, see Pagan, the evidence that Appellant sought to suppress established the following facts. The alleged violation of Condition (5) was based on Appellant’s arrest on May 3, 2006, for driving while his license was suspended or revoked. Officer Straitt testified that on that date, he was working in a specialized unit dealing with community problems such as drug and burglary complaints. When on assignment, he wore a uniform identifying himself as a Jacksonville police officer. The police had received a series of citizen complaints about a duplex at 718 Day Avenue in Riverside, where a black male reportedly was selling drugs. Straitt and another officer knocked on a door at that address and hoped to meet with the tenant. Instead, they encountered [*5] the landlord, who stated that Shawn Washington rented and lived in that apartment, but no one was there at 4:00 p.m. The police wanted to contact Mr. Washington to determine whether the recent complaints about criminal activity were well-founded. The landlord told the officers that Mr. Washington would be back around 7:00 p.m. Officer Straitt and his partner returned to 718 Day Avenue around 7:00 p.m. and approached the duplex.

Having heard a vehicle drive up, the officers observed a black male (who was identified in court as Appellant) sitting in the driver’s seat of a sports utility vehicle (SUV) in the front driveway. The engine was running, and no one else was in the vehicle. At that point, the police knew only that the suspect, Mr. Washington, was a black male. Over an objection, Officer Straitt testified that as the police approached the stopped vehicle, Appellant opened the door but remained inside. The vehicle was parked close to the front door of Apartment # 718. The police were neither blocking the vehicle nor restraining Appellant’s movement.

Officer Straitt (who was in uniform) introduced himself, stated that he was performing an investigation, and asked (speaking in a conversational [*6] tone and without brandishing a weapon) if Appellant was Mr. Washington and whether he lived at # 718. When Appellant stated his name, which is not Washington, Officer Straitt asked for his identification to verify that Appellant was, in fact, not the person the police were investigating for criminal activity and to have a name for the police investigation report indicating persons to whom the officers had spoken. Appellant produced a Florida I.D. card with a red border. The presentation of the I.D. card, under the particular circumstances, led Straitt to suspect that Appellant might be driving without a valid driver’s license. From his experience, Officer Straitt knew that many people with I.D. cards do not have a license. When Officer Straitt asked if Appellant had a valid driver’s license, Appellant told him “no.” When the officer asked whether the license was suspended or revoked, Appellant commented that it was “badly suspended.” Checking the status of the license disclosed that Appellant was a habitual traffic violator. Because that status of violation is a felony, the officers could not merely write a traffic citation. Instead, they arrested Appellant, read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), [*7] and seized the vehicle. Appellant remarked that the police had not seen him driving the SUV, but he did not comment on the license violation.

As to the events leading to his detention and arrest relating to Condition (5), Appellant notes on appeal that he presented evidence that conflicted with the State’s contention that the officers observed Appellant in the driver’s seat shortly after the SUV arrived at # 718. Appellant testified that an officer mentioned the recent citizen complaints and asked him what was going on. When the officer asked for a driver’s license, Appellant produced an I.D. card and stated he did not have a valid license because it was “badly suspended.” The DHSMV had notified Appellant that his license was suspended for five years. Appellant testified that he did not drive because he knew that doing so without a valid license would violate Condition (5). To the extent that the testimony of Officer Straitt and Appellant conflicted, the trial court exercised its authority as the trier of fact to assess credibility and weigh the evidence in the State’s favor.

The trial court noted that the testimony given by Officer Straitt over a defense objection is dispositive of [*8] the issues in Condition (5). The court found that the officers’ contact with Appellant was a consensual police-citizen encounter up to the point where Appellant disclosed a violation of the law: the suspended or revoked license (where, according to the officer, Appellant had been driving the vehicle). Our task is to determine whether, given the facts as found and supported by competent, substantial evidence, the trial court correctly applied the law.

This is not a “traffic stop” case, for the SUV had recently pulled into the driveway and was stationary, with the engine running and Appellant in the driver’s seat. “The Fourth Amendment requires all warrantless ‘seizures’ of a person to be founded upon at least reasonable suspicion that the individual seized is engaged in wrongdoing.” Golphin v. State, 945 So. 2d 1174, 1180 (Fla. 2006) (citing United States v. Mendenhall, 446 U.S. 544, 552, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980), and Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). The United Supreme Court made it clear in Terry, 392 U.S. at 19 n. 16, that not every encounter between a law-enforcement officer and a citizen is a “seizure.” The Florida Supreme Court has recognized essentially three levels of police-citizen encounters. [*9] See Golphin, 945 So. 2d at 1180; Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). The first level, a “consensual encounter,” “involve[s] minimal police contact and do[es] not invoke constitutional safeguards.” Golphin, 945 So. 2d at 1180. The second level, an “investigatory stop,” allows a police officer to “detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Id.; § 901.151(2), Fla. Stat. (2006). The third level is an “arrest,” which requires probable cause. § 901.151(4); Golphin, 945 So. 2d at 1180.

Determining whether a police-citizen encounter is consensual or has risen to an investigatory stop, for Fourth-Amendment purposes, involves examining the totality of the circumstances surrounding the incident. See Florida v. Bostick, 501 U.S. 429, 439-40, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); State v. Butler, 655 So. 2d 1123, 1125 (Fla. 1995). A law-enforcement officer does not violate the Fourth Amendment simply by approaching someone on the street and asking questions, if the individual is willing to listen. See United States v. Drayton, 536 U.S. 194, 200, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002); Golphin, 945 So. 2d at 1181. As the officers investigated [*10] recent complaints of crime at 718 Day Avenue and approached the SUV at the specific time when Mr. Washington, known by them to be a black male, was expected to be there, Appellant opened the door of the vehicle. Officer Straitt casually introduced himself, stated that he was performing an investigation, asked for Appellant’s name, and inquired as to whether Appellant lived at that address. Because a reasonable person would have believed he was free to leave, this episode was nothing more than a consensual police-citizen encounter, which did not trigger constitutional safeguards. See Mendenhall, 446 U.S. at 553-54; Golphin, 945 So. 2d at 1180, 1187-88; Popple, 626 So. 2d at 186; State v. Gonzalez, 919 So. 2d 702, 703 (Fla. 5th DCA 2006) (stating that in a consensual police-citizen encounter, an officer can approach an individual in public, ask questions, and request identification without having a founded suspicion of criminal activity).

When Appellant orally stated his name as something other than Mr. Washington, Officer Straitt asked for identification to verify Appellant’s identity. The officer testified that he had two reasons for requesting identification: to make sure that the [*11] man was not the individual suspected of criminal activity at that location, and to have a name to put in the police investigation report indicating any person(s) to whom the police had spoken. At that point, the episode remained a consensual encounter, not a seizure. See Bostick, 501 U.S. at 437 (stating than an officer’s request to a defendant for identification is not a detention or seizure); Golphin, 945 So. 2d at 1180-82 (stating that any police activity that restrains a citizen is a seizure, and such contact can be deemed consensual only if a reasonable person would have felt free to leave); Gonzalez, 919 So. 2d at 704.

However, once Appellant (the presumed driver of the SUV) produced the I.D. card rather than a driver’s license, a reasonable suspicion arose, justifying a temporary detention to ascertain whether Appellant had a valid driver’s license and to run a computer check. See § 901.151(2), Fla. Stat. (2006); Lanier v. State, 936 So. 2d 1158, 1161 (Fla. 2d DCA 2006).

The very similar facts in Lanier support affirmance and warrant close consideration. Officers received information that an individual with outstanding warrants was a passenger in a gray Ford automobile bearing [*12] a specific license tag number. While on routine traffic patrol, Officer Shea located the Ford, confirmed that the passenger was the person being sought, and stopped the vehicle. The officer went immediately to the passenger’s door, ordered the passenger out of the car, and arrested the passenger on the outstanding warrant. See id. at 1159. After the arrest, but while the investigation relating to the passenger’s arrest was ongoing, the officer approached Mr. Lanier, the driver, and asked for identification. When Mr. Lanier produced a Florida I.D. card, Officer Shea took it, ordered Mr. Lanier to remain in the car, and “ran his identification” to assure that his license was good and that he had no outstanding warrants. At that point, the officer had not seen Mr. Lanier commit any traffic infraction; the only reason for stopping the car was to effect the arrest of the passenger on the pre-existing warrant. See id. at 1159-60. As another officer ran Mr. Lanier’s identification through the computer, Mr. Lanier exited the vehicle, contrary to Officer Shea’s instructions, and shoved his hands into the waistband of his pants, whereupon the officer ordered Mr. Lanier to remove his hands. When [*13] Mr. Lanier failed to comply, the officer grabbed him, wrestled him to the ground, and handcuffed him. Although a pat-down of Mr. Lanier revealed no contraband, a subsequent search of the area near the struggle disclosed a baggie containing cocaine. These events resulted in charges of driving without a license, possession of cocaine, and resisting an officer without violence. Like Appellant, Mr. Lanier was on probation when he was arrested, and the DOC filed an affidavit of violation of probation, which Mr. Lanier challenged by moving to suppress the evidence arising from the vehicular stop, which (he argued) resulted in an illegal detention. The trial court revoked Mr. Lanier’s probation without considering his motion to suppress. See id. at 1160.

Subsequently, the trial court denied Mr. Lanier’s motion to suppress on the grounds that an officer conducting a valid traffic stop can properly request the driver’s license of the driver. The Second District Court noted that “[t]he disposition of Lanier’s motion to suppress is controlled by whether Shea had the authority to request identification from Lanier, the innocent driver of the Ford, when the sole purpose of the stop of Lanier’s vehicle [*14] was to effect the passenger’s arrest.” See id. at 1161. Given the testimony that the investigation relating to the traffic stop had not been completed when Officer Shea asked for Mr. Lanier’s identification, and noting the holdings of the United States Supreme Court that during a consensual encounter, an officer may lawfully request and hold the identification long enough to run a warrants check, the Second District Court stated that “a similar request during the course of a lawful stop and detention does not rise to the level of a constitutionally cognizable infringement.” See id. It was undisputed that Mr. Lanier’s car was lawfully stopped. With a lawful stop and ongoing investigation arising from the reason for the stop, Officer Shea could properly ask for Mr. Lanier’s identification. See id. (quoting State v. Baez, 894 So. 2d 115 (Fla. 2004)).

Significant to Appellant’s case is the Lanier panel’s conclusion, citing § 322.15(1), Fla. Stat. (2003), that “when Lanier produced only an identification card rather than a driver’s license, reasonable suspicion arose for Shea to believe that Lanier was driving without a proper license.” Lanier, 936 So. 2d at 1161. Thus, Officer Shea was [*15] justified under section 901.151(2), Florida Statutes (2006), in detaining Mr. Lanier while investigating the status of his driver’s license. The evidence against Mr. Lanier obtained during the lawful detention was not illegally obtained, and the motion to suppress was correctly denied. See Lanier, 936 So. 2d at 1161-62.

In the instant case, Officer Straitt knew that many people with I.D. cards do not have a valid license. As in Lanier, 936 So. 2d at 1161, a reasonable suspicion of criminal activity arose when Appellant produced an I.D. card rather than a driver’s license. When Officer Straitt asked whether Appellant had a valid license, Appellant answered “no.” When asked whether his license was suspended, Appellant answered that it was “badly suspended.” When the other officer checked the status of the license, Appellant was found to be a habitual traffic violator. See § 322.264, Fla. Stat. (2006) (defining “habitual traffic offender”).

Section 322.15(1), Fla. Stat. (2006), states:

322.15 License to be carried and exhibited on demand; fingerprint to be imprinted upon a citation.–

(1) Every licensee shall have his or her driver’s license, which must be fully legible with no portion of [*16] such license faded, altered, mutilated, or defaced, in his or her immediate possession at all times when operating a motor vehicle and shall display the same upon the demand of a law enforcement officer or an authorized representative of the department.Appellant failed to comply with the statutory requirement to have and carry a valid driver’s license. Officer Straitt testified that because Appellant’s “habitual traffic offender” infraction is a felony, the officers could not merely write a traffic citation. Instead, they properly arrested Appellant, read his Miranda rights, and seized the vehicle. See § 322.34(5), Fla. Stat. (2006) (designating a third-degree felony where any person whose driver’s license has been revoked under the “habitual offender” provision drives any motor vehicle upon the highways of this state while such license is revoked); § 901.15(1), Fla. Stat. (2006) (authorizing a warrantless arrest where the person has committed a felony in the officer’s presence).

Because the initial encounter was consensual and the officers lawfully detained Appellant for further investigation only after a reasonable suspicion of criminal activity arose, the temporary detention and [*17] the arrest were lawful, the motion to suppress was correctly denied pursuant to federal and Florida law, and the trial court properly considered the new violation of law in concluding that Appellant substantially and willfully violated two conditions of probation. Accordingly, we AFFIRM the orders revoking probation and sentencing Appellant to concurrent terms of five years’ incarceration.

BARFIELD, J., CONCURS; and BENTON, J., CONCURS IN THE JUDGMENT.

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RICKY BRADLEY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-3577

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

3.800 Appeal from the Circuit Court for Volusia County, Joseph G. Will, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

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

OPINION BY:   ORFINGER

OPINION  

ORFINGER, J.

Ricky Bradley challenges the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. On appeal, Mr. Bradley argues that because the information charging him with robbery did not allege that he discharged a firearm during the commission of the offense, the trial court erred when it imposed the twenty-year firearm mandatory minimum prison term pursuant to section 775.087(2), Florida Statutes (2002). We disagree, and affirm.

Relevant to this appeal, Mr. Bradley was charged by information with robbery with a firearm in violation of sections 812.13(1) and (2)(a), Florida Statutes (2002). The information included an allegation that in the course of committing the robbery, Mr. Bradley “was in possession of and carried a firearm,” and cited section 775.087(2), Florida Statutes  [*2]  (2002). Mr. Bradley subsequently entered a plea of nolo contendere to robbery with a firearm pursuant to a plea agreement calling for a sentence of twenty years in prison with a twenty-year minimum mandatory term resulting from his discharge of a firearm during the robbery. Although no direct appeal was taken, Mr. Bradley then filed a motion to correct sentence pursuant to rule 3.800(b)(2). n1 In his motion, Mr. Bradley argued that his twenty-year minimum mandatory sentence was illegal because the information filed by the State alleged the possession of a firearm, and not the discharge of a firearm. Relying on Hope v. State, 588 So. 2d 255 (Fla. 5th DCA 1991), the trial court denied the motion. This appeal followed.

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Mr. Bradley’s motion, which was not prepared by appellate counsel, was filed under rule 3.800(b)(2); however, this rule does not apply because he did not directly appeal his conviction and sentence. See Amendments to Fla. R. of Crim. P. 3.111(e) & 3.800 & Fla. R. App. P. 9.020(h), 9.140, & 9.600, 761 So. 2d 1015, 1019 (Fla. 1999) (explaining that rule 3.800(b)(2) pertains to motions to correct sentencing errors, which includes challenge against illegal sentence, while an  [*3]  appeal is pending); Day v. State, 770 So. 2d 1262, 1262 (Fla. 1st DCA 2000). Still, the trial court properly treated the motion as one filed pursuant to rule 3.800(a) since a defendant may raise the illegality of his sentence at any time. A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Leath v. State, 805 So. 2d 956, 957 (Fla. 2d DCA 2001).
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At the time that Mr. Bradley entered his plea, his counsel advised the court:

Your Honor, at this time[,] pursuant to negotiations with the [S]tate of Florida[,] Mr. Bradley is going to withdraw his not guilty pleas as to attempted felony murder and armed robbery with a firearm. He’s going to be pleading no contest to each count of the information. There’s going to be a stipulation that the injuries to the victim . . . were moderate. What this does is take it out of the 25[-]year mandatory sentencing under the 10/20/life bill. Which if they were deemed to be severe injuries[,] it would be a mandatory 25.

The agreement is pursuant to the 10/20/life bill he is still exposed, because the firearm was discharged, to 20 years mandatory. He will  [*4]  be sentenced to 20 years in the state prison with the expectations [sic] he will have to serve 20 years day for day with credit for time served. I’ve explained to him the only way he’ll get out in less than 20 years is if some how the laws change and it applies to it. But as it stands now[,] he’s got to do 20 years.The State agreed that the plea agreement was as represented and Mr. Bradley then entered his plea, stipulating to the facts alleged in the complaint affidavit (which stated that he had discharged a firearm during the commission of the robbery).

Section 775.087, Florida Statutes, commonly referred to as the 10/20/life statute, requires the imposition of a minimum mandatory sentence of ten years of imprisonment for possessing a firearm, twenty years imprisonment for discharging a firearm, and twenty-five years to life for causing death or great bodily harm resulting from the discharge of a firearm, during one of the felonies enumerated in the statute. See § 775.087(2)(a)1.-3., Fla. Stat. (2006). n2

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In relevant part, section 775.087(2)(a)1.-3., Florida Statutes, provides:

(2) (a) 1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether  [*5]  the use of a weapon is an element of the felony, . . . and during the commission of the offense, such person actually possessed a “firearm” . . . shall be sentenced to a minimum term of imprisonment of 10 years . . . .

2. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” . . . as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.

3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” . . . and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.
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“The purpose of an information is to fairly apprise [the] defendant of the  [*6]  offense with which he is charged.” Leeman v. State, 357 So. 2d 703, 705 (Fla. 1978). As a matter of fundamental due process, an information must include a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fla. R. Crim. P. 3.140(b). As sentencing laws have become more complex with the legislative creation of numerous sentencing enhancement and reclassification schemes, the information has taken on added importance by alerting the defendant to the potential sentences that can be imposed in the event of conviction. Due process is violated when an individual is convicted of a crime not charged in the charging instrument. See State v. Gray, 435 So. 2d 816, 818 (Fla. 1983). However, an information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy. Fla. R. Crim. P. 3.610; State v. Burnette, 881 So. 2d 693 (Fla. 1st DCA 2004). “[T]he test for granting relief based on a defect in the charging document is actual prejudice . . . .” Gray, 435 So. 2d at 818. If the State wishes to seek the reclassification  [*7]  of a crime under the 10/20/life law, it must allege the necessary factual predicate in the information, as such facts are treated as “essential terms.” Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004); see also Rogers v. State, 963 So. 2d 328, 335-36 (Fla. 2d DCA 2007); Davis v. State, 884 So. 2d 1058, 1060 (Fla. 2d DCA 2004); Jackson v. State, 852 So. 2d 941 (Fla. 4th DCA 2003).

Though not in the context of the 10/20/life law, the decisional law has allowed a plea to supply missing elements from an indictment or information. For example, in Burns v. State, 300 So. 2d 317 (Fla. 2d DCA 1974), the appellant was charged with larceny and entered a guilty plea to grand larceny. On appeal, he asserted that he could not be adjudicated guilty of a crime with which he was not charged. The Second District Court affirmed the defendant’s conviction, finding that the plea and proceedings in open court constituted a mutually agreeable amendment of the information. In Brlecic v. State, 456 So. 2d 503 (Fla. 2d DCA 1984), the court again held that “the factual basis given in connection with the plea supplied the missing element of the first degree burglary thereby implicitly amending the information.”  [*8]  Id. at 505. There, the appellant was adjudicated guilty of first-degree burglary even though the amended information charged only burglary of the second degree. The reviewing court indicated that in view of the lower court’s diligent efforts to ensure the appellant understood the consequences of his plea, there could be no possibility that the appellant could have been misled or prejudiced by the amended charging document. In Hope v. State, 588 So. 2d 255, 258 (Fla. 5th DCA 1991), the appellant was charged with DUI under a uniform traffic citation. He pled to felony DUI after receiving copies of the underlying convictions for DUI and notice of the pertinent statutory subsection for felony DUI. Relying on Brlecic, this Court found that even though the information did not allege previous convictions or designate the pertinent subsection, the appellant’s “pleading to an offense acknowledging the existence of unpled essential elements, implicitly amends the information to include them.” Hope, 588 So. 2d at 258. This Court upheld the conviction since the appellant had not been misled in his defense nor was there any danger that he may again be prosecuted for the same offense. Id. Relying  [*9]  on these cases, the First District, in Billiot v. State, 711 So. 2d 1277 (Fla. 1st DCA 1998), similarly upheld the defendant’s guilty plea to charges that he committed aggravated assault while wearing a mask because, while the information did not allege that he wore mask, the factual basis of his plea clearly established that he did so. Here, we conclude that, consistent with the authorities cited, Mr. Bradley’s explicit plea to discharge of a firearm during the commission of a robbery constituted his consent to the implicit amendment of the information to include this element, particularly since it is clear from the record that Mr. Bradley was not misled or prejudiced by the unwritten amendment to the information.

The rules of criminal procedure are not intended to furnish a procedural device to escape justice. Stang v. State, 421 So. 2d 147, 149 (Fla. 1982). As discussed earlier, the test for granting relief based on a defect in the charging document is actual prejudice. Billiot, 777 So. 2d 1278; see Brlecic, 456 So. 2d 503 (permitting state to amend its statement of particulars during trial when there was no prejudice to defendant). Here, Mr. Bradley makes no claim of prejudice.  [*10]  Although Mr. Bradley was only charged by information with possession or carrying a firearm during the commission of the qualifying offense, the record demonstrates that Mr. Bradley was specifically advised that he was pleading to crimes under the 10/20/life statute, and that he was exposing himself to a twenty-year minimum mandatory for discharge of a firearm. As a result, as in Burns, Billiott, Brlecic and Hope, Mr. Bradley’s plea constituted his consent to the implicit amendment of the information to include the discharge of a firearm element.

We acknowledge, as Mr. Bradley argues, that on identical facts, the Fourth District reached the opposite conclusion in Jackson. We disagree with our sister court because we believe the Jackson opinion places a premium on form at the expense of substance since there, as here, the defendant could not credibly argue that he was not aware of the terms of his plea agreement with the State.

Finally, we observe that had this matter proceeded to trial, we might view the matter differently, as a defendant should have clear notice of the charges against him and the facts necessary to support sentence enhancements. But, as the Supreme Court recognized in  [*11]  Blakely v. Washington, 542 U.S. 296, 309 (2004), “[w]hen a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.” Here, we conclude that Mr. Bradley stipulated to the relevant facts necessary to support the imposition of the twenty-year minimum mandatory sentence required for the discharge of a firearm during the commission of a qualifying felony. n3 The plea proceedings reflect that Mr. Bradley was sufficiently put on notice that he was subject to the enhanced minimum mandatory of twenty years due to his discharge of a firearm. As a result, we affirm the denial of his motion to correct sentence and certify express and direct conflict with Jackson.

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In reaching this conclusion, we note that our supreme court has affirmed convictions even when an element of the crime was not supported by a jury finding, concluding that the element was either not in dispute or was waived by the lack of contemporaneous objection to the jury instructions. See Insko v. State, 32 Fla. L. Weekly S559 (Fla. Sept. 20, 2007) (agreeing that defendant’s age was element of offense of  [*12]  lewd or lascivious conduct, but nonetheless concluding that defendant was not entitled to relief because he failed to object to jury instruction, thereby waiving any claim to relief); see also Pena v. State, 901 So. 2d 781, 784 (Fla. 2005) (holding that the failure to instruct the jury that the defendant’s age is an element of first-degree murder by drug distribution was not fundamental, and nothing that element was undisputed and no timely objection was raised); Glover v. State, 863 So. 2d 236, 238 (Fla. 2003) (holding that defendant’s age is an element of capital sexual battery, but affirming conviction because failure to so instruct the jury was not fundamental where element was undisputed). If a defendant can waive the jury’s failure to find an element of the crime, we have no difficulty in concluding that a defendant can stipulate to the existence of that element or sentencing factor in the context of a voluntary plea.
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AFFIRMED; CONFLICT CERTIFIED.

GRIFFIN and EVANDER, JJ., concur.

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DONNA ELLISON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-3013

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

3.800. Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.

COUNSEL:   Donna Ellison, Florida City, Pro se.

No Appearance for Appellee.

JUDGES:   MONACO, J. LAWSON and EVANDER, JJ., concur.

OPINION BY:   MONACO

OPINION  

MONACO, J.

We reverse the order summarily denying the appellant’s motion pursuant to rule 3.850, Florida Rules of Criminal Procedure, and remand with instructions for the trial court either to attach portions of the record that conclusively establish that the appellant is not entitled to relief or for an evidentiary hearing. The issue on appeal concerns whether the appellant waived some of her jail time credit as part of a negotiated plea. Jail time credit issues may be raised in a 3.850 motion, provided the record reflects that the movant has served time for which he or she was not credited. See State v. Mancino, 714 So. 2d 429 (Fla. 1998); Hopping v. State, 708 So. 2d 263 (Fla. 1998).

Here, the trial court denied the appellant’s 3.850 motion after finding that the appellant waived the credits in her plea agreement. Certainly, a defendant may waive jail time credit as part of a plea deal. See, e.g., Ryan v. State, 837 So. 2d 1075 (Fla. 3d DCA 2003). The trial court, however, did not attach any portion  [*2]  of the record conclusively establishing that the appellant is not entitled to relief.

REVERSED and REMANDED with INSTRUCTIONS.

LAWSON and EVANDER, JJ., concur.

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