Florida Criminal Law Opinions

GREGORY D. MILLER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-10

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Alicia Latimore, Judge.

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

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

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

OPINION BY:   ORFINGER

OPINION  

ORFINGER, J.

Gregory D. Miller appeals an order denying his motion to dismiss an information charging him with one count of failure of sexual offender to report in person at a driver’s license office in violation of section 943.0435(9) and (3), Florida Statutes (2006). On appeal, Mr. Miller argues that the statute violates his right to equal protection by requiring him to register with the Florida Sex Offender Registry as a result of an offense he committed in West Virginia in 1994, while exempting similarly-situated Florida sex offenders from the registration requirement. For the reasons that follow, we affirm.

In 1994, Mr. Miller was convicted of a sex crime in West Virginia and designated a sex offender. He was sentenced to prison and released in 1996. Mr. Miller was required to register as a sex offender in West Virginia. Following  [*2]  a move to Florida, Mr. Miller was advised by law enforcement of his registration obligation. After several months passed and Mr. Miller failed to register, he was charged with failing to report as a sex offender at a driver’s license office, in violation of sections 943.0435(9) and (3), Florida Statutes. Mr. Miller moved to dismiss the information on the ground that section 943.0435 was unconstitutional as applied to him, alleging that the statute treated similarly-situated sex offenders differently. After the denial of his motion to dismiss, Mr. Miller pled no contest to the charge, reserving the right to appeal the denial of his dispositive motion to dismiss. This appeal followed.

A motion to dismiss an information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is analogous to a motion for summary judgment in a civil case. State v. Bonebright, 742 So. 2d 290, 291 (Fla. 1st DCA 1998); Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985). Both should be granted sparingly. State v. Fuller, 463 So. 2d 1252 (Fla. 5th DCA 1985). The trial court should not decide factual issues, determine the weight to be given to conflicting evidence or assess the credibility of witnesses. State v. Feagle, 600 So. 2d 1236, 1239 (Fla. 1st DCA 1992).

In  [*3]  this appeal, Mr. Miller seeks our review of his constitutional challenge to section 943.0435(1), Florida Statutes. We review the constitutionality of this statute de novo, as it presents a pure question of law. Dep’t of Ins. v. Keys Title & Abstract Co., 741 So. 2d 599, 601 (Fla. 1st DCA 1999). Further, because there is a strong presumption that statutes are constitutionally valid, see City of Miami v. McGrath, 824 So. 2d 143, 146 (Fla. 2002), we are obligated to interpret the statute in a manner so as to uphold its constitutionality if it is reasonably possible to do so. Capital City Country Club, Inc. v. Tucker, 613 So. 2d 448, 452 (Fla. 1993).

The equal protection clause of the United States Constitution provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1; see also Art. I, § 2, Fla. Const. (stating that “[a]ll natural persons are equal before the law . . .”). Mr. Miller concedes that we analyze the constitutionality of section 943.0435 using the rational relationship test because it does not impair a fundamental right or affect a suspect class of persons. Turner v. State, 937 So. 2d 1184, 1185 (Fla. 5th DCA 2006)  [*4]  (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985); Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005)). Under this test, a court will uphold a statute if the classification bears a rational relationship to a legitimate governmental objective. See Zapo v. Gilreath, 779 So. 2d 651, 655 (Fla. 5th DCA 2001); Keys Title, 741 So. 2d at 602; see also Pennell v. City of San Jose, 485 U.S. 1 (1988). “It would be proper to sustain an equal protection challenge to a statute only if ‘the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made.’” Keys Title, 741 So. 2d at 602 (quoting N. Ridge Gen. Hosp., Inc. v. City of Oakland Park, 374 So. 2d 461, 465 (Fla. 1979)). However, a statutory classification will be found to violate equal protection if it treats similarly-situated people in a different manner based upon an illogical and arbitrary basis. See McElrath v. Burley, 707 So. 2d 836, 839 (Fla. 1st DCA 1998). Hence, in arguing that section 943.0435(1)(a), Florida Statutes, as applied, is discriminatory, Mr. Miller must show (1) that he was treated differently under the  [*5]  law from similarly-situated persons, (2) that the statute intentionally discriminates against him, and (3) that there was no rational basis for the discrimination. See id.

We believe Mr. Miller misreads the statute. The statute does not treat him differently from similarly-situated persons. In 1997, Florida enacted section 943.0435, its sexual offender registration statute. Ch. 97-299, § 8, Laws of Fla., eff. Oct. 1, 1997. Prior to the enactment of that statute, Florida had no sex offender registration requirement. Section 943.0435(1)(a) defines a “sexual offender” as a person convicted of committing specified sexual offenses in Florida or similar offenses in another jurisdiction. Additionally, those offenders who meet the criteria set forth in subparagraphs 1, 2, or 3 of the statute also fall within its scope. In pertinent part, the applicable version of the statute requires:

943.0435. Sexual offenders required to register with the department; penalty

(1) As used in this section, the term:

(a) “Sexual offender” means a person who meets the criteria in subparagraph 1., subparagraph 2., or subparagraph 3., as follows:

1. a. Has been convicted of committing, or attempting, soliciting, or  [*6]  conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor and the defendant is not the victim’s parent; chapter 794, excluding ss. 794.011(10) and 794.0235; s. 796.03; s. 796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; s. 847.0137; s. 847.0138; s. 847.0145; or s. 985.701(1); or any similar offense committed in this state which has been redesignated from a former statute number to one of those listed in this sub-subparagraph; and

b. Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in sub-subparagraph a. For purposes of sub-subparagraph a., a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility;

2. Establishes or maintains a residence in this state and who has not been designated as a sexual predator by a court  [*7]  of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, or would be if the person were a resident of that state or jurisdiction, without regard to whether the person otherwise meets the criteria for registration as a sexual offender . . . .§ 943.0435(1)(a)1.-2., Fla. Stat. (2006) (footnote omitted; emphasis added). n1

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As Mr. Miller was not under any supervision related to his West Virginia conviction, subparagraph 3 does not apply. See § 943.0435(1)(a)3., Fla. Stat. (2006).
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Contrary to Mr. Miller’s argument, section 943.0435(1)(a)1. and 2. does not treat in-state and out-of-state sexual offenders differently. Under subparagraph 1, any person is treated as a sexual offender in Florida if he or she (1) has been convicted of committing specified sexual offenses in Florida or in another jurisdiction and (2) was released from the sanction imposed for the conviction on or after October 1, 1997. § 943.0435(1)(a)1.a.-b., Fla. Stat. (2006); see McCoy v. State, 935 So. 2d 1278, 1279 (Fla. 4th DCA 2006)  [*8]  (stating that this section applies to offenders released from sanction for a qualifying offense on or after October 1, 1997). Thus, contrary to Mr. Miller’s position, both Florida sex offenders and non-Florida sex offenders who committed specified sexual offenses and were released before October 1, 1997, are exempt under this section of the statute.

The statute also provides an alternative provision by which an individual could be defined as a sexual offender. Under subparagraph 2, a person who has been designated a sexual offender by another state must register in this state if that person establishes or maintains a residence in the state of Florida regardless of the date of conviction or release. § 943.0435(1)(a)2., Fla. Stat. (2006). Once again, under this subparagraph, similarly-situated offenders are treated similarly under the law, i.e., regardless of date of conviction or release, offenders who move to Florida, as well as offenders who have been living in Florida must register in Florida if they were required to register in another state. As Mr. Miller was required to register in West Virginia, he was subject to this subparagraph of the statute when he remained in Florida for  [*9]  more than five days. See § 943.0435(1)(c), Fla. Stat. (2006) (stating that “‘[p]ermanent residence’ and ‘temporary residence’ have the same meaning ascribed in s. 775.21″); § 775.21(2)(f)&(g), Fla. Stat. (2006) (defining “[p]ermanent residence” under the sexual predator act as “a place where the person abides, lodges, or resides for 5 or more consecutive days” and “[t]emporary residence” as “a place where the person abides, lodges, or resides for a period of 5 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state”); see also McCoy, 935 So. 2d at 1279-80 (holding that because defendant was released from incarceration for a qualifying sexual offense on January 3, 1997, he was required to register under 943.0435(1)(a)3., Florida Statutes (2002) (now section 943.0435(1)(a)2.), because if he lived in Colorado, he would be required to register as a sex offender). Mr. Miller was treated the same as other similarly-situated sex offenders, moving into Florida  [*10]  or already living in Florida, who are required to register in other states. Thus, he has not shown that section 943.0435 treats him differently from any other similarly-situated sexual offender, or that it intentionally discriminates against him.

Lastly, as this Court recognized in Turner, the Legislature has a rational basis to include in its definition of “sexual offender,” Florida residents who have been designated sexual offenders by another state. n2 937 So. 2d at 1185. Accord Moore, 410 F.3d 1337 (holding that Florida’s various classifications and sub-classifications under section 943.0435, Florida Statutes, were rationally related to a legitimate governmental purpose; budgetary concerns are a legitimate governmental interest); State v. Subido, 925 So. 2d 1052, 1060 (Fla. 5th DCA 2006) (citing Moore in support of conclusion that registration requirement of section 943.0435 is constitutional); Hanson v. State, 905 So. 2d 1036 (Fla. 5th DCA 2005) (adopting and applying the federal court’s substantive due process analysis in Moore to the Sexual Predator Act, section 775.21).

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For this reason, Mr. Miller’s reliance on Idaho v. Dickerson, 129 P.3d 1263 (Idaho Ct. App. 2006) (holding  [*11]  that former version of state’s sex offender registration and notification act violated defendant’s right to travel, and finding that state’s interest in apprehending re-offending sex offenders were not rationally advanced by classification that differentiated between offenders based solely on their date of entry into state), and ACLU of New Mexico v. City of Albuquerque, 137 P.3d 1215 (N.M. Ct. App. 2006) (holding that registration requirements for out-of-state sexual offenders in city’s sex offender registration and notification act resulted in differing treatment for resident and non-resident sex offenders that was not rationally related to city’s interest in protecting citizens from sex offenders, and, therefore, violated equal protection clause; provisions did not require registration of those convicted sex offenders who were most likely to have means and opportunity to reoffend in city, yet, those offenders who were convicted outside the state, who resided out-of-state, and were in city only a limited number of days, had to register), is misplaced.
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For these reasons, we conclude that the challenged statute (1) applies to all similarly-situated persons; (2) does not intentionally  [*12]  discriminate against Mr. Miller alone; and (3) passes a rational basis scrutiny. Accordingly, we conclude that section 943.0435, Florida Statutes, does not offend equal protection.

AFFIRMED.

MONACO and TORPY, JJ., concur.

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GILBERTO LUGO, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 5D06-3720

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Frank N. Kaney, Senior Judge.

COUNSEL:   James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

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

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

OPINION BY:   LAWSON

OPINION  

LAWSON, J.

Gilberto Lugo appeals from his judgment and thirty-year sentence on the charge of lewd or lascivious molestation (child under age 12). We affirm the conviction and sentence. Only one issue was preserved for appellate review, and we will briefly address that issue.

At trial, the father of the victim testified that he basically caught Lugo molesting his child. However, when the State called the victim to testify, she began crying when asked about the incident, and could not answer questions because of her emotional state. Additionally, the prosecutor did not attempt to offer the child’s out-of-court statements confirming the sexual abuse. As its last witness, however, the prosecutor called a child protection team (“CPT”) interviewer, and asked about out-of-court answers given by the child that would tend to show that  [*2]  the victim could accurately relate to others matters that she had personally observed, and that she understood what it meant to be truthful. These were standard questions, such as asking the child to describe the color of an object, and then confirming that the child understood that it would not be truthful to say that the object was a different color. The only alleged error preserved for appellate review is the admission of this testimony over the defense’s hearsay objection. As the prosecutor argued at trial, and the trial court found, this testimony did not involve hearsay because the child’s out-of-court statements were not being offered to prove the truth of the matters asserted in the child’s responses to the questions posed. See § 90.801(1)(c), Fla. Stat. (2006). Rather, the child’s responses were offered to show that the child could accurately relate to others matters that she personally observed.

Under the circumstances, however, the testimony may have been objectionable on other grounds. Because the jury heard no testimony from the child, hearsay or otherwise, relating to any fact in dispute at trial, the child’s ability to accurately explain things that she observed would  [*3]  appear irrelevant. However, because the only objection made at trial was a hearsay objection, and the trial court correctly sustained that objection, there is no basis for appellate relief. See, e.g., Pope v. State, 646 So. 2d 827, 828 (Fla. 5th DCA 1994). Because the other errors alleged in Lugo’s brief were not objected to at trial either, and do no constitute fundamental error, we must affirm. Carratelli v. State, 961 So. 2d 312, 325 (Fla. 2007). If a remedy exists at all, it will be through appropriate postconviction proceedings.

AFFIRMED.

THOMPSON and TORPY, JJ., concur.

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ALAN B. HEPFER, JR., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-3069

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 28, 2007, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Lee County; Lynn Gerald, Jr., Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Joseph Lee, Assistant Attorney General, Tampa, for Appellee.

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

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

Alan B. Hepfer, Jr., appeals his convictions and sentences for two counts of attempted second-degree murder with discharge of a firearm, burglary of a structure while armed, grand theft, and use of a firearm in the commission of a felony (designated as count V). We reverse the conviction and sentence for count V and remand for the trial court to correct errors contained in the written judgment and sentences. We affirm in all other respects.

At a bench trial, the State established that Hepfer and a friend had burglarized a day-care center and then left. Police officers responded to the burglary scene and investigated for over an hour. Hepfer and his friend returned to the scene while the officers were still there. One officer observed Hepfer with a gun and ordered him to drop it. Hepfer and his friend fled, and the officer  [*2]  pursued them toward a wooded area. Hepfer shot at the officer, and then when another officer arrived, Hepfer fired another shot.

At the conclusion of the trial, the trial court found Hepfer guilty of the two attempted murders with discharge of a firearm and grand theft. The court also found Hepfer guilty of burglary of a structure but concluded that the State failed to establish beyond a reasonable doubt that Hepfer was armed when he committed the burglary. Finally, the court did not find Hepfer guilty of count V, the separate charge of use of a firearm in the commission of a felony. The written judgment and sentences are inconsistent with the trial court’s pronouncements as they reflect a conviction for burglary of a structure while armed and a conviction and sentence as to count V concerning the firearm.

Although Hepfer filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), the trial court failed to rule on the motion within sixty days. Thus, the motion is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B); Jones v. State, 898 So. 2d 209, 210 (Fla. 2d DCA 2005). The State properly concedes that the written judgment and sentences do not conform  [*3]  to the trial court’s oral pronouncement. See Driver v. State, 710 So. 2d 652, 653 (Fla. 2d DCA 1998) (“When a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls.”). Accordingly, we reverse the conviction on count V and remand for the trial court to enter a corrected judgment and sentence eliminating that count. On remand, the trial court shall also correct the judgment to eliminate the “while armed” language with respect to Hepfer’s conviction for burglary of a structure. The sentence remains unchanged as to the burglary conviction because the trial court pronounced a sentence of five years’ imprisonment and the written sentence conforms to the oral pronouncement.

Affirmed in part, reversed in part, and remanded.

CANADY and WALLACE, JJ., Concur.

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ZAYED EID BAKHEET ALMAZROUEI, Petitioner, v. STATE OF FLORIDA, Respondent.

CASE NO. 5D07-4043

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

COUNSEL:    [*1]  Jack Fernandez, Marcos E. Hasbun, and Maegen Luka, of Zuckerman Spaeder LLP, Tampa, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.

JUDGES:   PALMER, C.J., THOMPSON and MONACO, JJ., concur.

OPINION  

Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction.

PER CURIAM.

The Petitioner has been charged with three counts of battery on a law enforcement officer, two counts of resisting with violence, one count of criminal mischief, a misdemeanor, and one count misdemeanor DUI. After a hearing, the trial court denied bond. Petitioner asserts that the trial court ignored section 907.041(4)(a), Florida Statutes (2006), asserting that none of the crimes charged constitute a “dangerous crime,” and the Petitioner does not meet the criteria for section 907.041(4)(c), Florida Statutes (2006). We agree that bond with sufficient conditions is warranted in this case. By previous order, the petition for writ of habeas corpus has been granted and the matter of bond remanded to the trial court, with this opinion to follow.

The testimony and evidence submitted below shows that the State did not file a motion for pre-trial  [*2]  detention, pursuant to Florida Rule of Criminal Procedure 3.132(a)(2007). n1 It is undisputed that the crimes charged do not constitute “dangerous crimes,” which would fall under section 907.041(4)(a) and it was not established that the Petitioner meets the criteria for section 907.041(4)(c). In addition, unrefuted testimony was presented that there are sufficiently stringent conditions of bond available to protect the public, as well as to assure the appearance of the Petitioner at future proceedings for the offenses charged.

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At the bond hearing, the State agreed that since the charged violations were not life felonies, it was their understanding that bond would have to be set. However, the State argued that the Appellant’s behavior concerned them and requested that the court make the conditions of bond “sufficiently stringent” to ensure the protection of the public.
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The petition is granted, and the order is quashed, with the matter of bond remanded to the trial court for a hearing to set the conditions for pretrial release.

PETITION GRANTED.

PALMER, C.J., THOMPSON and MONACO, JJ., concur.

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JOHN G. WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-260

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 28, 2007, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Pinellas County; Crockett Farnell, Judge.

COUNSEL:   John G. Williams, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   ALTENBERND, Judge. STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

OPINION BY:   ALTENBERND

OPINION  

ALTENBERND, Judge.

John G. Williams appeals an order denying his motion seeking belated postconviction relief based upon allegations that he retained counsel to file a timely motion but that counsel failed to do so. See Fla. R. Crim. P. 3.850(b)(3). We affirm.

In two separate cases, Mr. Williams was convicted of first-degree murder and rape. Mr. Williams was sentenced to life imprisonment for the murder. For the rape, however, which occurred in 1969, Mr. Williams was sentenced to death. Shortly after the judgments and sentences became final in this case, Mr. Williams, with the assistance of his parents, retained an attorney.

Mr. Williams’ belated motion for postconviction relief alleged that the attorney was retained to seek postconviction relief but never did so. n1 At the evidentiary hearing on this claim, however, it was undisputed that the attorney was retained generally to do whatever  [*2]  he might deem appropriate to save Mr. Williams from the death penalty–he was not expressly retained for the purposes of seeking general postconviction relief. Counsel testified at the hearing that based upon these instructions, he explored all available options and decided the best course of action was to pursue clemency, which he did. Although the clemency petition was unsuccessful, Williams was thereafter spared the death penalty pursuant to Furman v. Georgia, 408 U.S. 238 (1972). See In re Baker, 267 So. 2d 331, 333 n.3 (Fla. 1972). Based upon this evidence, the postconviction court correctly concluded that Mr. Williams had not established a claim for belated postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850(b)(3) because he had not presented evidence that he or his parents retained counsel specifically for the purposes of filing a postconviction motion, nor that counsel thereafter, through neglect, failed to file such a motion.

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At the time, postconviction relief was available by way of Florida Rule of Criminal Procedure 1.850. See In re Florida Rules of Criminal Procedure, 196 So. 2d 124 (Fla. 1967).
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On appeal, Mr. Williams complains generally that he  [*3]  now has information, unknown to him when he filed his motion, suggesting that counsel was ineffective in evaluating the options available and pursuing only a one-page petition for clemency. Even if that were the case, however, Mr. Williams would have no claim. Florida courts do not recognize claims for ineffective assistance of postconviction counsel. See Waterhouse v. State, 792 So. 2d 1176, 1193 (Fla. 2001). The order denying belated postconviction relief is therefore affirmed.

Affirmed.

STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

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NORMAN GASKINS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5348

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 28, 2007, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Polk County; Ronald A. Herring, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   ALTENBERND, Judge. STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

OPINION BY:   ALTENBERND

OPINION  

ALTENBERND, Judge.

Norman Gaskins appeals an order dismissing his petition for habeas corpus, which he filed in the sentencing court and not in the court with jurisdiction over his place of confinement. The circuit court dismissed the petition as an improper vehicle for raising issues that could have been raised on direct appeal or through postconviction proceedings.

The circuit court should have treated the petition as a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Valdez-Garcia v. State, 965 So. 2d 318, 319 (Fla. 2d DCA 2007). We affirm because, reviewed as a motion for postconviction relief, the pleading is untimely because Mr. Gaskins filed it more than two years after the conviction became final. He did not allege any exception to the timeliness requirement  [*2]  for postconviction motions. See Green v. State, 765 So. 2d 825 (Fla. 2d DCA 2000).

Affirmed.

STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

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TERRY A. DENMARK, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-432

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

December 28, 2007, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

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

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

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

OPINION BY:   FULMER

OPINION  

FULMER, Judge.

Terry Denmark appeals the judgments and sentences in three cases encompassing a total of ten counts. Her counsel has filed an Anders n1 brief, which raises a minor sentencing issue on the merits. We affirm.

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Anders v. California, 386 U.S. 738 (1967).
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Denmark pleaded guilty in three cases, encompassing ten charges. At the sentencing hearing, the trial court ordered $ 450 in court costs, stating, “[A]nd I’ll have the court costs be concurrent so one court cost. That will be a condition of probation.” The court also ordered investigative costs in two of the cases, a $ 1000 attorney fee, and a $ 40 indigency fee.

A motion to correct sentencing error was filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), raising numerous challenges to the costs, including that the trial court failed to list the statutory authority  [*2]  for the mandatory costs in writing in each of the three cases. The postconviction court entered an order on April 9, 2007, granting in part and denying in part the motion. The court directed the clerk to strike several of the imposed costs. The court, however, rejected the claim that it failed to list the statutory authority for the mandatory costs in writing.

On appeal, counsel argues that the trial court erred in failing to list the statutory authority for costs in case number 05-20575. We conclude, however, that the record adequately reflects the statutory basis for the costs imposed. The judgment in case number 05-20575 provides: “[T]otal statutory costs in the amount of $ 550.00, inclusive of, $ 2.00 to the Criminal Justice Education Fund, Investigative Costs in the amount of $ 100.00 pursuant to 938.27 F.S. These assessments excluding the Investigative Costs, are concurrent with CRC 05-07147CFANO.” The court’s order of April 9, 2007, amended this amount by removing the $ 100 assessment for investigative costs. This left $ 450 imposed “concurrent with” 05-07147, which, according to the court, means that the defendant has to pay only once. In case number 05-07147, a Judgment for  [*3]  Fine and Costs was entered specifying the statutory authority for the costs imposed. Thus no error occurred in failing to specify the statutory authority for the costs imposed in 05-20575 because those costs are the same costs imposed in cases 05-07147 and 05-09449.

Affirmed.

DAVIS and KELLY, JJ., Concur.

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JOSE JARAMILLO CRUZ, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-1639

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Marion County, David B. Eddy, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

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

OPINION BY:   EVANDER

OPINION  

EVANDER, J.

After a jury trial, the defendant, Jose Cruz, was convicted of two counts of aggravated battery with a deadly weapon. On appeal, he contends that the trial court erred in failing to give the jury a justifiable use of non-deadly force instruction. We agree.

On November 18, 2004, the defendant struck Austin McGreal and Elmer Chambers with his van in the parking lot of the Shady Road Lounge located in Ocala, Florida. McGreal and Chambers provided fairly consistent testimony. McGreal testified that earlier in the evening, Chambers and the defendant had a brief argument inside the Shady Road Lounge. Shortly thereafter, McGreal witnessed a physical altercation between the defendant and an unidentified individual. McGreal advised the lounge owner of the physical altercation and the lounge owner instructed the defendant and the unidentified  [*2]  individual to leave. Both men complied with the lounge owner’s directive.

Later that evening, McGreal saw Chambers standing in the parking lot in front of the lounge. He then saw the defendant in his van arguing with another individual. Chambers had his back to the defendant’s van and told McGreal “that guy’s back again.” McGreal then heard the sound of gravel and spinning wheels and assumed the defendant was leaving. Instead, McGreal witnessed the defendant run Chambers over, dragging him under the van. McGreal tried to help Chambers and was also hit by the defendant’s van. The defendant then struck Chambers a second time with his van. McGreal suffered significant injuries to his wrist, shoulder, and knee.

Chambers testified that earlier in the evening, he had an argument with the defendant because the defendant was walking in front of dart players instead of walking around them. Chambers also heard the lounge owner tell the defendant and the unidentified individual to leave the premises after a physical scuffle between the two. Shortly thereafter, Chambers spotted the defendant’s van parked across the street. Chambers notified the lounge owner and the two went outside. The defendant  [*3]  was standing in the Shady Road Lounge’s parking lot but returned to his van when he saw Chambers and the lounge owner. There was no confrontation or physical altercation.

Approximately one-half hour later, Chambers saw the defendant’s van parked in the lounge’s parking lot. Chambers heard hollering and told McGreal that “it looks like the same van that was here earlier that we told to leave.” While standing in the parking lot, Chambers was struck by the defendant’s van. When Chambers tried to stand up, the defendant ran over Chambers’ foot. Chambers’ foot, shoulder and knee were injured. The knee injury required surgery.

The lounge owner, Gary Harter, testified that Chambers and the defendant had briefly argued because the defendant kept walking in front of dart players. He further stated that he told the defendant to leave the lounge after the defendant was involved in a wrestling match with another individual. According to Harter, the defendant drove away but later returned and was watching the bar from across the street. Several minutes later, the defendant was in his van in the lounge’s parking lot. Harter was inside when he heard the “commotion” in the parking lot. He went outside  [*4]  and saw Chambers and McGreal on the ground. The defendant floored his van and ran over Chambers and McGreal again.

The defendant was stopped later that evening, approximately fifteen to twenty miles from the Shady Road Lounge, because he was driving erratically. The deputy who stopped the defendant testified that the defendant smelled of alcohol, had watery eyes, and was bleeding in the upper shoulder and arm area. It appeared that the defendant had been stabbed three times. There was blood on the interior of the van. The blood was located in and around the driver’s seat, including on the interior of the driver’s door. The defendant told the deputy that he had been involved in a fight in a bar. The defendant was transported by ambulance to the hospital. A paramedic’s testimony confirmed that the defendant had several stab wounds.

At the hospital, the defendant was interviewed by Investigator John Tilley. Tilley testified that the defendant stated that he had been involved in a physical altercation with two males. The defendant told Tilley that one man was choking him and the other one stabbed him. n1 The defendant further told Tilley that he “was trying to get away, and they were hitting  [*5]  while he was trying to get away.” The defendant had not called the police to report that he had been attacked. Tilley further testified that the defendant was intoxicated at the time of the interview.

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No knife was found during the investigation.
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Significantly, there was evidence contradicting McGreal’s and Chambers’ testimony that Chambers had simply been standing in the parking lot when he was unexpectedly struck by the defendant’s van. A lounge patron, Daniel Vanorden, testified that he had seen McGreal and at least one other individual standing next to the defendant’s van by the driver’s window. It appeared that there was an argument. Another lounge patron, Katherine Gamet, testified that she had seen Chambers approach the driver’s side of the van a few minutes before the incident.

Furthermore, Tilley had taken a statement from the lounge owner, Gary Harter, on the evening in question. Harter told Tilley that Chambers and McGreal had gone to the parking lot to talk to the defendant. (At trial, Harter admitted to making such statement to Tilley, but stated it had just been an assumption on his part.) Another deputy testified that on the evening in question, McGreal’s wife told him  [*6]  that Chambers and McGreal had walked over to the defendant’s van to tell the defendant to leave the parking lot. (At trial, McGreal’s wife denied having made that statement.)

The defendant did not testify.

During the charge conference, defense counsel specifically requested the instruction on justifiable use of non-deadly force. The trial judge denied the request, stating:

I’m not giving it. We can give justifiable use of deadly force or you can have justifiable use of non-deadly force. I don’t see the necessity of giving both. To me it’s either one or the other. And my intention is to give justifiable use of deadly force.Defense counsel stated that if the trial court would not give both instructions, he would request the instruction on justifiable use of deadly force. However, defense counsel maintained his objection to the trial court’s refusal to give both instructions. The trial court gave only the instruction on justifiable use of deadly force. In closing argument, defense counsel argued that the evidence supported a finding of self-defense.

Generally, a trial court’s decision to give or withhold a proposed jury instruction is reviewed for an abuse of discretion. However, in a criminal  [*7]  proceeding, the discretion of the trial court is rather narrow because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under the law of the state. Worley v. State, 848 So. 2d 491 (Fla. 5th DCA 2003). Here, as recognized by the trial court, there was evidence to support the defendant’s self-defense theory. However, the trial judge refused to give the instruction on justifiable use of non-deadly force because he believed the use of a motor vehicle to strike an individual was, as a matter of law, the use of deadly force:

I believe the use of a motor vehicle, if a jury believes they were, in fact, run down, that that is force likely to cause death or great bodily injury.

Under Florida law, a person is justified in using deadly force in self-defense only when the person reasonably believes that such force is necessary to prevent one’s imminent death or great bodily harm or to prevent the imminent commission of a forcible felony. Non-deadly force may be used when and to the extent that a person reasonably believes that the use of force is necessary to defend one’s  [*8]  self or another against the imminent use of unlawful force. § 776.012, Fla. Stat. (2004); see also DeLuge v. State, 710 So. 2d 83, 84 (Fla. 5th DCA 1998). “Deadly force” is defined by statute as force likely to cause death or great bodily harm. § 776.06(1), Fla. Stat. (2004). A defendant is engaged in the use of deadly force where the natural, probable, and foreseeable consequences of the defendant’s acts are death. See DeLuge, 710 So. 2d at 84; Garramone v. State, 636 So. 2d 869, 871 (Fla. 4th DCA 1994). The proper focus is on the nature of the force used by the defendant and not the end result. See DeLuge, 710 So. 2d at 84; Garramone, 636 So. 2d at 871.

If the type of force used is clearly deadly or non-deadly as a matter of law, only the applicable instruction should be given. DeLuge, 710 So. 2d at 84. Where the evidence at trial does not establish that the force used by the defendant was deadly or non-deadly as a matter of law, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force. Id.; see also Mathis v. State, 31 Fla. L. Weekly D2639 (Fla. 1st DCA Oct. 25, 2006), rev. denied, 954 So. 2d 1156 (Fla. 2007);  [*9]  Mathews v. State, 799 So. 2d 265 (Fla. 1st DCA 2001). Weighing the evidence is the sole prerogative of the jury and the trial court should decide whether to give an instruction without weighing the evidence. Mathews, 799 So. 2d at 266.

In Florida, the only type of force that has been held to be deadly as a matter of law is the discharge of a firearm. See Mathis, 31 Fla. L. Weekly at D2640; Mathews, 799 So. 2d at 266; DeLuge, 710 So. 2d at 84; Garramone, 636 So. 2d at 871. The force involved in the use of a motor vehicle to strike an individual has been held to present a jury question as to whether the force was deadly. Cooper v. State, 573 So. 2d 74 (Fla. 4th DCA 1990) (whether car traveling at a decent rate of speed is deadly force was jury question).

While we recognize that the use of a motor vehicle to strike an individual would normally be found to constitute the use of deadly force, we can envision circumstances in which a jury could reasonably find otherwise. In the present case, the jury should have been given both instructions so that it could evaluate whether the force used was deadly or non-deadly and whether its use was justified.

REVERSED.

SAWAYA and TORPY, JJ., concur.

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EDWARD C. REDMOND, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-173

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Jose R. Rodriguez, Judge.

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

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

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

OPINION BY:   EVANDER

OPINION  

EVANDER, J.

Redmond was sentenced to five years incarceration followed by ten years of drug offender probation after being convicted on a delivery of cocaine charge. We reject Redmond’s claim that his sentence was the product of judicial vindictiveness.

The fact that the trial judge imposed a harsher sentence after trial than had been offered by the State (and made known to the judge) during pre-trial plea negotiations does not create a presumption of vindictiveness. Graff v. State, 843 So. 2d 1012 (Fla. 5th DCA 2003). Here, the trial judge did not initiate or engage in plea negotiations with Redmond, nor did the trial judge imply that a harsher sentence would result if Redmond exercised his right to a jury trial. Rather, the trial judge simply gave Redmond the option to proceed to trial or to plead to the court. The trial judge was  [*2]  not required to give the parties additional time to conclude their plea negotiations, particularly where jury selection was set to begin.

We do agree, however, that the trial court erred by placing Redmond on ten years drug offender probation for the offense of the delivery of cocaine. Section 948.20, Florida Statutes (2005), authorizes drug offender probation for violations of section 893.13(2)(a) or (6)(a), which prohibit the purchase or possession of certain controlled substances. The trial court was not authorized to impose drug offender probation for delivery of cocaine. State v. Roper, 915 So. 2d 622 (Fla. 5th DCA 2005); see also Anderson v. State, 941 So. 2d 446 (Fla. 4th DCA 2006). On remand, the trial court may resentence Redmond to regular probation. State v. DeMille, 890 So. 2d 454 (Fla. 2d DCA 2004). The trial court may also impose such special conditions as it deems appropriate; provided that they are reasonably related to the offense and promote the rehabilitation of the defendant or the protection of the public. See Grubbs v. State, 373 So. 2d 905 (Fla. 1979); Cassamassima v. State, 657 So. 2d 906 (Fla. 5th DCA 1995).

REVERSED and REMANDED for Resentencing.

PLEUS and MONACO,  [*3]  JJ., concur.

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GARY A. SIPLIN, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 5D06-4071

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

December 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Julie H. O’Kane, Judge.

COUNSEL:   Bruce S. Rogow and Cynthia E. Gunther, of Bruce S. Rogow, P.A., Fort Lauderdale, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

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

OPINION BY:   LAWSON

OPINION  

LAWSON, J.

Gary Anthony Siplin appeals his convictions for grand theft, in violation of section 812.014(2)(c)(2), Florida Statutes (a third degree felony), and for using the services of a state employee during working hours in furtherance of a political campaign, in violation of section 106.15(3), Florida Statutes (a first degree misdemeanor). For the reasons explained below, we reverse both convictions and remand with directions that Mr. Siplin be acquitted on the felony charge. On remand, the State n1 may retry Mr. Siplin on the misdemeanor charge, consistent with this opinion.

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We capitalize “State” when referring to the State of Florida acting in its prosecutorial role, as a party in this case.
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Grand Theft Conviction

In count 1 of its information, the State charged Mr. Siplin with grand theft for knowingly depriving the state of Florida of the services  [*2]  of its employee, Naomi Cooper, between July 31 and November 1, 2004. The theory of the case was that the state paid Ms. Cooper about $ 3,000 per month for the months of August, September and October 2004, to work full-time as Mr. Siplin’s legislative aide, while she was in fact working full-time on Mr. Siplin’s campaign for re-election as a state senator. Ms. Cooper testified for the State that both she and Mr. Siplin planned for her to work full-time on his campaign, and also knew that she could not do so while being paid to work as his legislative aide.

According to Ms. Cooper, she had contracted with the state Democratic party to work though November 2, 2004, on Mr. Siplin’s campaign, for which she was to be fully compensated by the Democratic party. The Senate’s written policies allowed Senate employees to take a leave of absence to work on political campaigns, and expressly allowed leave with pay, for this purpose, so long as the employee was “on authorized annual leave [using accrued vacation time].” It was undisputed at trial that Mr. Siplin instructed Ms. Cooper to do whatever was necessary to arrange her required leave of absence from the state, so that she could legally run  [*3]  his campaign.

At that time, the Senate did not collect time sheets or any other record of time actually worked from its employees. Instead, each Senate office was required to keep track of time worked. If an employee took time off, the senator, or his or her designee, was required to report the time not worked to the legislature’s payroll office, including an explanation of whether the employee was to be paid from accrued annual leave (vacation time), compensatory time, n2 or sick leave, or was simply taking leave without pay. This was normally done by computer entry, and Ms. Cooper was Mr. Siplin’s designee for dealing with payroll issues for his office.

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When a Senate employee was required to work in excess of forty hours in any given week, the overtime hours were banked as “compensatory time.” Accrued compensatory time could then be used, like accrued vacation time, to secure pay for time away from work.
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According to Ms. Cooper’s trial testimony, she believed that she had fully complied with Senate policies by: (1) sending in a letter requesting paid annual leave from June 1, 2004 until July 31, 2004 (which accounted for most of her accrued vacation time); and (2) sending in a copy  [*4]  of her contract with the state Democratic party along with a form entitled “Permission for Outside Employment,” indicating that she would be working as a consultant on Mr. Siplin’s re-election campaign. The contract period ran from May 18 to November 2, and these dates are clearly noted on the face of the one-page contract. In response, Ms. Cooper received a letter from the Senate confirming that: (1) her paid leave was approved for the period from June 1 to July 31; and (2) that her outside employment had also been approved. Ms. Cooper testified that she understood this letter to mean that she had been approved for outside work for the entire time covered by the contract submitted with the form.

There are two problems with Ms. Cooper’s testimony. First, although the contract itself indicates that Ms. Cooper would be working on Mr. Siplin’s campaign until November 2, the form she submitted (and had Mr. Siplin sign) only requested approval for outside employment from June 1 to July 31. Second, Ms. Cooper continued to receive her full state salary for the entire period of time that she was working on the campaign, even though she only arranged for a paid leave through July 31. Ms. Cooper  [*5]  was, of course, aware of this, because the money was automatically deposited into her account each month, and the monthly pay summaries were mailed to her at her residence. Ms. Cooper testified that when she continued to receive a state salary check after July 31, she thought she was being paid for accrued compensatory time and/or sick leave. However, she never mentioned that she was still getting paid by the state to Mr. Siplin, or anyone else in his Senate office. Significantly, the State did not present testimony from any witness indicating that Mr. Siplin knew Ms. Cooper continued to receive her state salary while working on his re-election campaign. n3

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Although the Senate’s routine practice had been to send monthly pay summaries to each local Senate office for distribution to employees, this practice was suspended (at least for Mr. Siplin’s office), in response to the disruption caused by the 2004 hurricane season. Mr. Siplin’s local Senate office was rendered uninhabitable as a result of storm damage, and he had to relocate the office to temporary quarters. Several State witnesses testified that because Ms. Cooper’s state pay summaries were sent to her home during the entire  [*6]  time she was working on Mr. Siplin’s campaign, Mr. Siplin’s office would not have received any documentation that would have put him on notice that Ms. Cooper was being paid her state salary for the months of August, September and October of 2004.
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Instead, the State argues that Mr. Siplin’s knowledge should be inferred from the “Permission For Outside Employment” form that he signed, since it only listed the dates of Ms. Cooper’s paid leave, and his presumed understanding of the Senate’s practice of automatically paying an employee unless a senator’s office reported the employee’s absence from work. The problem with this theory is that the State’s own witnesses testified without any contradiction that: (1) Ms. Cooper regularly acted as Mr. Siplin’s designee for purposes of reporting time away from work; and (2) Mr. Siplin instructed Ms. Cooper to arrange for her time off so that she could legally work for the campaign. Assuming that Mr. Siplin actually studied the outside employment form when it was presented for his signature (so that he recognized the discrepancy between the dates in the form and the dates of Ms. Cooper’s planned absence), it is just as reasonable to infer that Mr.  [*7]  Siplin believed the form only needed to encompass the time covered by Ms. Cooper’s paid leave as it would be to infer that he thereby knew that Ms. Cooper would be paid by the state from August 1 to October 31. n4 Because Ms. Cooper herself normally would have reported her time away, it is also equally reasonable to infer from these facts that Mr. Siplin assumed that Ms. Cooper had arranged for her unpaid leave by computer entry, consistent with their normal office practice and consistent with his express instructions to her.

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Because Siplin did not testify during the trial, there is no direct evidence of what he knew or believed other than the somewhat confusing Senate document he signed.
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Although a jury is normally free to “draw or refuse to draw inferences from the evidence presented,” Ford v. State, 251 So. 2d 562, 563 (Fla. 3d DCA 1971), a special standard applies when the state attempts to secure a conviction based solely on circumstantial evidence: “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” McArthur v. State, 351 So. 2d 972, 976 (Fla. 1977)  [*8]  (citations omitted). This standard is not met here because the State’s evidence does not suggest guilt to the exclusion of all other reasonable inferences. See also, Walker v. State, 957 So. 2d 560, 577 (Fla. 2007) (recognizing that in circumstantial evidence cases a judgment of acquittal is appropriate if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt).

Of course, a strong case could be made that Mr. Siplin should have carefully studied the form that he signed, noted the potential discrepancy, and followed through with the payroll office himself, to make sure that the matter delegated to Ms. Cooper was handled correctly — or should have had some procedure in place to audit an employee who he trusted to handle her own payroll submissions. However, a criminal conviction for theft cannot stand based upon negligence in handling office paperwork or procedures.

“Under Florida law, a theft requires proof of taking . . . with the intent to steal.” Bartlett v. State, 765 So. 2d 799, 800 (Fla. 1st DCA 2000). And, “where it clearly appears that the taking was perfectly consistent with honest conduct, although the party charged  [*9]  with the crime may have been mistaken, he cannot be convicted of larceny.” Id. (quoting Cooper v. State, 90 So. 375 (Fla. 1921)). Because the State’s evidence was insufficient to prove beyond a reasonable doubt that Mr. Siplin even knew that Ms. Cooper was receiving a state paycheck after July 31, while working on his campaign, the State clearly cannot show that he intended to steal from the state.

Mr. Siplin properly challenged the sufficiency of the State’s evidence on count 1 both by pretrial motion and through a timely motion for judgment of acquittal. The issue was therefore preserved for appellate review, and reversal of the conviction is required. Bartlett, 765 So. 2d at 800; Walker, 957 So. 2d at 577. Because it would violate double jeopardy principles to allow the State to try Mr. Siplin a second time on this charge when its evidence was insufficient to sustain a conviction at the first trial, see Tibbs v. State, 397 So. 2d 1120 (Fla.1981), affirmed, 457 U.S. 31 (1982), we remand with directions that the trial court enter a judgment of acquittal as to this charge. Mr. Siplin cannot be re-tried on count 1. Id.

Misdemeanor Conviction

In count 2 of its information, the State charged  [*10]  Mr. Siplin with violating section 106.15(3), Florida Statutes (2004), by using the services of two state employees, Sarah Caraballo and Jose Bosque, during work hours, in furtherance of his candidacy for public office. Section 106.15(3) reads, “A candidate may not, in the furtherance of his or her candidacy for nomination or election to public office in any election, use the services of any state, county, municipal, or district officer or employee during working hours.” A violation of this statute constitutes a first degree misdemeanor.

Before trial, Mr. Siplin filed a motion to dismiss this count, arguing that section 106.15(3) was unconstitutionally vague, overbroad and violative of substantive due process. This motion was denied, and Mr. Siplin makes these same arguments on appeal. At the outset, we note that in contrast to count 1, the State’s evidence on this count was sufficient to sustain a verdict of guilt. Both Mr. Bosque and Ms. Caraballo were employed by the state of Florida, working in Mr. Siplin’s Senate office during the 2004 campaign season. Although Mr. Bosque testified that he did no political campaign work for Mr. Siplin on state time, n5 Ms. Caraballo testified that  [*11]  she did. According to Ms. Caraballo, Mr. Siplin directed her to work on political campaign ads, answer campaign phone calls, and help with voter registration and absentee ballots, for the campaign, all during state office hours. She testified that she confronted Mr. Siplin about this, explaining that she was not supposed to work on his political campaign during her state office hours, and he told “not to get caught” — but that she needed to help with the campaign because she would not have a job unless he got re-elected. Obviously, Ms. Caraballo’s testimony would be sufficient to support a guilty verdict on the misdemeanor charge, but for Mr. Siplin’s legal challenge to the statute itself

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Mr. Bosque testified that he was hired onto Mr. Siplin’s Senate staff shortly before Hurricane Charley struck Central Florida in August of 2004. Charley was soon followed by Hurricanes Frances and Jeanne. Mr. Bosque explained that his primary role in the office quickly became community outreach, or a “campaign” to connect citizens affected by the storms with needed services. Although Mr. Bosque testified to his joint efforts with Mr. Siplin, during work hours, on the “campaign,” he clarified that  [*12]  he was referring to this informational campaign, and not to Mr. Siplin’s political campaign. Mr. Bosque testified that he never saw Mr. Siplin pressure anyone on his Senate staff to work on the political campaign — but that the pressure was simply to help the community in the wake of the storms.
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As previously noted, Mr. Siplin challenges section 106.15(3) as vague, overbroad and violative of due process. We find that Mr. Siplin lacks standing to raise his vagueness challenge, and will briefly address this issue first. “The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct.” Brown v. State, 629 So. 2d 841, 842 (Fla. 1994) (citations omitted). “A statute is not void for vagueness if the language “‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’” Id.

Mr. Siplin argues that the statute is unconstitutionally vague because the terms “in furtherance of,” “services,” and “working hours,” are imprecise and fail to adequately warn of what conduct is proscribed. Although these terms appear relatively clear, we must  [*13]  determine whether Mr. Siplin has standing to assert a vagueness challenge before applying the vagueness test. See, e.g., L.S. v. State, 947 So. 2d 641, 646 (Fla. 3d DCA 2007). The general rule is that a defendant cannot complain of a statute’s “vagueness as applied to the hypothetical conduct of others” when “the record demonstrates that [he or she] engaged in some conduct clearly proscribed by the plain and ordinary meaning” of the statute. Id. (quoting Sieniarecki v. State, 756 So. 2d 68, 75 (Fla. 2000)). Here, Mr. Siplin questions whether picking up a candidate’s suit at the dry cleaners or driving a candidate to a barber would be a “service” that could be viewed as undertaken “in furtherance of” a candidacy for public office. However, the law does not allow Mr. Siplin to challenge the statute as vague based upon these hypothetical scenarios given the State’s evidence in this case that Mr. Siplin ordered Ms. Caraballo to answer campaign phones, work on campaign ads, and handle other tasks unquestionably central to the operation of his political campaign during her state working hours. Id. Accordingly, we find that Mr. Siplin lacks standing to raise a vagueness challenge. Id.

Mr.  [*14]  Siplin’s overbreadth and due process challenges both relate to the fact that section 106.15(3) does not expressly contain a guilty knowledge or mens rea requirement. Applied literally, the statute would criminally punish a candidate whenever a state employee worked on his or her campaign on state time, even without the candidate’s knowledge or approval. n6 For example, assume a state employee volunteers to stand on a street corner during his state work hours (and without taking time off), to hold a sign in a large group of supporters, with a candidate on election day. Without a mens rea element, the candidate whose name appears on the sign could be prosecuted for the state employee’s misdeed, even though the candidate did not know the volunteer personally; did not solicit the help; and, had no idea that the person joining him to spread his campaign message was even a state employee. If applied in this fashion, we agree with Mr. Siplin that this statute would be unconstitutional on both overbreadth n7 and substantive due process n8 grounds.

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Although the State presented sufficient evidence from which a jury could conclude that Mr. Siplin knew of Ms. Caraballo’s campaign activities, on  [*15]  his behalf and during work hours, the type of standing requirement applicable to Mr. Siplin’s vagueness challenge does not apply to his overbreadth or due process claims. An overbreadth challenge based upon infringement of First Amendment rights may be raised “even by one who does not show that his own conduct is innocent and not subject to being regulated by a narrowly drawn statute.” State v. Ashcraft, 378 So. 2d 284, 285 (Fla. 1979). In other words, a litigant need not show that his conduct is protected by the First Amendment, but rather, that enforcement of the statute may cause “others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. at 601, 612 (1973). This relaxed standing requirement is allowed for First Amendment overbreadth challenges because statutes that restrict the exercise of First Amendment rights may have a chilling effect on such rights and must be “narrowly tailored” to address compelling government interests. Id. at 611-12 (1973). Additionally, the State has not raised a standing challenge to Siplin’s substantive due process claim, and we are not aware of such a requirement in this context.7

Overbreadth  [*16]  “refers to a challenge to a statute on the constitutional ground that it achieves its governmental purpose to control or prevent activities properly subject to regulation by means that sweep too broadly into an area of constitutionally protected freedom.” State v. Gray, 435 So. 2d 816 (Fla. 1983) (citing Broadrick, 413 U.S. 601). Here, the State obviously has a legitimate interest in guarding state funds by restricting its employees from engaging in personal activities on state time. However, when judged in relation to the statute’s legitimate purpose, we conclude that the lack of a mens rea requirement in the statute would result in a real and substantial infringement of First Amendment rights by subjecting candidates who unwittingly violated the statute (while simply running a campaign in the legitimate exercise of First Amendment rights) to criminal prosecution.8

The right of substantive due process arising out of the Fourteenth Amendment to the United States Constitution and Article 1, Section 9 of the Florida Constitution prevents the government from engaging in conduct that “shocks the conscience” or interferes with rights “implicit in the concept of ordered liberty.” Hudson v. State, 825 So. 2d 460, 465 (Fla. 1st DCA 2002)  [*17]  (quoting United States v. Salerno, 481 U.S. 739 (1987)). Generally, it violates substantive due process to criminalize purely innocent conduct. See, e.g., Giorgetti, 868 So. 2d 512 (Fla. 2004).
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However, criminal statutes are generally read to include a mens rea element, even when not expressly included in the statute. E.g., State v. Giorgetti, 868 So. 2d 512, 515-516 (Fla. 2004); see also, State v. Oxx, 417 So. 2d (Fla. 5th DCA 1982); Deehl v. Knox, 414 So. 2d 1089 (Fla. 3d DCA 1982); but see, Sult v. State, 906 So. 2d 1013, 1022 (Fla. 2005) (recognizing this rule but concluded that the statute in that case was “incapable of a narrower construction because there is no logical way to read a specific intent element into the statute as it is currently written.”). As explained in Giorgetti, there are two reasons for this rule. First, because “guilty knowledge or mens rea was a necessary element in the proof of every crime” at common law, it is presumed that the legislature also intends to include a guilty knowledge element in its criminal statutes, absent an express statement to the contrary. 868 So. 2d at 515-16. Second, criminal statutes that fail to include a mens rea element usually  [*18]  raise due process concerns, and courts are “obligated to construe statutes in a manner that avoids . . . [holding a statute] unconstitutional.” Id. at 518.

Given this precedent, we believe that we must read section 106.15(3) as containing a mens rea requirement. n9 Although this reading of the statute resolves Mr. Siplin’s constitutional challenges to section 106.15(3), it does not cure the fact that the jury in Mr. Siplin’s case was instructed that they could convict him with no mens rea element. Mr. Siplin addressed this issue at trial, and requested that the jury instructions include a mens rea element. Although Ms. Caraballo testified that Mr. Siplin personally pressured her to perform campaign work during state office hours (which, of course, constitutes direct evidence of mens rea), her testimony conflicted with other evidence. For example, Mr. Bosque testified that he never witnessed Mr. Siplin pressuring any employee to work on the political campaign, but did see Ms. Caraballo using work hours for personal matters unrelated to the campaign. He also testified to facts from which a jury could conclude that Ms. Caraballo held a personal bias against Mr. Siplin. Mr. Bosque testified  [*19]  that while Ms. Caraballo worked as Mr. Siplin’s legislative aide she talked negatively “all the time” about Mr. Siplin, his “opinions on community matters,” “how he ran his office,” “how he ran his personal life,” and his “politics.” Ms. Cooper also testified that she never saw Mr. Siplin ask any Senate employee to “do campaign work during working hours,” and that the “office culture and policy ” was that political campaign work “should not be done” during state work hours. Ms. Cooper also testified that she made sure that there was a complete separation between Mr. Siplin’s campaign office, which she was running, and his legislative office. In addition to the legal requirement for separation, Ms. Cooper testified that she did not trust Ms. Caraballo with any campaign information because Ms. Caraballo belonged to a different political party.

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This can easily be accomplished by simply inserting the word ‘knowingly” into the statute before the word “use.” Thus, the statute would read as follows: “A candidate may not, in the furtherance of his or her candidacy for nomination or election to public office in any election, knowingly use the services of any state, county, municipal, or district  [*20]  officer or employee during working hours.” (emphasis added). This construction protects innocent activity, and thereby saves the statute.
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Because of the evidence conflicting with Ms. Caraballo’s account, and impeaching her credibility based upon personal bias or prejudice, we cannot find that the failure to include a mens rea instruction on count 2, as requested by Mr. Siplin at trial, constituted harmless error. See, e.g., Cox v. State, 966 So. 2d 337, 347 (Fla. 2007) (“The harmless error test . . . requires 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.’”) (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986)). Accordingly, even though we are applying a limiting construction to alleviate the potential due process and overbreadth infirmities in the statute, Mr. Siplin’s conviction must be reversed and remanded so that he can have the case tried before a jury properly instructed on the statute, with a mens rea requirement, should the State elect to prosecute the misdemeanor  [*21]  on remand. If the State elects not to proceed to trial on this charge again, it can simply nolle pros count 2. If it elects to go forward on the charge, the matter should be transferred to county court, for proceedings consistent with this opinion.

REVERSED AND REMANDED.

ORFINGER and MONACO, JJ., concur.

Courtesy of David Edelstein

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