Florida Criminal Law Opinions

L.O.J., a Child, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-248

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

January 30, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Elizabeth Metzger, Judge; L.T. Case Nos. 312006CJ316A, 312006CJ573A, 312006CJ576A, 312006CJ672A.

COUNSEL:   Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   MAY, J. POLEN and KLEIN, JJ., concur.

OPINION BY:   MAY

OPINION  

MAY, J.

A juvenile appeals an order adjudicating him delinquent and committing him to a high risk residential program. He raises three arguments. He argues the trial court erred in adjudicating him delinquent for three counts of grand theft and one count of dealing in stolen property for the same firearms. He also asserts the trial court erred in designating him as a serious or habitual juvenile offender, and in failing to limit its jurisdiction over him to the age of 19. We reverse on the first issue, but affirm in all other respects, and remand for further proceedings.

The State filed a delinquency petition alleging five counts, one for armed burglary of a residence, three for grand theft of firearms taken from that residence,  [*2]  and one for dealing in stolen property (the firearms). The juvenile entered a no contest plea on all counts. The trial court accepted the plea, adjudicated the juvenile delinquent, and committed him to a high risk residential program as a serious or habitual juvenile offender.

The juvenile then filed an amended motion to correct the disposition order. n1 The motion asked the court to strike the disposition order as it related to counts I (grand theft), II (dealing in stolen property), and IV (grand theft), based on double jeopardy grounds. In essence, he argued that the court could not adjudicate him delinquent on three grand theft counts and the dealing in stolen property count because they all related to the same stolen property.

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

The juvenile filed the motion in four cases. The court granted the motion as it related to three cases not involved in this appeal.
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The court denied the motion. It found that the firearms charged in the grand theft counts were not the same as those involved in the dealing in stolen property count as there were multiple firearms taken during the residential burglary. It is in this finding that the trial court erred.

We have previously held that double jeopardy  [*3]  does not prohibit convictions for grand theft and dealing in stolen property because each offense requires an element that the other does not. Blair v. State, 667 So. 2d 834 (Fla. 4th DCA 1996) (discussing Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). Nevertheless, section 812.025, Florida Statutes (2006) prohibits convictions for both crimes where a single charging document charges “theft and dealing in stolen property in connection with one scheme or course of conduct.” Toson v. State, 864 So.2d 552, 554 (Fla. 4th DCA 2004). In that circumstance, the “trier of fact may return a guilty verdict on one or the other, but not both, of the counts.” § 812.025, Fla. Stat. (2006). In Toson, this court reversed convictions for grand theft and three counts of dealing in stolen property because the counts all involved the same property. Toson, 864 So.2d at 556. See also Hall v. State, 826 So.2d 268, 270-72 (Fla. 2002); Aversano v. State, 966 So. 2d 493, 496-97 (Fla. 4th DCA 2007).

Here, the petition alleged three counts of grand theft of a firearm and one count of dealing in stolen property. The State’s factual basis for the plea revealed that the juvenile burglarized a house and found  [*4]  twenty guns, some of which he stole, along with some ammunition. He threw the firearms over the fence intending to retrieve them later and sell them for money to buy clothes or marijuana. The juvenile admitted burglarizing the house, stealing the guns, and selling one of them.

When analyzing the issue, the trial court focused its attention on the fact that multiple guns were taken from the residence instead of analyzing whether the theft counts and dealing in stolen property count were distinct and unrelated criminal incidents. When the proper analysis is applied, it is clear that section 812.025, Florida Statutes (2006) prohibits the adjudication on the three grand theft charges and the dealing in stolen property charge in this case. In fact, one firearm involved in the theft charge was precisely the same firearm that formed the basis for the dealing in stolen property count.

The second argument raised by the juvenile concerns the trial court’s designation of him as a serious or habitual juvenile offender. Section 985.47(1), Florida Statutes (2006) provides:

A “Serious or habitual juvenile offender,” for the purposes of commitment to a residential facility and for purposes of records  [*5]  retention, means a child who has been found to have committed a delinquent act or a violation of law, in the case currently before the court, and who meets at least one of the following criteria:

(a) The child is at least 13 years of age at the time of the disposition for the current offense and has been adjudicated on the current offense for:

. . .

14. Carrying, displaying, using, threatening, or attempting to use a weapon or firearm during the commission of a felony[,]

(b) The child is at least 13 years of age at the time of the disposition, the current offense is a felony, and the child has previously been committed at least two times to a delinquency commitment program[,] [or]

(c) The child is at least 13 years of age and is currently committed for a felony offense and transferred from a moderate-risk or high-risk residential commitment placement.§ 985.47(1), Fla. Stat. (2006) (emphasis added).

Here, the juvenile was 13 years of age, pled to, and was adjudicated for, three counts of grand theft of a firearm, one count of dealing in stolen property, and one count of armed burglary. Each of these offenses falls within the purview of subsection 14. Therefore the trial court did not err  [*6]  in making this designation. The court further did not err in failing to limit its jurisdiction over this juvenile to the age of 19. See § 985.0301(5)(d), Fla. Stat. (2006) (providing for retention of jurisdiction over a child committed for placement in a high-risk residential commitment program until the child’s 22nd birthday).

For the reason expressed above, we reverse the adjudication and disposition order and remand the case to the trial court to vacate either the dealing in stolen property charge or the three counts of grand theft of a firearm and to enter a new disposition order.

Reversed and Remanded.

POLEN and KLEIN, JJ., concur.

Courtesy of David Edelstein

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Javier Dejesus Ventura, Appellant, vs. The State of Florida, Appellee.

No. 3D05-872

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

January 30, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court for Miami-Dade County, Victoria S. Sigler, Judge. Lower Tribunal No. 02-32361.

COUNSEL:   Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Lisa A. Davis, Assistant Attorney General, for appellee.

JUDGES:   Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.

OPINION BY:   RAMIREZ

OPINION  

RAMIREZ, J.

Javier Dejesus Ventura appeals his conviction on two counts of robbery with a weapon, and his sentence to thirty years as a prison releasee reoffender (PRR). He claims the trial court erred in: (1) denying his motion for mistrial and in failing to give an appropriate curative instruction after the lead detective commented upon his right to remain silent, and (2) relying on hearsay to sentence him as a PRR. We affirm.

I.

Ventura was charged with three counts of armed robbery with a deadly weapon (a pellet rifle) of three different victims. At trial, Vladimiro Rojas testified that at about two a.m. on October 31, 2002, he was walking from a cafe toward his car at Collins Avenue and 8th Street with Silvina Burstein and her friend. At the corner, a car pulled up next to them. The car was a brown Ford, a Crown Victoria or a Grand Marquis.  [*2]  Two men got out with guns and demanded their property. One man was skinny; the other was fat. The skinny one had his head shaved, was wearing a white and black tank shirt, and was holding a gun that looked like a rifle. Rojas gave them his cellular phone and jacket. The two men took his friends’ things and ran back to their car.

When the car left, Rojas summoned police and reported what had happened. The police officers told him they had stopped the car he had described. An officer drove Rojas and his friends to where they had stopped the car, on the MacArthur Causeway. They brought out the suspects. Rojas identified Ventura as the person who pointed the gun at him, and he also identified the car. He also identified Ventura in the courtroom as the person who had pointed the gun at him.

Silvina Burstein corroborated Rojas’s testimony. She reported that at about two a.m. on October 31, 2002, she was walking with Rojas and her friend when she was robbed. Two men came at her and demanded her property; one of them had a gun – he was tall and thin with short hair. She gave them her purse, with her cell phone and credit cards. They drove off in a big, old greyish silver car. Police arrived  [*3]  and subsequently told Burstein that a car had been stopped on the MacArthur Causeway. The police took the victims there, and she identified the car, and identified Ventura as one of her assailants. She also identified Ventura in the courtroom.

Detective Teppenberg identified a photograph of Rojas, with the property taken from him in the robbery and subsequently recovered from inside the car where Ventura was apprehended, a photograph of Burstein, with the property taken from her in the robbery and subsequently recovered, and a photograph of a BB rifle recovered by police during the investigation. During Detective Teppenberg’s testimony, the following transpired:

Q. And when you got there what did you do?

A. Well, I spoke to the victims and to the officer. [Their] stories were consistent to that offense report about what had occurred in the robbery. I also had requested I.D. to take pictures of the recovered stolen property. Along with the victims, the defendant’s [sic] wouldn’t give any statements.

[Defense counsel]: I reserve a motion on that.

A few moments later, Detective Teppenberg further testified:

Q. You were informed by the officer what they did [at] the scene?

A. Yes. The suspects  [*4]  were in custody and the defendant then declined to make statements.

[Defense counsel]: I reserve a motion.

THE COURT: Noted.

The State rested following Detective Teppenberg’s testimony, and the jury was removed from the courtroom. Defense counsel then moved for a mistrial on the ground that Detective Teppenberg had improperly told the jury that Ventura had refused to make a statement explaining the stolen property in the vehicle when he was entitled to exercise his right to remain silent, and such comment before the jury was improper and highly prejudicial.

The trial court commented that the detective’s remarks had been improper, but indicated they did not warrant a mistrial. The court denied the motion. The jury was then brought in, and closing arguments proceeded.

On Ventura’s motion, the court granted a judgment of acquittal as to Count 2 of the Information, alleging a robbery from the third victim, who had not testified. Only Counts 1 and 3 were submitted to the jury. The jury found Ventura guilty of two counts of robbery with a weapon, as a lesser offense of armed robbery with a deadly weapon. Ventura moved for a new trial on the ground that Detective Teppenberg’s comments on Ventura’s  [*5]  exercise of his right to remain silent had deprived him of a fair trial. The trial court denied the motion. The trial court sentenced Ventura to thirty years in state prison as a PRR. Ventura then moved, pursuant to Rule 3.800(b), to correct the sentence on the ground that the State had not submitted competent proof that he met the criteria for sentencing as a PRR sentence.

The trial court denied the motion, holding that the documents in the record were under seal, and thus self-authenticating documents, and that they authenticated themselves as public records admissible under the hearsay exception for public records, under Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006). The trial court further held that the documents were public records admissible under the public records exception to the hearsay rule under Yisrael. The trial court found that Ventura’s release date was sufficiently shown by these public records.

II.

The State does not contest the fact that it cannot use Ventura’s silence to infer guilt. See Love v. State, 438 So. 2d 142, 144 (Fla. 3d DCA 1983). It attempts to defend the detective’s statement on the basis that the prosecutor did not elicit the testimony from Detective  [*6]  Teppenberg. We fail to see how this makes the statement any less harmful. The lead detective is as much a member of the prosecution team as the attorney asking the question. The fact that the prosecutor did not elicit the statement may mitigate the attorney’s action, but the State has an obligation to prepare its witnesses. Even the most cursory trial preparation should have avoided the detective’s testimony. Thus, whether intentional or negligent, the prosecution is not guiltless.

But neither is defense counsel, who merely reserved a motion. By not requesting an immediate sidebar, counsel left open the possibility that the witness would repeat the accusatory silence of Ventura, as indeed occurred. Counsel also could have attempted to establish how these unsolicited comments crept into the trial, whether it was the detective’s idea to poison the jury, or whether it had been planned with the prosecutor. This detective testified that she had been with the Miami Beach Police Department for twenty-two-and-one-half years. She was a trained criminal investigator. We fail to see how the detective’s comment, twice repeated, could have been anything other than an intentional cheap shot at Ventura’s  [*7]  constitutional rights. Yet, defense counsel’s lackadaisical attitude would seem to indicate that this Court is more offended than defense counsel, who, on this record, never made a valid objection, but merely reserved one. There was no contemporaneous objection.

“Error involving comment on silence must be evaluated under a harmless error analysis.” State v. Hoggins, 718 So. 2d 761, 772 (Fla. 1998). “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 . . .” State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986). We conclude that the detective’s testimony was improper, but harmless beyond a reasonable doubt given the overwhelming evidence of guilt.

III.

As to Ventura’s argument that the trial court erred in relying on hearsay to sentence him as a PRR, no such objection was made by defense counsel during the sentencing hearing. Furthermore, Ventura has never alleged that the document relied upon by the court contains an error. Finally, had a proper, timely objection been made, we agree with Yisrael v. State, 938 So. 2d at 546, that the letter in evidence  [*8]  could be properly considered by the trial court under the public records exception to the hearsay rule, subsection 90.803(8), Florida Statutes (2005). subsection 90.803(8) provides that:

Public Records and Reports: Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

As this Court stated in Ward v. State, 965 So. 2d 308 (Fla. 3d DCA 2007):

Under Florida law, the Department has a statutory duty to obtain and place in its permanent records information as complete as may be practicably available on every person who may become subject to parole . . . An inmate’s release date is the type of information falling within this statutory duty.Id. at 309 (citations omitted).

Affirmed.

Courtesy of David Edelstein

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Luis Delgado, Appellant, vs. The State of Florida, Appellee.

No. 3D05-702

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

January 30, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court for Miami-Dade County, Leonard E. Glick, Judge. Lower Tribunal No. 87-35599.

COUNSEL:   Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.

JUDGES:   Before RAMIREZ, and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

OPINION BY:   RAMIREZ

OPINION  

RAMIREZ, J.

This Court withdraws the opinion rendered on February 7, 2007, and substitutes the following in its place. Luis Delgado appeals the denial of his motion under Florida Rule of Criminal Procedure 3.800(a), alleging that the State incorrectly calculated his scoresheet points resulting in a sentence greater than allowed by law. We agree and reverse for resentencing.

Delgado was convicted of twelve felony counts arising out of a single home invasion robbery, involving multiple victims. The trial court sentenced Delgado to life in prison on February 21, 1989. His scoresheet totaled 518 points and notes one departure reason, the “sophisticated, professional, organized, planned” manner in which the crimes were carried out. This total placed Delgado in the “life” range on the scoresheet. If he had scored between 471 and  [*2]  506 points, he would have been in the twenty-seven to forty year range. In his 3.800(a) motion, Delgado argued that: (1) his scoresheet reflects an incorrect calculation because first degree and second degree felonies were counted; (2) victim injury points were illegally assessed; and (3) the departure reason was invalid and this resulted in a sentence beyond the legal limit.

First, Delgado raised purely legal issues in his 3.800(a) motion regarding his sentencing, which may be resolved by consulting court records and which, taken together, show that the terms of his sentence are impermissible as a matter of law. See Carter v. State, 786 So. 2d 1173, 1180 (Fla. 2001) (concluding that because the error in sentencing Carter as a habitual offender for a life felony was apparent on the face of the record, Carter was entitled to relief pursuant to Rule 3.800(a)). Florida Rule of Criminal Procedure 3.800(a) provides that a court:

[M]ay at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet . . . when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief….(emphasis added).  [*3]  The State concedes, and we acknowledge, that it improperly scored Delgado a net of seven additional points when it miscounted the number of first and second degree felonies.

Second, Delgado also argues that the trial court improperly allowed eight victim injury points for alleged victim Jose Luis Goyriena, although the charging document never accused Delgado of any crime against the person of Goyriena. Erroneous assessment of victim injury points is cognizable in a 3.800(a) motion and can be raised at any time as long as the error is discernible from the face of the record. See Chapman v. State, 885 So. 2d 475, 476-77 (Fla. 5th DCA 2004); Daum v. State, 544 So. 2d 1035, 1036 (Fla. 2d DCA 1989). Here, the information alleged no physical contact with or injury to Goyriena, as it alleged no crime against his person, and therefore it was improper for the court to assess the eight victim injury points as to Goyriena.

The trial court, however, denied Delgado’s 3.800 motion and did not attach any portions of the record that would conclusively refute Delgado’s claims. Thus, the trial court should have either granted the motion or attached the relevant portions of the record. A deduction of the  [*4]  eight victim injury points, plus the seven points from the scoresheet miscalculation, would place Delgado in a lower sentencing range.

We now address the validity of the trial court’s reason for departure. Florida courts have held invalid the departure reason the trial court gave here, that the crime was carried out in a “sophisticated, professional, organized, planned” manner. See State v. Fletcher, 530 So. 2d 296, 297 (Fla. 1988); Collins v. State, 535 So. 2d 661, 662 (Fla. 3d DCA 1988) (finding “professional manner” not a valid departure reason because it was inherent component of crime). In Fletcher, the Florida Supreme Court stated that an “inherent component” of the crime in question can never be used to justify a guidelines departure. Fletcher, 530 So. 2d at 297. Where a crime inherently involves premeditation and planning, the planned and calculated manner in committing the crime is not a valid departure reason. Id. Thus, the planning necessary to carry out a crime is an inherent component of that crime, even if it is not a statutory element. A home invasion robbery of the type that occurred in this case — where several victims allegedly were held hostage over several hours  [*5]  — could not have occurred without planning and premeditation.

Furthermore, we are aware that the validity of a departure reason is not cognizable on a rule 3.800(a) motion. See Wright v. State, 911 So. 2d 81, 83-85 (Fla. 2005); see also Concepcion v. State, 944 So. 2d 1069, 1071 (Fla. 3d DCA 2006); Wood v. State, 867 So. 2d 590, 592 (Fla. 5th DCA 2004). However, this general rule appears to be in conflict with Rule 3.800(a), which permits scoresheet errors discernible on the face of the record, like the scoresheet errors raised here, to be corrected at any time. For this reason, a court may consider the validity of the departure reason on a 3.800(a) motion when the issue is inextricably tied to the harmfulness of a scoresheet error. Indeed, the Florida Supreme Court has deviated from this general rule and considered the validity of departure reasons in a 3.800(a) challenge to a scoresheet error. See State v. Lemon, 825 So. 2d 927, 928 (Fla. 2002); see also Squires v. State, 891 So. 2d 600 (Fla. 2d DCA 2005) (where the district court likewise addressed the validity of departure reasons on a 3.800(a) motion).

We do not believe that Isom v. State, 915 So. 2d 183 (Fla. 3d DCA 2005), requires  [*6]  affirmance here. In that case, we held that a claim that departure reasons were inadequate does not render a sentence illegal for purposes of Florida Rule of Criminal Procedure 3.800(a). Isom, 915 So. 2d at 184. The defendant in Isom, however, raised a factual issue regarding his “escalating pattern of criminal conduct,” an issue which could only have been pursued under Rule 3.850, Florida Rules of Criminal Procedure, and was therefore time barred. Isom, 915 So. 2d at 184. This is unlike Delgado’s challenge to the departure reason which involves a purely legal question and is combined with a guidelines scoresheet error.

Additionally, subsection 921.001(5), Florida Statutes (1987), does not require affirmance. Subsection 921.001(5) provides that a “departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure.” The trial court in this case, however, provided a single departure reason which was invalid as a matter of law at the time during which Delgado received his sentence.

We therefore hold that where, as here, there is both an error in the guidelines scoring and  [*7]  an invalid departure reason, the defendant should be resentenced.

Reversed and remanded.

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STATE OF FLORIDA, Appellant, v. GARY GREAUX, Appellee.

No. 4D07-1662

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

January 30, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward Garrison, Judge; L.T. Case No. 2007CF000346AXX.

COUNSEL:   Bill McCollum, Attorney General, Tallahassee and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.

JUDGES:   MAY, J. STONE and POLEN, JJ., concur.

OPINION BY:   MAY

OPINION  

MAY, J.

The State appeals the trial court’s sua sponte dismissal of domestic violence charges against the defendant. It argues the trial court erred in sua sponte dismissing the charges. We agree and reverse.

The State charged the defendant with two counts of domestic violence against his wife: (1) domestic aggravated assault with a deadly weapon; and (2) domestic battery. The charges arose out of an incident in which the defendant allegedly threw the victim’s cell phone at her while she was in bed and forcefully pushed her head into the pillow. He then threatened her with a stun gun, grabbed her by the ankle, and dragged her out of bed.

At the case disposition/discovery hearing, the prosecutor explained that a plea offer had been extended to the defendant and that the victim  [*2]  no longer wished to prosecute. The trial court had the victim sworn in. The victim admitted calling the police and making a statement, but denied that the defendant hit or threatened her. She denied asking to have the defendant arrested and informed the court that she did not want him prosecuted.

The State then questioned the victim. She admitted the defendant had thrown the cell phone at her and had used his hand to push her head into the pillow on their bed. She further admitted that the defendant went to the closet where he kept a stun gun. She told the trial court that she and the defendant were working on getting the family back together and didn’t want to go forward with the prosecution. The court then sua sponte dismissed the case “at the victim’s request.” The State objected to the dismissal; the trial court suggested that the prosecutor appeal.

The State argues that only the prosecutor has the authority to decide whether to go forward with the prosecution and that the trial court erred in sua sponte dismissing the case. We agree and reverse.

The prosecutor has the sole discretion to charge and prosecute criminal acts. McArthur v. State, 597 So. 2d 406, 408 (Fla. 1st DCA 1992).  [*3]  This discretion is not affected by a victim’s change in desire to prosecute. Id. It is not altered by a victim’s refusal to testify. State v. Bryant, 549 So. 2d 1155, 1155 (Fla. 3d DCA 1989). This discretion is inviolate “[n]otwithstanding the court’s belief that the best interests of the public and the parties would be served by dismissal.” State v. Wheeler, 745 So. 2d 1094, 1096 (Fla. 4th DCA 1999).

The defendant argues that the dismissal should be affirmed under the Tipsy Coachman doctrine because the State did not establish a prima facie case against him during the hearing. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999). This argument fails for two reasons.

First, the Rules of Criminal Procedure require that motions to dismiss be in writing, signed by the party or his attorney, served on the opposing side, and contain a certificate of service. Fla. R. Crim. P. 3.190(a). The rule further requires the motion to be brought prior to or at arraignment and “state the ground or grounds on which it is based.” Id. at 3.190(a), (b), (c). Here, there was no motion at all, either written or ore tenus.

Second, without a timely, written motion, the State was neither  [*4]  on notice nor required to bear the burden of establishing a prima facie case at the hearing. Nevertheless, the State did elicit testimony from the victim that she had made a statement to the police and that the defendant had thrown the cell phone at her, forced her head into a pillow, and went to the closet to get a stun gun. Had the State been properly placed on notice by a written motion, it may have called other witnesses in support of its prima facie case.

For these reasons, we reverse and remand the case for reinstatement of the charges against the defendant.

Reversed and remanded.

STONE and POLEN, JJ., concur.

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RICHARD ALLEN WHITE, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-3027

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

January 30, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Peter M. Weinstein, Judge; L.T. Case No. 04-4292 CF10A.

COUNSEL:   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   WARNER, J. FARMER, J., and CONNER, BURTON C., ASSOCIATE JUDGE, concur.

OPINION BY:   WARNER

OPINION  

WARNER, J.

In his appeal from his convictions for attempted murder and robbery with a weapon, appellant claims that the charging document was fundamentally flawed, as the state charged him with attempted felony murder, which is not a crime. He did not object to the information, however, which also charged him with attempted first-degree murder. As the case was actually tried on that charge, we conclude that the fundamental error doctrine does not apply and affirm his conviction for attempted murder. He also contends that the court should have granted a judgment of acquittal as to the robbery charge. We reverse the robbery conviction, as the evidence was insufficient to sustain the conviction.

The victim, Glen Moore, left a bar in the early morning  [*2]  hours and was accosted in the parking lot of the bar. Someone in a group of people grabbed an aluminum bat and began beating Moore. He begged them to stop, telling them to take his wallet which contained $ 17.00. The beating continued, and he was dragged along the ground and thrown into the trunk of a car. When the car stopped, three or four people pulled him out of the trunk, dragged him along the ground, and one kicked him in the face. At this point, his assailants left. Moore next remembers calling for help and trying to crawl. Someone approached and pointed a flashlight in his face. He realized it was a police officer. Crime scene investigators secured the scene. Moore’s wallet could not be located.

The police observed appellant White walking his dog close to the scene. One of the officers engaged White in conversation and noticed blood on him. Because White had an outstanding warrant, the police arrested him. Blood tests on White’s clothing revealed a match for Moore’s blood. He was then charged in connection with the assault on Moore.

With respect to the attempted murder charge, the information alleged that:

RICHARD ALLEN WHITE . . . did unlawfully attempt to commit murder in the  [*3]  first degree in that Richard Allen White, while engaged in the perpetration of or the attempted perpetration of the crime of Robbery, did cause great bodily harm to Glen Moore, a human being, by intentionally kicking and striking him repeatedly which could have caused the death of the said Glen Moore, contrary to F.S. 782.04(1)(a), F.S. 777.011, F.S. 777.04(1) and F.S. 812.13(2)(c).

Section 782.04(1)(a), Florida Statutes, defines murder in the first degree as the “unlawful killing of a human being: 1. When perpetrated from a premeditated design to effect the death of the person killed or any human being” or “2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate” a robbery. Section 777.04(1), Florida Statutes, provides, “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt . . . .” Section 812.13(2)(c) provides the elements of the crime of robbery.

White never objected to the information, and, without objection, the court instructed the jury  [*4]  on the definition of attempted first-degree premeditated murder, pursuant to 782.04(1)(a) and 777.04, on count I and robbery with a weapon on count II. The jury found White guilty as charged in both counts. White appeals his conviction and sentences.

White argues for the first time on appeal that he was charged with and convicted of the non-existent crime of attempted felony murder in count I. Alternatively, because the state did not effectively charge White with attempted felony murder, White’s due process rights were violated.

A defendant can challenge the validity of a charging document for the first time on appeal in certain circumstances. In Moore v. State, 924 So. 2d 840, 841 (Fla. 4th DCA 2006), we held, “A conviction for a non-existent crime is fundamental error that can be raised at any time . . . .” In addition, “a conviction on a charge not made by the indictment or information,” even if valid under Florida law, “is a denial of due process of law” and “is a defect that can be raised at any time-before trial, after trial, on appeal, or by habeas corpus.” State v. Gray, 435 So. 2d 816, 818 (Fla. 1983). This holding is reiterated by Florida Rule of Criminal Procedure 3.610(a)  [*5]  which permits the court to grant a motion in arrest of judgment when “[t]he indictment or information on which the defendant was tried is so defective that it will not support a judgment of conviction.” “The reason for this provision is to discourage defendants from waiting until after a trial is over before contesting deficiencies in charging documents which could have easily been corrected if they had been pointed out before trial.” DuBoise v. State, 520 So. 2d 260, 264 (Fla. 1988).

White argues that the information charged him with attempted felony murder, which is not a crime. See State v. Gray, 654 So. 2d 552 (Fla. 1995). However, the holding in Gray was superseded by section 782.051, Florida Statutes, which makes “attempted felony murder” a crime. Assuming White’s interpretation of the information is accurate, namely that the information charged White with attempted felony murder, he was not charged with a non-existent crime in light of section 782.051.

White also claims that the defective information violated his due process rights, because he was convicted of a crime not charged in the information. Although conviction of a crime not charged in the information may be a denial  [*6]  of due process and fundamental error,

the failure to include an essential element of a crime does not necessarily render an indictment so defective that it will not support a judgment of conviction when the indictment references a specific section of the criminal code which sufficiently details all the elements of the offense.Fulcher v. State, 766 So. 2d 243, 244-45 (Fla. 4th DCA 2000). The information charging White included the statutes which set forth the crimes of both attempted premeditated murder and attempted felony murder. Because the information in this case “references a specific section of the criminal code,” namely, sections 782.04(1)(a) and 777.04(1), “which sufficiently detail[] all the elements of the offense,” the state provided White with sufficient notice to prepare his defense. Fulcher, 766 So. 2d at 244-45.

Finally, any defect in the information did not prevent White from a defense at trial. Both the prosecution and the defense tried the case as an attempted premeditated murder case, and the court instructed the jury on attempted premeditated murder. We conclude that no fundamental error occurred and affirm his conviction for attempted murder.

As to the conviction  [*7]  for robbery, we conclude that the evidence was insufficient to support the conviction. In the information, White was charged with violating section 812.13(1), (2)(b), Florida Statutes (2004), which provides:

“Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

. . . .

If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

On appeal, this court’s concern is “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.” Sigler v. State, 805 So. 2d 32, 34 (Fla. 4th DCA 2001) (quoting Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981)). In addition, the “appellate court undertakes a de novo review of the sufficiency of the  [*8]  evidence to support the verdict.” Id.

The state presented circumstantial, rather than direct, evidence that a robbery occurred. The victim testified that he possessed a wallet containing $ 17.00 before the incident, and an officer testified that the victim did not have a wallet when discovered. Arguing that this evidence was insufficient to support a robbery charge, White moved for a judgment of acquittal; however, the court denied this motion.

“When the evidence against a criminally accused person is circumstantial, a motion for judgment of acquittal should be granted if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Brothers v. State, 853 So. 2d 1124, 1125 (Fla. 5th DCA 2003). See also Sanders v. State, 344 So. 2d 876, 876-77 (Fla. 4th DCA 1977) (“circumstantial evidence must be so strong and convincing as to exclude every reasonable hypothesis except the defendants’ guilt and must exclude any reasonable hypothesis of the defendants’ innocence”). However, the evidence must be viewed in the light most favorable to the state. Bryant v. State, 789 So. 2d 1042, 1043 (Fla. 4th DCA 2001).

The state asserts that the facts  [*9]  in this case are the same as those in Ferguson v. State, 417 So. 2d 631 (Fla. 1982), superseded by statute on other grounds as stated in Merck v. State, 763 So. 2d 295 (Fla. 2000), wherein the court upheld the robbery charge. Ferguson was found guilty of two counts of first-degree murder, one count of robbery, and several other crimes. One victim, Brian Glenfeld, was discovered behind the wheel of his car and the other, Belinda Worley, was discovered in a wooded area nearby. Glenfeld’s father testified that when the two left the house earlier that evening, he saw that Belinda was wearing two rings, a gold bracelet, and a pair of earrings and that Brian had a wallet containing some cash. Belinda was no longer wearing any of this jewelry when found and her earlobe was torn, presumably when the earring was taken. In addition, Brian’s wallet was found empty in Belinda’s purse a few feet from her body.

The court denied defendant’s motion for judgment of acquittal and the jury found him guilty on both counts. The defendant argued that because the bodies were left in a wooded area overnight, a passerby could have taken the jewelry and money. On appeal, the supreme court applied the following  [*10]  principal: “In circumstantial evidence cases the evidence must not only be consistent with guilt but also be inconsistent with any reasonable hypothesis of innocence.” Id. at 635. Applying this rule to the facts, the court held, “We agree with the state that this is not a reasonable hypothesis of innocence: there was evidence that the jewelry was taken with some degree of violence; it rained very hard that night; and the bodies were found just a few hours after sunrise.” Id.

White, on the other hand, argues that the underlying facts are similar to those in Sanders v. State, 344 So. 2d 876 (Fla. 4th DCA 1977). In Sanders, the victim exited a bar with a wallet containing forty dollars in his back pocket. The defendants walked behind him and helped him to his feet when he stumbled. Subsequently, the victim discovered his wallet was missing. Several witnesses provided conflicting testimony regarding the incident. One saw the defendants take something from the victim’s pocket and throw it in a canal, another thought he saw the defendants pick the victim’s pocket but later said all he saw was a downward movement of one defendant’s hand, another saw the defendants take something from the victim’s  [*11]  front pocket. The victim first said no one reached into his pocket but later said his pockets were searched by the defendants. The police searched the defendants and a nearby canal but failed to find the victim’s missing wallet or money. Although the state presented evidence that the victim’s wallet was present before the incident and missing after, therefore raising the inference that it was taken by the defendant, we held that the evidence was still insufficient to exclude every reasonable hypothesis except that of guilt. Id. at 876-77.

We believe that this case is more like Sanders than Ferguson. The state’s evidence that a robbery occurred consisted of Moore’s testimony that he had his wallet on him before the attack, and an officer’s testimony that the wallet was missing when he first found Moore. Moore’s memory of the day in question is vague, in part because he drank heavily and in part because of the extent of his injuries. He testified that when attacked, he had his wallet and believed it contained seventeen dollars. Like Sanders, the police in this case never discovered Moore’s empty wallet. Unlike Sanders, where the state presented several witnesses who testified to observing  [*12]  the defendants take something from the victim’s pocket, the state could not present any witnesses and could merely assert that Moore had his wallet before the incident and did not have it afterwards. It is equally plausible, assuming Moore had the wallet when he was attacked, that it fell out of his pocket as he was being dragged by White and the other attackers. There is simply no legally sufficient evidence to show that White took the wallet. We thus reverse his conviction for robbery with a weapon.

Affirmed in part, reversed in part, and remanded to vacate the conviction for robbery with a weapon.

FARMER, J., and CONNER, BURTON C., ASSOCIATE JUDGE, concur.

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MARCOS SEGURA, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-3642

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

January 30, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey Levenson, Judge; L.T. Case No. 05-4464 CF10A.

COUNSEL:   Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Julie D. Lindahl, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   WARNER, J. FARMER and GROSS, JJ., concur.

OPINION BY:   WARNER

OPINION  

WARNER, J.

Marcos Segura was charged by information with second-degree murder for the fatal stabbing of his father, Marcos Segura, Sr. He claimed self-defense. The jury convicted him as charged and he appeals, raising several trial court errors. These include the admission of gruesome photographs, permitting an officer to testify regarding blood stain evidence, and fundamental error with respect to the jury instructions on self-defense. We affirm on all issues.

Segura argues that the trial court erred in admitting numerous, oversized, redundant, and gruesome photographs into evidence, as they were prejudicial and distracted the jury from a fair consideration of the evidence in reaching its verdict. He claims that this error was harmful. State v. DiGuilio, 491 So. 2d 1129, 1137 (Fla. 1986);  [*2]  Walker v. State, 665 So. 2d 1070 (Fla. 4th DCA 1995). The state counters that the photographs provided relevant evidentiary value tending to prove and disprove material facts, and that the photographs corroborated testimony.

“The admission of photographic evidence of a murder victim is within the sound discretion of the trial court, and absent abuse, the trial judge’s ruling will not be disturbed on appeal.” England v. State, 940 So. 2d 389, 399 (Fla. 2006). See also Zack v. State, 911 So. 2d 1190, 1209 (Fla. 2005) (a trial court’s ruling on the admission of photographic evidence will not be disturbed on appeal unless there is a showing of clear abuse of discretion). Photographs are relevant when they establish the manner in which the murder was committed, show the position and location of the victim as found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived. Douglas v. State, 878 So. 2d 1246, 1255 (Fla. 2004). Similarly, this court has stated that photographs are relevant where they “bear on the issues of the nature and extent of injuries, the nature and force of the violence used, premeditation or intent . . . .” Grey v. State, 727 So. 2d 1063, 1065 (Fla. 4th DCA 1999).

Although  [*3]  we note that Segura did not object to most of the admitted photographs of which he now complains, we nevertheless conclude that, even if the issue had been properly preserved, the admission of the photographs was not an abuse of discretion. They were admitted to assist in explaining the position and location of the body and the reconstruction of the crime scene. They were also useful in the medical examiner’s explanation of the wounds on the body.

In his second issue on appeal, Segura complains of the admission of the detective’s expert testimony on blood stain evidence, claiming that the detective was not properly qualified to offer the testimony that he did. The trial court did not abuse its discretion in permitting the testimony. See Anderson v. State, 863 So. 2d 169, 179-80 (Fla. 2003). Nor do we agree with Segura’s contention that the prosecutor’s questioning was more prejudicial than probative.

Finally, Segura argues that the jury instruction on self-defense was misleading and confusing, because Segura was in his own home and the father was a co-occupant. The state maintains the trial court did not abuse its discretion in instructing the jury as to both a duty to retreat and an  [*4]  absence of that duty, where the jury was thoroughly explained its application in the context of co-occupants, and the state did not exploit the conflicting instruction. Weiand v. State, 732 So. 2d 1044 (Fla. 1999).

We have previously rejected the argument that the reading of both instructions on the duty to retreat and the absence of a duty to retreat is confusing. See Liotta v. State, 939 So. 2d 333, 334 (Fla. 4th DCA 2006); Dias v. State, 812 So. 2d 487, 492 (Fla. 4th DCA 2002); Wilson v. State, 707 So. 2d 1200, 1201 (Fla. 4th DCA 1998). Accord Barnes v. State, 922 So. 2d 380 (Fla. 1st DCA 2006), quashed on other grounds, 970 So. 2d 332, 32 Fla. L. Weekly S770 (Fla. 2007); Wiggins v. State, 792 So. 2d 642 (Fla. 1st DCA 2001). We likewise reject Segura’s contention in this case.

The trial court did not abuse its discretion in any of the rulings raised on appeal. We therefore affirm Segura’s conviction and sentence.

FARMER and GROSS, JJ., concur.

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ANTHONY SMALLS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-6464

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

January 28, 2008, 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 Duval County. L. P. Haddock, Judge.

COUNSEL:   Anthony Smalls, Pro se, Appellant.

Bill McCollum, Attorney General, Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   WEBSTER, BENTON, and POLSTON, JJ., CONCUR.

OPINION  

PER CURIAM.

Appellant seeks review of the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for further proceedings.

Pursuant to a guilty plea, appellant was sentenced as an habitual felony offender to 15 years in prison for burglary of a dwelling, concurrent with one year in prison for battery. In his motion, appellant raised several claims. We affirm without discussion the summary denial of all except the claim that his guilty plea was involuntary because his counsel advised him to enter the plea to burglary of a dwelling when no factual basis existed to support the charge. Specifically, appellant alleges that, had his counsel been aware of the definition of a dwelling, he would have known that the detached garage involved in appellant’s crime did not qualify as a dwelling. Appellant further alleges that, had his counsel properly  [*2]  advised him regarding the elements of burglary of a dwelling, he would not have entered a plea.

Before appellant entered his plea, the state offered its factual basis, which included the representation that appellant broke into a detached garage in the victim’s enclosed yard. Unfortunately, appellant was not asked whether the state’s recitation of the facts was accurate. A detached garage may qualify as part of a dwelling if the yard is “substantially enclosed.” See McAllister v. State, 859 So. 2d 611 (Fla. 1st DCA 2003). However, appellant has alleged that the victim’s yard was not “substantially enclosed” and that, as a result, the garage did not qualify as part of a dwelling. The portions of the record attached by the trial court to its order do not establish that the yard was, in fact, “substantially enclosed.” If appellant’s allegation is correct, no factual basis existed to support a conviction for burglary of a dwelling. Appellant further claims that he would not have entered his guilty plea but for his counsel’s ineffectiveness. As such, appellant’s allegations constitute a facially sufficient claim for ineffective assistance of counsel. See Brazeail v. State, 821 So. 2d 364, 367-68 (Fla. 1st DCA 2002)  [*3]  (stating that the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is satisfied when the defendant states that, but for counsel’s errors, he would not have pleaded guilty); Sassnett v. State, 838 So. 2d 650, 652 (Fla. 1st DCA 2003) (reversing a summary denial of a rule 3.850 claim for ineffective assistance of counsel because defense counsel appeared to have been unfamiliar with the elements of burglary of a dwelling).

We reverse the summary denial of that portion of appellant’s motion that claims his attorney was ineffective because the attorney advised him to enter a plea to burglary of a dwelling when no factual basis existed to support that charge. Should the trial court again summarily deny this claim on remand, it shall attach to the order such portions of the record as conclusively show that appellant is entitled to no relief; otherwise, it shall hold an evidentiary hearing. In all other respects, the order is affirmed.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, BENTON, and POLSTON, JJ., CONCUR.

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MARTIN COLOMBO, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D 07-2452

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

January 28, 2008, 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 Clay County. William A. Wilkes, Judge.

COUNSEL:   Martin Colombo, Pro se, Appellant.

Bill McCollum, Attorney General, Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   WEBSTER, BENTON, and POLSTON, JJ., CONCUR.

OPINION  

PER CURIAM.

Appellant seeks review of the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse, and remand for further proceedings.

Following a guilty plea, appellant was sentenced to 15 months in prison for lewd and lascivious molestation. In his rule 3.850 motion, appellant alleged that he received ineffective assistance of counsel when his defense attorney advised him that his plea would not subject him to civil commitment pursuant to the Jimmy Ryce Act.

To state a facially sufficient claim of ineffective assistance of counsel, appellant’s burden was to demonstrate that his counsel’s performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because, without the conduct, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);  [*2]  Spencer v. State, 842 So. 2d 52, 61 (Fla. 2003); Cherry v. State, 659 So. 2d 1069, 1072 (Fla. 1995); Betts v. State, 792 So. 2d 589, 589-90 (Fla. 1st DCA 2001). Appellant met his burden by stating that he was given affirmative misadvice that entering a plea would not subject him to civil commitment pursuant to the Jimmy Ryce Act and that, but for this misadvice, he would not have entered his plea.

The trial court denied the motion, stating that appellant’s attorney was not required to inform appellant of the collateral consequences of the plea, including the application of the Jimmy Ryce Act. However, affirmative misadvice of counsel regarding the collateral consequences of entering a plea can constitute ineffective assistance of counsel and provide a basis for withdrawing a plea. See, e.g., State v. Sallato, 519 So. 2d 605 (Fla. 1988) (remanding to the trial court to determine whether the appellant was given misadvice about the effect his guilty plea would have on becoming a United States citizen); Watrous v. State, 793 So. 2d 6 (Fla. 2d DCA 2001) (remanding to the trial court to determine whether the appellant was given affirmative misadvice that after his plea he would be released  [*3]  on time already served). Furthermore, civil commitment of sexual predators is considered a collateral consequence of entering a plea to a qualifying offense. See Watrous, 793 So. 2d at 8-10.

Because appellant stated a facially sufficient claim of ineffective assistance of counsel and the trial court denied the motion without attaching portions of the record that conclusively refuted the claim, we reverse the summary denial of appellant’s motion. On remand, should the trial court elect again summarily to deny appellant’s claim, it shall attach to its order those portions of the record that demonstrate conclusively that appellant’s claim is without merit; otherwise, it shall hold an evidentiary hearing.

REVERSED and REMANDED, with directions.

WEBSTER, BENTON, and POLSTON, JJ., CONCUR.

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BENNY MORTON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-4294

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

January 25, 2008, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Lake County, G. Richard Singeltary, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.

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

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

OPINION BY:   EVANDER

OPINION  

EVANDER, J.

Morton was convicted, after a jury trial, of sale of cocaine. The State’s primary witness was a confidential informant who had agreed to provide assistance to law enforcement after his own arrest for possession of cocaine. The confidential informant testified that he purchased two pieces of crack cocaine from Morton. The transaction occurred at a street corner with the confidential informant remaining in his car. The police officers supervising the confidential informant were not close enough to the intersection to observe the actual exchange. Although the confidential informant wore a wire, the recorded conversation was largely inaudible or indiscernible. The money allegedly given to Morton by the confidential informant was not recovered as Morton was not arrested until a later date.

During the confidential informant’s  [*2]  testimony, the following colloquy occurred:

PROSECUTOR: Can you tell the jury a little bit about how it came about that you thought you could buy some drugs from this particular person?

WITNESS: It was very clear that, you know [Morton] was selling drugs locally, and a lot of folks knew that, and I was able to have contact. . .Defense counsel immediately objected and, out of the presence of the jury, moved for a mistrial. The trial court declined to grant a mistrial, instead instructing the jury to disregard the witness’ answer. Morton renewed his motion for mistrial at the close of the State’s case and immediately prior to closing arguments.

The sole issue on appeal is whether the trial court erred in denying Morton’s motion for mistrial. The standard of review for a denial of a motion for mistrial is abuse of discretion. Goodwin v. State, 751 So. 2d 537 (Fla. 1999). A motion for mistrial should be granted when it is necessary to ensure that a defendant receives a fair trial. Power v. State, 605 So. 2d 856 (Fla. 1992), cert. denied, 507 U.S. 1037, 113 S. Ct. 1863, 123 L. Ed. 2d 483 (1993). When a jury is improperly informed of a defendant’s prior criminal activity, a curative instruction has frequently been found to be  [*3]  insufficient to preserve a defendant’s right to a fair trial. See, e.g., Coverdale v. State, 940 So. 2d 558 (Fla. 2d DCA 2006) (mistrial should have been granted after witness improperly commented that defendant had previously tried to molest witness’ daughter); Brooks v. State, 868 So. 2d 643 (Fla. 2d DCA 2004) (mistrial should have been granted after witness improperly commented that defendant had been “sent back to prison”); Henderson v. State, 789 So. 2d 1016 (Fla. 2d DCA 2000) (mistrial should have been granted after witness improperly commented that it appeared that defendant had committed prior robberies); Cornatezer v. State, 736 So. 2d 1217 (Fla. 5th DCA 1999) (mistrial should have been granted after witness improperly commented that defendant was convicted felon).

Here, the witness improperly advised the jury that “a lot of folks” knew that Morton was a drug dealer. Evidence that a defendant has previously committed a similar crime is particularly prejudicial because of the risk that a juror will be predisposed to believe that the defendant is guilty of the charged offense. Nickels v. State, 90 Fla. 659, 106 So. 479, 488 (Fla. 1925). A curative instruction was simply insufficient to “unring  [*4]  the bell.” Cornatezer, 736 So. 2d at 1218-19.

REVERSED and REMANDED for a new trial.

GRIFFIN and ORFINGER, JJ., concur.

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SEAN JOSEPH MONTANYE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-829

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

January 25, 2008, Opinion FiledPRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Marion County, William T. Swigert, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   PALMER, C.J. GRIFFIN and SAWAYA, JJ., concur.

OPINION BY:   PALMER

OPINION  

PALMER, C.J.,

Sean Montanye (defendant) appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of felony battery. Determining that unobjected-to improper comments made by the prosecutor during his closing argument do not rise to the level of fundamental error, we affirm. However, we write to address the impropriety of the prosecutor’s comments.

The defendant was charged with committing the crime of felony battery. The charges arose out of a fight that occurred at a party between the defendant and the victim, who was an off duty policemen and an invited guest to the party. The victim was severely injured as a result of the fight.

During the trial, several eyewitnesses testified that the defendant had committed the battery. Thereafter, the defendant’s brother,  [*2]  Josh Montanye, took the stand and testified that he, not the defendant, had committed the battery. On cross-examination, Josh acknowledged the fact that he was aware that the statute of limitations on the crime had already expired.

During his closing argument, the prosecutor made several statements which the defendant argues were improper. Defense counsel only objected to one of the comments and that objection was sustained and led to the issuance of a curative instruction. Accordingly, as to all of the other statements, appellate relief is only available if the unobjected-to comments rose to the level of fundamental error. See Merck v. State, 32 Fla. L. Weekly S789, 2007 Fla. LEXIS 2271 (Fla. Dec. 6, 2007). Fundamental error has been defined as being error which “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla. 1996)(quoting State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991)). See also Capron v. State, 948 So.2d 954, 956-957 (Fla. 5th DCA 2007).

Our review of the record leads us to the conclusion that several of the statements made by the prosecutor  [*3]  were indeed improper. For example, at one point during his argument, the prosecutor stated: “If Josh Montanye is lying, Sean is guilty. Josh Montanye is lying. Josh Montanye is lying, and he is doing it to get you all to buy it.” This comment not only improperly expressed the prosecutor’s personal opinion about the credibility of a witness, but also attempted to improperly shift the burden of proof to the defense (since simply proving that Josh Montanye was lying would not meet the State’s burden of proving the case of Sean’s guilt beyond a reasonable doubt). See Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998)(condemning a prosecutor’s closing statement because it “enunciated an erroneous and misleading statement of the State’s burden of proof because it improperly asked the jury to determine whether Gore was lying as the sole test for determining the issue of his guilt.”).

In Gore, our supreme court further noted that it is improper for a prosecutor to “engage in vituperative or pejorative characterizations of a defendant or witness.” Id. at 1201. Such was done by the prosecutor in this case when he demeaned the defendant’s defense by stating: “I was expecting them to say that the  [*4]  sun was in their eyes and the dog ate their homework.” The most egregious comment along these lines occurred when the prosecutor was discussing why Josh Montanye’s wife, who was present during the altercation, was not called as a witness by the defense. He stated: “Maybe one perjurer in the family was enough.”

Upon careful review of the instant record we conclude that the prosecutor’s improper statements do not rise to the level of fundamental error; however, we admonish the prosecutor that such comments are improper.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

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