Florida Criminal Law Opinions

P.N., a juvenile, Appellant, vs. The State of Florida, Appellee.

No. 3D06-3185

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

February 27, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court for Monroe County, Sandra Taylor, Judge. Lower Tribunal No. 06-211.

COUNSEL:   Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.

JUDGES:   Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.

OPINION BY:   LAGOA

OPINION  

LAGOA, Judge.

P.N., a juvenile, appeals his adjudication of delinquency based upon consumption or possession of an alcoholic beverage on a public or semi-private area in violation of Monroe County ordinance 2.1-5(b). Because we find that the State failed to present evidence to find P.N. delinquent of consumption or possession of alcohol, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

While on a patrol boat in an area known as Marvin Key, Officer Shuster, through a pair of binoculars, saw P.N. on the beach holding a Budweiser beer bottle. Upon noticing Officer Shuster, P.N. slid the bottle under his leg. Officer Shuster proceeded to move his patrol boat closer to the shore where P.N. was seated and ordered him to board the boat. While P.N. initially ignored Officer Shuster’s order, he eventually complied, but failed to bring the beer  [*2]  bottle with him as he boarded the patrol boat. Instead, one of P.N.’s peers retrieved the beer bottle for the officer. Officer Shuster testified that the bottle was full of sand and salt water upon his receipt, and he discarded the beer bottle at the end of his shift. At no time did P.N. admit that the beer bottle contained alcohol while in his possession.

The State charged P.N. with possession of alcohol by a minor. At the end of the State’s case, the defense moved for a judgment of dismissal on the ground that the State failed to present any evidence that the beer bottle contained alcohol. The trial court denied the motion and this appeal ensued.

II. STANDARD OF REVIEW

“The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case.” A.P.R. v. State, 894 So. 2d 282, 284 (Fla. 5th DCA 2005). n1 As such, in reviewing a trial court’s denial of a motion for judgment of dismissal, a de novo standard of review applies. Id. at 285. While the evidence must be viewed in the light most favorable to the State, if the State fails to present sufficient evidence to establish a prima  [*3]  facie case of the crime charged, then a judgment of dismissal is proper. E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d DCA 2003).

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Florida Rule of Juvenile Procedure 8.110(k) states:

If at the close of evidence for the petitioner, the court is of the opinion that the evidence is insufficient to establish a prima facie case of guilt against the child, it may, or on the motion of the state attorney or the child shall, enter an order dismissing the petition for insufficiency of the evidence.
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III. ANALYSIS

On appeal, P.N. argues that the trial court erred by failing to grant his motion for judgment of dismissal because the State failed to present competent, substantial evidence that P.N. possessed an open container of alcohol. To prove possession, the State must show that the defendant possessed a certain substance, that the substance was illegal, and that the defendant had knowledge of the presence of the substance. See S.C.S. v. State, 831 So. 2d 264 (Fla. 1st DCA 2002 (judgment and sentence reversed because the State presented insufficient evidence to establish a prima facie case for possession of alcohol by a minor). To establish a prima facie case that a substance is alcoholic or illegal,  [*4]  a juvenile’s own admission will suffice, as well as testimony of an experienced police officer. See J.B. v. State, 705 So. 2d 1376, 1379 (Fla. 1998); A.A. v. State, 461 So. 2d 165, 166 (Fla. 3d DCA 1984).

Here, the State failed to present any evidence that the contents of the bottle possessed by P.N. contained alcohol. P.N. did not make any statement to law enforcement admitting that the bottle contained alcohol. Moreover, Officer Shuster testified that when the beer bottle was recovered, it was full of sand and salt water. Although Officer Shuster testified that he approached P.N. because he was holding a beer bottle, Officer Shuster did not testify that he saw P.N. drinking from the beer bottle or that the contents of the bottle were alcoholic. As the State conceded during oral argument, it is not illegal for a minor to possess a beer bottle that contains no alcohol.

Accordingly, because the State failed to provide any evidence that the contents of the bottle possessed by P.N. contained alcohol, we reverse the adjudication of delinquency. We decline to address the remaining issue raised on appeal.

Reversed and remanded.

Courtesy of David Edelstein

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DEREK THOMAS CHAPMAN, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-548

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 27, 2008, DecidedNOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert A. Hawley and Dan L. Vaughn, Judges; L.T. Case No. 312006MH000066A.

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

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

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

OPINION BY:   WARNER

OPINION  

WARNER, J.

Appellant, Derek Chapman, timely appeals the assessment of costs and fees against him associated with the state’s prosecution of him under the Involuntary Civil Commitment of Sexually Violent Predators Act, also known as the Jimmy Ryce Act. He argues that there is no authority for the assessment of costs and fees. We agree and reverse.

The state sought involuntary commitment of Chapman to the custody of the Department of Children and Families as a sexually violent predator pursuant to the Jimmy Ryce Act. See §§ 394.910-394.932, Fla. Stat. The court found Chapman indigent and appointed a public defender to represent him. After the jury verdict finding him to be a sexually violent predator and committing him to the DCF, the court assessed fees  [*2]  and costs in the amount of $ 18,514.37. Defendant appeals this assessment.

There is no statutory authority to impose costs and fees for a prosecution under the Sexually Violent Predators Act. In fact, the Department of Children and Family Services is responsible for all costs. § 394.929, Fla. Stat. Although a defendant is entitled to counsel, and the court is required to appoint counsel, there is no provision for a lien for repayment, as there is upon a criminal conviction. See § 938.29, Fla. Stat.

In the criminal law, “[i]t is well established that a court lacks the power to impose costs in a criminal case unless specifically authorized by statute.” Holmes v. State, 658 So. 2d 1185, 1186 (Fla. 4th DCA 1995) (quoting Williams v. State, 596 So. 2d 758, 758 (Fla. 2d DCA 1992)). While Jimmy Ryce proceedings are civil, the constitutional requirement of counsel is imposed because involuntary commitment triggers due process protections. See Hillsborough County v. Albrechta, 841 So. 2d 644 (Fla. 2d DCA 2003) (applying right to counsel to Marchman Act proceedings). Thus, the involuntary nature of the proceedings makes the counsel appointment similar to the appointment in criminal proceedings.  [*3]  Because of this, we apply Holmes and conclude that the trial court lacks the power to impose costs or fees in a Jimmy Ryce proceeding, because the authority to tax them as costs against the involuntarily committed defendant is not authorized by statute.

Reversed.

FARMER and GROSS, JJ., concur.

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ERNESTO CRUZ, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5749

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 27, 2008, 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; Judith Flanders, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   CASANUEVA, Judge. CANADY and LaROSE, JJ., Concur.

OPINION BY:   CASANUEVA

OPINION  

CASANUEVA, Judge.

Ernesto Cruz appeals his convictions and sentences stemming from a prosecution for two counts of forgery, two counts of uttering a forged instrument, petit theft, and grand theft. The charges were based on allegations that he stole two blank checks from his mother and stepfather, forged his stepfather’s signature on the checks, cashed one, and attempted to cash the other. The jury acquitted him of the forgery counts but found him guilty of the remaining charges. The trial court sentenced him to a split sentence, the length of which is not relevant here.

In this appeal, he raises four issues. We affirm his convictions and sentences. We find no merit in any of the arguments Mr. Cruz raises concerning the first three issues, and the fourth issue, an unpronounced special condition of probation, is controlled by this court’s  [*2]  recent case of Ladson v. State, 955 So. 2d 612 (Fla. 2d DCA), rev. denied, 968 So. 2d 557 (Fla. 2007).

Affirmed.

CANADY and LaROSE, JJ., Concur.

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KAREN COGAR, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-3879

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 27, 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; Dan L. Vaughn, Judge; L.T. Case No. 05-2056CF.

COUNSEL:   John A. Unruh, P.A., Vero Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   SHAHOOD, C.J., POLEN and MAY, JJ., concur.

OPINION  

PER CURIAM.

The defendant appeals an order denying a motion to withdraw her plea to possession of cocaine and drug paraphernalia charges. She argues that the trial court erred in denying the motion. We disagree and affirm, but remand the case to the trial court to correct a scrivener’s error on the scoresheet, which inaccurately reflects the maximum sentence allowable.

Affirmed.

SHAHOOD, C.J., POLEN and MAY, JJ., concur.

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STATE OF FLORIDA, Appellant, v. ERIC M. YOUNG, Appellee.

CASE NO. 1D06-5798

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

February 25, 2008, Opinion Filed

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Duval County. Henry E. Davis, Judge.
State v. Young, 2007 Fla. App. LEXIS 20515 (Fla. Dist. Ct. App. 1st Dist., Dec. 26, 2007)

COUNSEL:   Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellant.

Curtis S. Fallgatter of Fallgatter Farmand & Catlin, P. A., Jacksonville, for Appellee.

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

OPINION BY:   LEWIS

OPINION  

ON MOTION FOR REHEARING AND CERTIFICATION

LEWIS, J.

We deny the State’s motion for rehearing and certification. On our own motion, however, we withdraw our previous opinion and substitute the following.

The State of Florida seeks review of an order granting Eric Young’s motion to suppress evidence gathered during a warrantless search of his office and workplace computer, as well as statements obtained from him in a subsequent interrogation. Although Young did not personally consent to the search, the State contends that the search was reasonable under one or all of the following theories: (1) Young had no legitimate expectation of privacy in the office or computer, (2) church officials who consented to the search had authority to do so, and (3) the officers who conducted the search reasonably relied on the church officials’ apparent authority to consent. The State also  [*2]  contends that Young’s statements were not a product of the search and, therefore, should not have been suppressed in any event. We reject all of these contentions and affirm the order.

At the time of the search, Young was the pastor of Ft. Caroline United Methodist Church (“the church”), a local church under the supervision of the larger United Methodist Church (“the Church”). In the proceedings below, Richard Neal, a district superintendent of the Church, testified regarding the Church’s structure, as it related to Young’s employment. According to Neal’s testimony, the Church is divided into geographical sections known as conferences, and a bishop presides over each conference. Neal explained that bishops appoint pastors after consulting with district superintendents, who supervise the pastors and local churches within their districts. Neal further testified that the Church is governed in accordance with its Book of Discipline and that all pastors agree to be bound by this book when they are ordained.

Young’s church was relatively small, with only three full-time staff members: the pastor, a custodian, and a person who served as both the church administrator and the pastor’s secretary.  [*3]  Additionally, there was a body within the church known as the staff parish. The church administrator described the staff parish as “the human resources of the church,” or the personnel. Although the record is unclear as to the role or authority of the staff parish, the chairperson of staff parish relations testified via deposition that he was not Young’s boss or supervisor.

The church provided Young with a desktop computer and a private office. Although the computer was provided to Young for use in connection with his duties at the church, there was no official policy regarding the use of the computer or others’ access to it. Young’s computer was not networked to any other computer, and it was kept in his private office. This office had a special lock that could not be opened with the Church’s master key. Three keys to Young’s office existed. Young kept two of the keys, and the church administrator kept the third key, which she stored in a locked credenza drawer in her office.

According to Young’s testimony, a previous pastor had requested the special lock for the office door due to concerns about after-hours intruders. The church administrator testified that she regularly opened the  [*4]  door to Young’s office for the custodian and visiting pastors, who occasionally used the office to prepare sermons. However, the church administrator acknowledged that no one was permitted to enter the office without Young’s permission. Young testified to this fact himself and added that when he was absent from the office, even the church administrator’s access was limited to reasonable business purposes, such as “deliver[ing] paperwork for [him] to sign.” Young further testified that the church administrator was not permitted to log on to his computer when he was not physically present.

The events leading to the search of Young’s office and computer began when the church administrator received a call from the church’s Internet service provider. A representative from that company informed the church administrator that spam had been linked to the church’s Internet protocol address. In response to this call, the church administrator ran a “spybot” program on the church’s computers. She testified that when she ran the program on Young’s computer, she saw “some very questionable [w]eb site addresses.” The church administrator then contacted a member of the staff parish and an information  [*5]  technology (IT) person to set up a time to have the computer examined.

Later, the chairperson of staff parish relations, Kenneth Moreland, contacted Neal to inform him of the situation. After discussing the matter with the bishop and getting approval for the decision, Neal instructed Moreland to contact law enforcement officials and allow them to see the computer. The next morning Neal instructed Young not to return to the church until the two could meet and discuss the situation. When officers arrived at the church, Moreland unlocked Young’s office and signed “consent to search” forms for the office and computer. Young arrived at the church during the morning when the officers were there. Moreland and an officer instructed Young to leave the property immediately, and he complied.

The two officers who were involved in obtaining consent to search the office and computer testified at the suppression hearing. Both testified that at the time of the search, they understood Moreland to be a “representative of the church” whose authority to consent was based on instructions from a supervisor at the church. Neither of these officers spoke with Moreland’s supervisor or asked Moreland further  [*6]  questions about his authority before the search began. One officer testified that she had spoken directly with Neal after she was already inside Young’s office. At the time, she knew Neal had never used Young’s computer, did not work in Young’s office, and did not keep property there. Neal’s testimony at the hearing revealed the same information. Similarly, Moreland testified that he did not work in Young’s office and did not keep belongings there. However, Neal testified that he had authority to consent to the search and to instruct Young to stay away from the church under the Book of Discipline, by which Young had agreed to be bound when he was ordained.

After searching the office and computer, officers went to another location where Young was meeting with Neal. At that time, an officer advised Young of his Miranda rights, n1 and Young indicated he was willing to talk. During the interview, the officer showed Young a printout from his computer, which contained a list of Web sites Young had bookmarked. The transcript of the interview indicates that the officer was looking at the printout while questioning Young. During the course of the interview, Young made statements relevant to whether  [*7]  he had a subjective expectation of privacy in his office computer. In particular, when the officer asked, “You have no right to privacy on that computer?,” Young responded, “I suppose not . . . I hadn’t really thought about it.” The officer then stated, “It’s like me, . . . my laptop in my truck, if my boss says hand it over, he can look at anything that’s on there because it’s not mine.” Young replied, “I suppose technically you’re right.” He also made incriminating statements related to child pornography and signed a form giving the officers consent to search a “memory stick” found in his office. Young testified that during the interview, he understood that the officers had been in his office. Statements made by the officer during the interview are consistent with this testimony.

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Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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After two hearings, the trial court granted the motion to suppress, finding that, although Neal had authority to consent to the search under the Book of Discipline, he did not have authority to consent under the constitutions of the United States and Florida. The court concluded that the search and seizure was unlawful and that Young’s statements were a product  [*8]  of the unlawful search and seizure. Thus, the trial court held that the items seized in the search and the statements taken in the interview could not be used as evidence at trial.

We consider the Fourth Amendment issues presented in this case under the requirements of the Federal Constitution, as interpreted by the United States Supreme Court. See Art. I, § 12, Fla. Const.; State v. Butler, 655 So. 2d 1123, 1125 (Fla. 1995). We review the trial court’s factual findings to determine whether they are supported by competent substantial evidence, but its application of law to facts is reviewed de novo. See Williams v. State, 721 So. 2d 1192, 1193 (Fla. 1st DCA 1998). Recognizing that a trial court’s ruling on a motion to suppress is “clothed with the presumption of correctness,” we “interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to the trial court’s ruling.” McNamara v. State, 357 So. 2d 410, 412 (Fla. 1978).

To invoke the protection of the Fourth Amendment, a criminal defendant must establish standing by demonstrating a legitimate expectation of privacy in the area searched or the item seized. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).  [*9]  A legitimate expectation of privacy consists of both a subjective expectation and an objectively reasonable expectation, as determined by societal standards. Smith, 442 U.S. at 740. The reasonableness of an expectation of privacy in a particular place or item depends on context. O’Connor v. Ortega, 480 U.S. 709, 715, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987). Specifically, the reasonableness of an employee’s expectation of privacy in his or her office or the items contained therein depends on the “operational realities” of the workplace, id. at 717, and not on legal possession or ownership. Mancusi v. DeForte, 392 U.S. 364, 369, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). The likelihood that a person has an objectively reasonable expectation of privacy in an office setting is increased where the area or item searched is “reserved for [the defendant's] exclusive personal use.” See id. at 368. Other factors that have been considered in determining the legitimacy of an expectation of privacy in an item seized from an office include the employee’s relationship to the item, whether the item was in the employee’s immediate control when it was seized, and whether the employee took actions to maintain a sense of privacy in the item. United States v. Anderson, 154 F.3d 1225, 1232 (10th Cir. 1998).  [*10]  Many times, an employee may have a legitimate expectation of privacy in his or her personal office and in personal items stored in a desk or file cabinet. See O’Connor, 480 U.S. at 716-18.

Evaluation of an expectation of privacy in a workplace computer involves unique considerations, but as with any other item in the workplace, the evaluation should focus on the operational realities of the workplace. When a computer is involved, relevant factors include whether the office has a policy regarding the employer’s ability to inspect the computer, whether the computer is networked to other computers, and whether the employer (or a department within the agency) regularly monitors computer use. For example, in United States v. Angevine, 281 F. 3d 1130 (10th Cir. 2002), the court held that a university professor had no legitimate expectation of privacy in his office computer, partly because the university had an extensive policy regarding computer use and provided explicit warnings that the computer would be inspected by university officials. Similarly, in Muick v. Glenayre Electronics, 280 F.3d 741, 742 (7th Cir. 2002), the court observed that an employee had “no right of privacy” in the laptop  [*11]  computer his employer had “lent him for use in the workplace” because the employer had announced that it could inspect the laptop. We agree with these courts that where an employer has a clear policy allowing others to monitor a workplace computer, an employee who uses the computer has no reasonable expectation of privacy in it. In the absence of such a policy, the legitimacy of an expectation of privacy depends on the other circumstances of the workplace.

If these circumstances indicate that the employee has a legitimate expectation of privacy in the place searched or items seized, and the employee has invoked the protection of the Fourth Amendment, the State must prove that the search and seizure was reasonable in order to use the evidence secured in the search and seizure at trial. See State v. Setzler, 667 So. 2d 343, 344 (Fla. 1st DCA 1995). A search and seizure is reasonable if it is conducted pursuant to a valid warrant or with valid consent. State v. Purifoy, 740 So. 2d 29, 29 (Fla. 1st DCA 1999). Law enforcement officers may obtain valid consent from the individual whose property is searched, someone who has common authority over the premises, or someone who reasonably appears  [*12]  to have common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 181, 188-89, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990) (citations omitted).

“Common authority” is derived from “mutual use of the property by persons generally having joint access or control for most purposes.” Rodriguez, 497 U.S. at 177. The legal justification behind the doctrine of common authority is that when two people have mutual use of property, each assumes the risk that the other will permit the area to be searched. See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). Even when a third party has the right to enter the property and inspect it for his or her own purposes, that person does not have constitutional authority to invite law enforcement officers to search the property unless he or she has common authority over the property. See Blanco v. State, 438 So. 2d 404, 405 (Fla. 4th DCA 1983) (noting that a landlord’s personal right to enter an apartment was distinct from a right to invite police in to search the apartment).

In United States v. Ziegler, 474 F.3d 1184, 1191 (9th Cir. 2007), the court considered the consent issue in the context of a workplace computer and reasoned that “the computer is the type of workplace property  [*13]  that remains within the control of the employer ‘even if the employee has placed personal items in [it].’” Standing alone, this statement suggests a blanket rule that employers always retain common authority over workplace computers. However, the Ziegler court’s reasoning was fact-specific. See id. at 1192-93. Notably, in Ziegler, the company had an IT department with complete administrative access to all computers, the company had installed a firewall to monitor Internet traffic, and an employment manual informed employees of such monitoring efforts. Id. at 1192-93. Thus, like the standing inquiry, the question of whether an employer has retained control over a workplace computer sufficient to maintain common authority over the device depends on the operational realities of the workplace.

In some situations, a person who purports to consent to a search may not have actual authority to do so. Law enforcement officers may rely on that person’s apparent authority to give consent, but only if such reliance is reasonable. See Rodriguez, 497 U.S. at 188-89. To determine whether an officer’s reliance was reasonable, courts presume that the officer was familiar with the applicable law. See  [*14]  Morse, 604 So. 2d 496, 503-04 (Fla. 1st DCA 1992). Then, the proper inquiry is whether a reasonable person familiar with the applicable law would have believed the third party had common authority over the premises or item searched. See Morse, 604 So. 2d at 503-04. If the basis for the asserted authority is unclear, the officer must conduct further inquiry before relying on the third party’s representations. Id.

If the State fails to prove a search and seizure was reasonable under constitutional standards, any evidence obtained either directly or indirectly therefrom must be excluded from the defendant’s criminal trial. Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Evidence that is not obtained during a search, but which is obtained as a result of the unlawful search, must be suppressed under the “fruit of the poisonous tree” doctrine. See id.; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319, T.D. 2984, 17 Ohio L. Rep. 514 (1920). Evidence is not per se inadmissible “simply because it would not have come to light but for the illegal actions of the police,” but the evidence must be excluded from trial if it “has been come at by exploitation of [the] illegality” and was not obtained “by means sufficiently  [*15]  distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 488 (citation omitted). Of course, it is the State’s burden to show that the evidence sought to be suppressed was procured by appropriate means. To carry this burden, the State must show “an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action” by clear and convincing evidence. Norman v. State, 379 So. 2d 643, 647 (Fla. 1980). When the defendant seeks to suppress statements, the mere fact that the defendant’s statements were voluntary is insufficient, in itself, to meet this burden. See Oregon v. Elstad, 470 U.S. 298, 306, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985) (stating that where a Fourth Amendment violation taints a confession, the State must meet the threshold requirement of showing that the confession was voluntary and then “show a sufficient break in events to undermine the inference that the confession was caused by” the violation).

Under the facts of the instant case, Young had a legitimate expectation of privacy in his office and his workplace computer. Thus, law enforcement could not properly access the contents of the office or the computer without obtaining a search warrant  [*16]  or valid consent. Because the officers did not have valid consent, the trial court properly suppressed the evidence obtained from the search.

The State contends, based primarily on Young’s statements during the interview, that Young had no subjective expectation of privacy in the office or the computer. However, even considering those equivocal statements, we conclude that Young had a subjective expectation of privacy in the office and computer. This conclusion is based on a review of the totality of the circumstances. Young kept his office locked when he was away, thus taking specific measures to ensure his privacy in the office. When others used the office, the use was for limited purposes. The testimony at the suppression hearing indicated that Young expected no one to peruse his personal belongings in the office or on the computer.

Next, the State contends that Young’s expectation of privacy in his office is not an expectation that society is prepared to accept as reasonable. We disagree. The Supreme Court has recognized that there are circumstances under which an employee may have a legitimate expectation of privacy in the workplace and the items contained therein. See O’Connor, 480 U.S. at 716-18  [*17]  (finding a legitimate expectation of privacy in a government employee’s office, desk, and file cabinets). The facts of the instant case indicate that the church had endowed Young with an expectation of privacy far beyond that which an average employee enjoys. Not only did the church install a special lock on the door, but it supplied only three keys to the door, two of which were in Young’s sole possession. Additionally, Young had a recognized practice of allowing visitors into his office only with his permission or for limited purposes related to church business. Although Young’s expectation of privacy would be more compelling if he had never allowed another person to use the office, such a condition would be unrealistic in any office setting. Young was required to have an objectively reasonable expectation of privacy, not a compelling expectation. It is difficult to imagine circumstances within a realistic business setting which would give rise to a more legitimate expectation of privacy.

Young also had an objectively reasonable expectation of privacy in his office computer. Although the church owned the computer, Young was the sole regular user. Although the church administrator  [*18]  performed maintenance on the computer, there was no evidence that she or anyone other than Young stored personal files on the computer or used it for any purpose other than maintenance. Unlike in the federal cases finding no expectation of privacy in a workplace computer, the church in the instant case had no written policy or disclaimer regarding the use of the computer. See Angevine, 281 F.3d at 1132-33 (describing a university’s extensive policy regarding computer use and monitoring); Muick, 280 F.3d at 742 (noting that an employer’s announcement that it could inspect laptop computers “destroyed any reasonable expectation of privacy” the defendant may have had). Specifically, there was no policy informing Young that others at the church could enter his office and view the contents of his computer. The fact that Young’s computer was not networked to any other computers further heightens the reasonableness of his expectation of privacy in its files. The only way to access the computer to view its contents was to enter through the locked office door. It is clear under these circumstances that the church trusted Young to use the computer appropriately and that it gave no indication  [*19]  that the computer would be searched by anyone at the church. The fact that Young violated this trust does not detract from a proper analysis of whether he had a legitimate reason to expect that others would not enter his office and inspect the computer.

Testimony at the suppression hearing revealed that the district superintendent had authority to enter the office and inspect the computer under general provisions in the Book of Discipline, which gives district superintendents the responsibility to oversee pastors and local churches. While we do not doubt that the district superintendent had such authority, we observe that this general authority to supervise a pastor is distinguishable from an explicit policy indicating that a computer will be inspected periodically. Thus, based on the other facts of this case, Young’s expectation of privacy was legitimate, even in the face of a church policy allowing the district superintendent to supervise him. All employees have supervisors, but many employees may still have a legitimate expectation that others will not examine their personal files, even if these files are brought into the workplace.

Although the district superintendent had personal  [*20]  authority to enter Young’s office, and to authorize others to do so, this authority did not displace the law enforcement officers’ obligation to respect Young’s independent constitutional rights and it did not rise to the level of “common authority” required for valid third party consent. Neither Moreland nor Neal had ever used Young’s workplace computer, worked in his office, or kept property there. Instead, the office was kept locked, and the church had no specific policy giving church officials the right to control and use the office. No testimony at the suppression hearing revealed that any church officials had ever exerted such authority over the office. Thus, the State failed to meet its burden to prove that the officials had common authority under constitutional standards, and there was no showing that Young assumed the risk that church officials would invite police officers in to search the office.

The State contends that even if there was no actual authority for the church officials to consent, the officers reasonably relied on the officials’ representations of authority. However, the officers’ actions do not support a finding of apparent authority. By the officers’ own admissions,  [*21]  they knew nothing of Moreland other than the fact that he was a “representative of the church” who had been told by a supervisor to consent to the search. Although the officers were presumably familiar with the law governing third party consent, they made no effort to ascertain whether the consenting officials had any regular access to or control over the office and the computer before commencing the search. Despite the clear indications of Young’s autonomy at the church and the officers’ lack of knowledge regarding the specific relationship between the supervisor and Young, the officers assumed that the supervisor had the authority to consent. Their actions were not reasonable under constitutional standards. See Rodriguez, 497 U.S. at 188-89; Morse, 604 So. 2d at 503-04 (noting that “[a]n officer cannot always assume an invitation to enter a room is necessarily authorized by the rightful occupant”).

For the first time on appeal, the State argued that the trial court had no choice but to accept that the search was proper to avoid a violation of the ecclesiastical abstention doctrine. Because the ecclesiastical abstention doctrine is an issue of subject-matter jurisdiction, Malichi v. Archdiocese of Miami, 945 So. 2d 526 (Fla. 1st DCA 2006),  [*22]  we feel compelled to address the State’s concerns. Under the ecclesiastical abstention doctrine, civil courts are prohibited from interfering with internal church disputes in order to avoid excessive government entanglement with religion, in accordance with the First Amendment. See id. When matters of church discipline or ecclesiastical government arise between a church and its parishioners, secular courts must accept the decision made by the highest ecclesiastical authority. Id. (quoting Watson v. Jones, 80 U.S. 679, 733, 20 L. Ed. 666 (1871)).

In Malicki v. Doe, 814 So. 2d 347, 356-57 (Fla. 2002), the Florida Supreme Court recognized that the doctrine applies to intrachurch disputes, not those between a church and a third party. The Malicki court explained that the purpose behind the prohibition against resolving disputes between churches and their parishioners is to avoid having the state “intervene on behalf of groups espousing particular doctrinal beliefs.” Id. (quoting Gen. Council on Fin. & Admin. of the United Methodist Church v. Cal. Superior Court, 439 U.S. 1369, 1372-73 (Rehnquist, Circuit Justice 1978)). Ultimately, the court held that there was no First Amendment bar to a suit initiated  [*23]  by parishioners against church officials under a theory of negligent hiring and retention for two reasons: the parishioners were not seeking to regulate conduct rooted in religious belief and the lawsuit was based on a neutral application of a generally applicable principle of law. Id. at 360-61.

In the instant case, the State’s reliance on the ecclesiastical abstention doctrine is misplaced primarily because the church is not a party in this case and there has been no attempt to regulate church conduct through the judicial system. This case did not require the trial court to determine whether the church officials exercised proper authority under church doctrine or otherwise interfere with the manner in which the church governs itself. Any interference in church governance posed by the instant case is far less significant than the interference Florida churches must tolerate under Malicki. Because churches can be sued for negligent hiring and retention, Malicki, 814 So. 2d at 360-61, churches have a legal obligation to exercise due care in selecting and supervising pastors. In contrast, the instant case does not require the church to conform any policies or conduct to a legal standard.  [*24]  The instant case merely requires law enforcement officers to consider the constitutional restrictions on their own behavior.

Notably, the trial court accepted Neal’s testimony that the Book of Discipline gave him the authority to allow others into the pastor’s office. In deeming the officers’ acts unconstitutional, the court did not interfere with the church’s authority or attempt to penalize any person for exercising it. Instead, the court took the limited and appropriate measure of excluding the evidence obtained from the search from use in a court of law. The church had authority to implement its doctrine, but this authority did not extend beyond the realm of religion and did not remove from the court the prerogative of enforcing the rules of evidence and ensuring that government agents comply with the constitutions of the United States and Florida.

Finally, having established that law enforcement officers acted improperly in conducting the search of the office and computer, we turn to the facts surrounding the subsequent interrogation. The State contends that the statements were removed from the original taint because the church had already provided police with a CD containing “questionable  [*25]  images” prior to the search. We disagree. During the interview, the officers showed Young a printout of Web sites he had bookmarked and indicated that they had seized a “memory stick” from his office. Young testified that he was aware the officers had been in his office at the time of the interrogation. The State contends that the printout was from the CD the church had prepared. However, during the interrogation, the officers did not make this distinction to Young, although they clearly communicated to him that they had been in his office. Under these circumstances, we cannot say that Young’s willingness to give incriminating statements was unaffected by the illegal search. The State has not pointed to any event or circumstance that broke the chain of illegality. Because the State failed to carry its burden, the trial court properly considered the statements “fruit of the poisonous tree.” Like the items seized from Young’s office and computer during the search, the interview statements were properly suppressed. Accordingly, the trial court’s order is AFFIRMED.

No further motions for rehearing will be entertained. The Clerk is directed to issue the mandate forthwith.

VAN NORTWICK and  [*26]  THOMAS, JJ., CONCUR.

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DENNIS RAY BURKHART, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-4658

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

February 25, 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 Santa Rosa County. Ronald V. Swanson, Judge.

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

Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.

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

OPINION  

PER CURIAM.

Dennis Ray Burkhart, Appellant, challenges the trial court’s Order of Modification of Probation, which imposed an electronic monitoring device as an additional condition of his probation. He argues that the trial court violated the Double Jeopardy Clause when it modified his sentence after the conclusion of his sentencing hearing. The State acknowledges that the modification was improper. We agree. Accordingly, we reverse the modified order of probation that imposes an additional condition of probation and remand with instructions for the trial court to vacate the order.

After Appellant pled nolo contendere to two counts of possession of a controlled substance, one count of possession of drug paraphernalia, and one count of driving while license cancelled, suspended, or revoked, the trial court sentenced him to concurrent sentences of thirty  [*2]  months probation and six months of community control. Following the conclusion of Appellant’s sentencing hearing, Appellant’s probation officer suggested to the trial court that it may have erred in failing to require electronic monitoring as a condition of Appellant’s probation because Appellant had a previous conviction for lewd or lascivious exhibition under section 800.04(7)(c), Florida Statutes. n1 Subsequently, the trial court entered an order modifying Appellant’s sentence to include electronic monitoring as an additional condition of probation.

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

The record does not indicate when Appellant committed this offense. However, Appellant has conceded that the offense was presumptively committed after the effective date of section 948.30(3)(c). Additionally, our ruling in this case renders the date of the offense irrelevant.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Because probation is considered a sentence in Florida, an enhancement or extension of the conditions of probation after the conclusion of the sentencing hearing generally constitutes a violation of the double jeopardy prohibitions of the United States and Florida constitutions. See Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994); Justice v. State, 674 So. 2d 123, 126 (Fla. 1996).  [*3]  Section 948.06 sets forth the proper procedure for enhancing the conditions of probation. Under section 948.06, probation may not be enhanced until the probationer has been formally charged with a violation of probation, brought before the court, and advised of the charge. Lippman, 633 So. 2d at 1064; Eddie v. State, 933 So. 2d 570, 571 (Fla. 1st DCA 2006). Additionally, the double jeopardy protection prohibits enhancement of probation conditions without proof of a violation of probation. Lippman, 633 So. 2d at 1064.

However, in Harroll v. State, 960 So. 2d 797, 798 (Fla. 3d DCA 2007), the Third District recognized that a trial court may modify a sentence of probation to include statutorily mandated conditions of probation without violating the Double Jeopardy Clause. Specifically, the Harroll court recognized that where section 948.30 requires a probationer to be electronically monitored, a trial court does not err in modifying the probationer’s sentence to correct the omission of this required condition of probation. See id. The Harroll court’s holding rested on the sound premise that a defendant is not placed in double jeopardy when the trial court simply corrects a legally invalid  [*4]  sentence. See id. (citations omitted).

The narrow issue presented in this case is whether the trial court erred in concluding that Appellant’s previous conviction was a qualifying offense under section 948.30(3)(c). Under section 948.30(3)(c), any probationer or community controllee whose crime was committed on or after September 1, 2005, must undergo electronic monitoring as a condition of probation or community control supervision if he or she “[h]as previously been convicted of a violation of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older.” The crimes listed in this section of the statute are, respectively, any crime of sexual battery, lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, sexual performance by a child, or selling or buying of minors.

Where a statute enumerates specific terms, it is ordinarily construed as excluding from its operation all those terms not expressly mentioned. Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976). The crime of lewd or lascivious exhibition, as defined in section 800.04(7),  [*5]  is not listed as a qualifying offense in section 948.30(3)(c). Thus, Appellant’s previous conviction of lewd or lascivious exhibition did not require the trial court to impose electronic monitoring as a condition of probation under section 948.30(3)(c). Because the additional condition was not statutorily mandated, the trial court placed Appellant in double jeopardy when it modified the terms of Appellant’s probation after the close of the sentencing hearing. The State concedes that section 948.30 does not support the trial court’s decision to modify Appellant’s sentence. n2 We commend the State for its candor and conclude that, under the facts of this case, there was no justification for modifying the sentence.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -2

Although it concedes that section 948.30 does not support the trial court’s modification of Appellant’s sentence, the State emphasizes its position that the judgment and sentence originally imposed against Appellant were proper. The only issue Appellant has raised in this appeal is whether the modification itself was proper. Therefore, this decision does not affect the validity of the original judgment and sentence.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Accordingly, we REVERSE and REMAND with directions for the  [*6]  trial court to vacate the order modifying Appellant’s probation.

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

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STEPHEN BOWMAN, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-4221

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

February 25, 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 of Leon County. Paul Hawkes, Acting Judge.

COUNSEL:   Michael Ufferman of the Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   BENTON, J. WOLF and PADOVANO, JJ., CONCUR.

OPINION BY:   BENTON

OPINION  

BENTON, J.

We entered an order on January 30, 2008, reversing Stephen Bowman’s forty-month prison sentence along with the predicate for the sentence, an order revoking his probation. Our order also reinstated him to probation. We write to explain the basis for our decision.

In accordance with the parties’ plea agreement, the original trial judge had placed Mr. Bowman on “administrative probation,” specifying as a condition of probation a jail term subject, however, as “a matter of grace” to the possible substitution of time at a sheriff’s work camp. Addressing appellant, she explained:

. . . On the Sheriff’s work camp, if you don’t sign up or don’t qualify for any reason, even though it’s no fault of your own, the punishment [i.e., condition of probation] for this is 30 days jail. It’s a matter of grace that you’re allowed to do the work camp instead of the jail and participate  [*2]  in that program.

But do you understand if, for any reason, you’re unable to do the Sheriff’s work camp that the intention is that you do the 30 days jail, or whatever is left of the Sheriff’s work camp days?The original trial judge thus indicated that the condition of probation could be fulfilled by jail time, work camp days, or a combination of the two. She also gave Mr. Bowman credit for two days he had already served in jail, in this way requiring him to serve twenty-eight more days, whether in jail or at the work camp.

Mr. Bowman had completed sixteen work camp days before he was dismissed from the work camp program. (The work camp program accepted medical excuses for five absences but dismissed him, apparently on account of the sheer number of absences, when he missed a sixth scheduled day.) Instead of sending him to jail to serve the twelve days that remained as a condition of his probation, an affidavit was filed alleging that he had violated a condition of his probation. A violation of probation hearing was convened before a different judge, who revoked his probation at the conclusion of the hearing, even though there was no showing that Mr. Bowman’s absences violated work camp  [*3]  rules, much less any condition of probation.

To establish a violation of probation, the State bears the burden of proving “by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So. 2d 314, 316 (Fla. 1st DCA 1996). In proving dismissal from the work camp program, the State proved no violation of any condition of probation at all. Although probation officers (relying on erroneous “paper work”) had informed Mr. Bowman that he did not have the option of fulfilling the probationary condition in jail, the assistant state attorney at the revocation hearing, who had not been present at the original sentencing hearing, stated he “would feel somewhat bound to honor” any option the original judge had given when setting the conditions of appellant’s probation.

The dismissal from work camp did no more than trigger the requirement that Mr. Bowman complete his condition of probation by finishing the remaining twelve days in jail. Because he had already served the twelve days necessary to complete the condition of his probation many times over, we ordered his reinstatement to probation. Until we ordered probation reinstated,  [*4]  Mr. Bowman had been incarcerated ever since he was arrested as a result of the probation violation affidavit filed before his probation was revoked on July 21, 2006.

Although the State does not dispute appellant’s contention that scoresheet errors occurred at the original sentencing, we do not reach any question concerning the errors. See Fitzhugh v. State, 698 So. 2d 571, 573 (Fla. 1st DCA 1997). But see Stubbs v. State, 951 So. 2d 910, 911 (Fla. 2d DCA 2007) (“[A] defendant may challenge the inclusion of [sentencing] points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal.” (quoting Matton v. State, 872 So. 2d 308, 312 (Fla. 2d DCA 2004))).

WOLF and PADOVANO, JJ., CONCUR.

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WILLIAM PAUL THOMPSON, a/k/a WILLIAM PAUL THOMSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-3978

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 22, 2008, 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 Collier County; Jack R. Schoonover, Associate Senior Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   WALLACE, Judge. WHATLEY, J., and GALLEN, THOMAS M., ASSOCIATE SENIOR JUDGE, Concur.

OPINION BY:   WALLACE

OPINION  

WALLACE, Judge.

William Paul Thompson appeals the order that revoked his probation and his resulting sentences. Because the State failed to prove by competent, substantial evidence that Mr. Thompson had either willfully failed to pay court-ordered costs or that he had changed his approved residence without permission, we reverse.

I. FACTS AND PROCEDURAL HISTORY

A. Background

In October 2004, Mr. Thompson pleaded no contest to the charges of aggravated battery, section 784.045, Florida Statutes (2003), a second-degree felony; and felony child abuse, section 827.03, Florida Statutes (2003), a third-degree felony. The circuit court adjudged Mr. Thompson to be guilty of these crimes and sentenced him to two years’ probation on each charge. The two-year probationary terms were designated  [*2]  to run concurrently. In pertinent part, condition twelve of Mr. Thompson’s conditions of probation required him to pay $ 1074 in court costs.

After Mr. Thompson’s initial sentence was imposed, he relocated to Philadelphia, Pennsylvania. The supervision of Mr. Thompson’s probation was transferred to Pennsylvania in accordance with the Interstate Compact for Adult Offender Supervision, sections 949.07-.08, Florida Statutes (2004). Thus Pennsylvania, as the receiving state, became responsible for supervising Mr. Thompson during his two-year probationary term. See § 949.07(2); Fla. Admin. Code R. 23-4.001 (repealed 2006); Kolovrat v. State, 574 So. 2d 294, 296 (Fla. 5th DCA 1991). The Pennsylvania authorities subsequently reported that Mr. Thompson had absconded from supervision, and a warrant was issued for his arrest.

After Mr. Thompson’s return to Florida, the State filed an amended affidavit for violation of probation charging Mr. Thompson with violating conditions three, twelve, and five of his probation. The alleged violation of condition twelve was for Mr. Thompson’s failure to pay the $ 1074 in court-ordered costs. Condition three of the standard conditions provided: “You will not  [*3]  change your residence or employment or leave the county of your residence without first procuring the consent of your supervising officer.” Condition five related to new violations of the law. However, the State subsequently dropped its claim of a new law violation.

B. The Evidence Presented at the Revocation Hearing

At the revocation hearing held in July 2006, the State presented the testimony of Mr. Thompson’s probation supervisor in Philadelphia. She testified that Mr. Thompson had an initial visit with her on November 19, 2004. At that time, the probation supervisor instructed Mr. Thompson on the terms and conditions of his probation, including the requirement that he make weekly reports and that he was required to obtain her permission before changing his residence. During this initial visit, Mr. Thompson informed his probation supervisor of the address in Philadelphia where he said that he was residing.

After Mr. Thompson’s initial visit with his probation supervisor, he did not report to her and she did not see him again until April 27, 2005, when she visited the address that he had designated as his Philadelphia residence. The probation supervisor testified that her purpose in  [*4]  going to the address was “to make sure [Mr. Thompson] still lived there.” At the designated address, the probation supervisor found a house that was under renovation. Mr. Thompson, who was present during the probation supervisor’s visit, told her that his uncle was letting him stay at the house while it was being repaired. The probation supervisor testified that the house had a single bedroom on the second floor that “looked okay, but the rest of the house was just–was not livable.” With the exception of the second-floor bedroom, the floor of the house was cluttered with debris. The walls lacked sheetrock, and the electrical wiring was exposed. Another major impediment to living at the house was the absence of running water. When questioned about this deficiency, Mr. Thompson explained to his probation supervisor that he used the bathroom at a friend’s residence around the corner.

Before leaving, the probation supervisor instructed Mr. Thompson again about his weekly reporting requirement. In fact, she also had him sign a form acknowledging that he had been instructed to report to his probation supervisor weekly and that a “[f]ailure  [*5]  to do so [would] be a violation of [his probation].” The probation supervisor might have entertained doubts that Mr. Thompson had been living without running water in a house that was undergoing a major renovation through a Philadelphia winter. Nevertheless, she testified that upon returning to her office from the April 2005 home visit, she had “verified that [Mr. Thompson] was there.”

The April 2005 home visit was the last time that the probation supervisor had any contact with Mr. Thompson. When he failed to report after the April 2005 home visit, the probation supervisor visited the house again. On this occasion, she testified, no one answered the door, and there was no indication that anyone was living there. Afterward, the probation supervisor made one more effort to contact Mr. Thompson by leaving a message for him on his mother’s telephone answering machine. Mr. Thompson did not return the call. The probation supervisor also testified that she drove by the house frequently, but she had never seen anyone entering or leaving it. In the absence of any further contacts by Mr. Thompson, the probation supervisor filed a violation report and closed the case.

At the July 2006 revocation  [*6]  hearing, Mr. Thompson testified that he had lived at the address he had given to his probation supervisor since the transfer of his probation to Philadelphia. He said that he was leasing a room in the house at a reduced rental amount in exchange for his assistance with the ongoing renovation project. According to Mr. Thompson, while the house lacked running water, it did have electricity. With regard to the lack of running water, Mr. Thompson repeated his explanation that he had a key to a friend’s house nearby where he could use the bathroom. Mr. Thompson claimed that he may have been working on the day that the probation supervisor knocked on the door and no one answered. He said that the probation supervisor did not leave a notice on the door notifying him of the attempted visit.

It was undisputed that Mr. Thompson had never notified his probation supervisor of any change of residence. Mr. Thompson conceded that he had not yet paid the $ 1074 in court-ordered costs.

C. The Circuit Court’s Ruling and the Sentences Imposed

Based on the evidence presented at the hearing, the circuit court found that Mr. Thompson had violated conditions twelve and three and revoked his probation. In its  [*7]  oral pronouncement of sentence, the circuit court sentenced Mr. Thompson to ten years’ imprisonment for the aggravated battery, a second-degree felony, and five years’ imprisonment for felony child abuse, a third-degree felony. The sentences were designated to run concurrently. The circuit court’s oral pronouncement of sentence provided further:

Eight years of this sentence will be suspended upon your completion of a successful term of probation.

Therefore, the judgment is that you serve two years at this time, credit for time served, and the balance of eight years you’ll be on probation.The written sentences differed slightly from the ones that were orally pronounced. The written sentences provided that Mr. Thompson would serve a term of two years’ imprisonment followed by eight years’ probation on both charges. Once again, the sentences were designated to run concurrently.

II. PRELIMINARY CONSIDERATIONS

In order for the circuit court to revoke Mr. Thompson’s probation, the State was obligated to prove by the greater weight of the evidence that he had willfully and substantially violated a specific condition of his probation. See Conhagen v. State, 942 So. 2d 444, 445 (Fla. 2d DCA 2006)  [*8]  (citing Hicks v. State, 890 So. 2d 459 (Fla. 2d DCA 2004)). Thus the circuit court was required to consider whether the charged violations were willful and substantial and whether they were supported by the greater weight of the evidence. See State v. Carter, 835 So. 2d 259, 261 (Fla. 2002). Our review of the circuit court’s determination is for abuse of discretion. See id. at 262; Robinson v. State, 907 So. 2d 1284, 1286 (Fla. 2d DCA 2005).

III. DISCUSSION

A. Condition Twelve–The Failure to Pay Court Costs

The circuit court found that Mr. Thompson had violated condition twelve of his probation by failing to pay $ 1074 in court costs. On appeal, Mr. Thompson argues that the circuit court abused its discretion by finding him in violation of condition twelve because the State failed to prove that he had the ability to pay the court costs. “[W]here the violation alleged is a failure to pay costs or restitution, there must be evidence and a finding that the probationer had the ability to pay.” Shepard v. State, 939 So. 2d 311, 314 (Fla. 4th DCA 2006) (citing Warren v. State, 924 So. 2d 979, 980-81 (Fla. 2d DCA 2006)). With commendable candor, the State concedes that there was no evidence  [*9]  presented at the hearing concerning Mr. Thompson’s ability to pay the court costs and that the circuit court failed to make the required finding. Consequently, the circuit court abused its discretion in finding that Mr. Thompson had violated condition twelve.

B. Condition Three–Changing Residence without Permission

Mr. Thompson also argues that the evidence presented at the hearing was insufficient to support a finding that he had violated his probation by changing his residence without first obtaining his probation supervisor’s consent. In response, the State relies on the purported improbability of Mr. Thompson’s housing arrangements. As the State puts it: “Where [Mr. Thompson] actually lived is anybody’s guess, but it defies logic to believe he could live at [the house in question] continuously where there was no running water.”

In considering the State’s argument based on the unsuitable living conditions at Mr. Thompson’s designated address, we note initially that condition three did not require that Mr. Thompson live in any particular kind of residence. While we agree that Mr. Thompson’s living arrangements were less than ideal, a court may not revoke probation based on conduct  [*10]  that does not constitute a violation of the probationer’s conditions of probation. See Meade v. State, 799 So. 2d 430, 433 (Fla. 1st DCA 2001). More important, on April 27, 2005, the probation supervisor met Mr. Thompson at the house that he had designated as his residence. Thus she was able to see for herself the conditions under which he was living. If the probation supervisor did not believe that Mr. Thompson was actually living at the house, she could have determined that his claimed living arrangement was a sham and immediately violated his probation. She did not. Instead, upon returning to her office from the home visit, the probation supervisor “verified that [Mr. Thompson] was there.” Thus the State’s argument that Mr. Thompson’s claimed residential arrangement “defies logic” to such an extent that the circuit court could infer that he was not actually living there is unpersuasive.

The State’s alternative argument that the probation supervisor’s subsequent visit to Mr. Thompson’s address was sufficient to support a finding that he had violated condition three is equally unconvincing. Two weeks after the April 27 visit to the residence, the probation supervisor returned to the  [*11]  residence and found no one there. She testified further that there was no indication that anyone was living there. However, the probation supervisor did not testify that she had checked with neighbors or done anything else to verify that Mr. Thompson had moved. Instead, she left a message for Mr. Thompson on his mother’s telephone answering machine. We note that Mr. Thompson did not have a curfew and that he was not on community control. Evidence that Mr. Thompson was not at home during a single visit and that he failed to return a telephone message left on a relative’s telephone answering machine was not sufficient to prove that he had changed his residence. See Singleton v. State, 891 So. 2d 1226, 1227-28 (Fla. 2d DCA 2005), disapproved of on other grounds by Lawson v. State, 969 So. 2d 222 (Fla. 2007); see also Gauthier v. State, 949 So. 2d 326, 327 (Fla. 5th DCA 2007) (holding that evidence showing that a probationer was absent from his residence for thirteen nights was insufficient to support a finding that the probationer had changed his residence without permission because the probationer did not have a curfew). Furthermore, the State did not present any evidence that Mr. Thompson  [*12]  was actually living at a different address. For these reasons, the circuit court erred in finding that Mr. Thompson had violated condition three.

C. The Failure to Report

In support of the order of revocation, the State also argues that Mr. Thompson was “an absconder.” The record contains competent, substantial evidence that would have supported a finding that Mr. Thompson failed to report to his probation supervisor as required by the conditions of his probation. Granted, a probationer’s repeated failure to make required reports will support the revocation of probation. See Oates v. State, 872 So. 2d 351, 354 (Fla. 2d DCA 2004); Robinson v. State, 773 So. 2d 566, 567-68 (Fla. 2d DCA 2000). Nevertheless, as the circuit court noted, the State omitted to charge Mr. Thompson with failure to report. A revocation of probation based on a violation not alleged in the charging document is a deprivation of the right to due process of law. See Davis v. State, 891 So. 2d 1186, 1187 (Fla. 4th DCA 2005); Perkins v. State, 842 So. 2d 275, 277 (Fla. 1st DCA 2003). As the circuit court recognized, it could not revoke Mr. Thompson’s probation based on a failure to report because this conduct was not  [*13]  charged in the amended affidavit for violation of probation. See Grimsley v. State, 830 So. 2d 118, 120 (Fla. 2d DCA 2002); Perkins, 842 So. 2d at 277. It follows that the State may not rely on evidence of Mr. Thompson’s failure to report to sustain the revocation order.

D. Sentencing Errors

We agree that some of Mr. Thompson’s arguments concerning errors in his sentences appear to have merit. However, based on our disposition of this case, we need not address these issues.

IV. CONCLUSION

The record in this case does not establish that Mr. Thompson violated the terms and conditions of his probation as charged in the amended affidavit for violation of probation. For this reason, we reverse the order of revocation of probation and the sentences that were imposed as a result of the revocation order. The sentences imposed by the circuit court required Mr. Thompson to serve two years in prison. At this time, it appears that Mr. Thompson has been released from prison, and he is now serving his two concurrent eight-year probationary terms. Mr. Thompson was originally placed on probation for two concurrent two-year probationary terms on October 11, 2004. These two-year probationary terms would  [*14]  have expired on October 10, 2006. For this reason, we do not direct that Mr. Thompson be restored to supervision under the terms and conditions of his original probationary sentence. Instead, on remand, the circuit court shall discharge Mr. Thompson from supervision. See Davis v. State, 867 So. 2d 608, 612 (Fla. 2d DCA 2004).

Reversed and remanded with instructions.

WHATLEY, J., and GALLEN, THOMAS M., ASSOCIATE SENIOR JUDGE, Concur.

Courtesy of David Edelstein

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MICHAEL MORDENTI, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-4407

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 22, 2008, 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 Hillsborough County; Barbara Fleischer, Judge.
Mordenti v. State, 894 So. 2d 161, 2004 Fla. LEXIS 2253 (Fla., 2004)

COUNSEL:   James Marion Moorman, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   HARRIS, CHARLES M., Associate Senior Judge. DAVIS, J., Concurs with opinion. STRINGER, J., Dissents with opinion.

OPINION BY:   CHARLES M. HARRIS

OPINION  

HARRIS, CHARLES M., Associate Senior Judge.

The issue in this case is whether the trial court erred in excluding statements made by the alleged coconspirator, deceased at the time of trial, which, if believed by the jury, would exonerate Michael Mordenti. We hold that the trial court did err and reverse.

Mordenti was first convicted of first-degree murder in 1991, at which time he received the death penalty. Mordenti’s conviction and sentence was affirmed by the Florida Supreme Court in 1994. However, on review of a denied motion for postconviction relief, that court reversed the conviction and sentence because of a Brady n1 violation. Mordenti v. State, 894 So. 2d 161 (Fla. 2004). A second trial resulted in a mistrial (hung jury). Mordenti was tried  [*2]  once again, resulting in a second conviction and this appeal.

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Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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Larry Royston, the victim’s husband, was immediately the prime suspect in the case. Because he had an alibi (he was with the victim’s mother at the time of the murder), law enforcement believed a hired killer was involved. Through Royston’s telephone records, the police were led to Gail Mordenti Milligan. When she was called in for questioning, Mrs. Milligan demanded immunity for her cooperation, and apparently without any additional investigation, she received it. She then told the investigators that indeed she was the go-between in setting up this murder-for-hire. Royston offered $ 10,000 for the murder of his wife, and Mrs. Milligan set out to find a contract killer. Mrs. Milligan told authorities that her former husband, Michael Mordenti, after initially refusing, had agreed to do the murder. This was her testimony at trial, and it was the only material evidence against Mordenti.

The Florida Supreme Court in reversing Mordenti’s original conviction noted how critical Mrs. Milligan’s testimony was in obtaining the conviction: n2

Mordenti was convicted primarily on the testimony of one  [*3]  woman, Gail Mordenti Milligan. No physical evidence was produced linking Mordenti to the murder, and Gail was the only witness who was able to place Mordenti at the scene of the murder. There was no money trail, no eyewitnesses, no confession, no murder weapon, no blood, no footprints, and no DNA evidence linking Mordenti to the murder. The prosecution’s entire case relied solely on Gail’s testimony, and the jury crediting that testimony.894 So. 2d at 168.

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Had Mrs. Milligan testified that her boyfriend had committed the murder, there would have been some corroboration because independent witnesses stated that two people were seen in the vicinity of the murder at or near the appropriate time and that while neither met the description of Mordenti, one did meet the description of Mrs. Milligan’s boyfriend.
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The testimony in the case indicates that Royston never met Mordenti. This is important because when Royston first saw Mordenti in court, he blurted out to his attorney in a crowded courtroom, “That’s not the guy” or “That’s not him.” n3 This statement, as well as others, was not discovered until after Royston committed suicide shortly before his trial. n4 The prosecutors of Mordenti convinced  [*4]  a judge that Royston’s attorney-client privilege ended with his death and obtained an ex parte order requiring Royston’s attorney, Trevena, to respond to the State’s questions. Although the above quoted courtroom statement was not specifically mentioned, the Florida Supreme Court discussed the importance of Trevena’s testimony in its decision overturning Mordenti’s conviction:

After Royston committed suicide, the State obtained an ex parte order signed by the trial judge stating that the attorney-client privilege did not apply and ordering Trevena to submit to an interview with the State. . . .

During the evidentiary hearing [on the motion for postconviction relief] the trial court ruled that Trevena’s testimony with regard to the information he received from his deceased client in preparation for his murder trial was inadmissible hearsay. However, the trial court permitted postconviction counsel to proffer Trevena’s testimony. The proffer indicated that Trevena conveyed to the prosecution that Larry Royston believed that “Gail Mordenti had orchestrated [the murder].” Trevena informed the State that “Mr. Royston had indicated to [him] that [Royston] did have a sexual affair with Gail  [*5]  Mordenti, and that she wanted to continue that affair.” Trevena further informed the State that Gail “wanted Mr. Royston freed up so that she could share . . . in his assets.” Finally, Trevena communicated to the State that Royston maintained that the thirteen-minute cellular phone call on June 7, 1989, the day of the murder, from Royston to Mordenti was “innocent in nature and that it was relating to some type of a boat or motor vehicle,” and “[t]here was no discussion concerning any homicide or violence, . . . it was related to business and . . . the call had been set up by Gail.”Id. at 173 (some alteration in original).

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Royston’s attorney testified on proffer that Royston had been “adamant that [Mordenti] had absolutely nothing to do with [the murder].”4

Suppose Mordenti had been executed following his first conviction and sentence before this information was revealed by the State? What confidence would the public have in the criminal justice system?
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Even though the credibility of Mrs. Milligan was the central issue of this case, the trial court refused to allow Trevena’s testimony on the basis of hearsay and privilege. There was simply no privilege remaining at the time of the third  [*6]  trial. If the privilege ever existed (the statement was blurted out in a crowded courtroom for anyone to hear), it was waived when the State inappropriately required Trevena to respond to its questions. The statement then became public information. The Florida Supreme Court made this abundantly clear in its decision. The court did not treat the information as privileged and discussed its potential admissibility. That has become the law of the case as it relates to privilege.

With regard to the application of the hearsay rule, the United States Supreme Court has stated that “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). The uncorroborated statement of a coconspirator raises such concerns. The one who took the money, picked the murderer, and was given immunity must be subject to the closest scrutiny during cross-examination. Mrs. Milligan was not. The Florida Supreme Court discussed the potential problem of hearsay in its decision and suggested it should be available for impeachment of Mrs. Milligan who, for  [*7]  example, had denied a sexual relationship with Royston. Royston’s statement also meets the spontaneous statement exception as well as the statement against interest exception to the hearsay rule.

It may well be that the jury will not believe Mr. Trevena or may put some other construction on Mr. Royston’s statements. But the jury should have that opportunity.

Reversed and remanded for a new trial.

DAVIS, J., Concurs with opinion.

STRINGER, J., Dissents with opinion.

CONCUR BY:   DAVIS

CONCUR  

DAVIS, J., Concurs specially with opinion.

I concur with Judge Harris’ conclusion that the trial court committed reversible error in determining that the testimony of the attorney who represented Larry Royston prior to his death was inadmissible in the third Mordenti trial. However, I write to explain why I believe that the attorney-client privilege does not apply in this case.

The issue presented in this case is whether the privilege should now preclude the use of Royston’s attorney’s testimony given the unique procedural posture presented here. That is, the issue of whether the trial court was correct when it originally determined that the privilege did not apply is not germane to our current review. n5

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I recognize that section 90.508, Florida Statutes  [*8]  (2006), renders inadmissible those disclosures that are erroneously compelled by the court; however, this section does not apply to these facts because the statements here are not sought to be admitted against the holder of the privilege, Larry Royston.
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The purpose of the privilege is to bar the disclosure of information; it is not a test of admissibility. See § 90.502(2), Fla. Stat. (2006) (“A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications . . . .”); see also E. Colonial Refuse Serv., Inc. v. Velocci, 416 So. 2d 1276, 1277-78 (Fla. 5th DCA 1982) (stating that although testimony may be relevant and admissible, the information sought “may be privileged and therefore beyond permissible discovery”). Once it is determined that a privilege does not prohibit the disclosure of information, the question of whether it is admissible is determined by the rules of evidence.

In the instant case, after Royston’s death but prior to Mordenti’s first trial, the State obtained a ruling from the trial court that Royston’s attorney could not assert the privilege to keep from disclosing the conversations he had with  [*9]  this client. n6 Royston’s attorney never appealed this ruling, but rather complied by answering the State’s questions regarding the information shared with him by his client prior to the client’s death.

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Because the State was the party that sought the ruling originally, an argument can be made that the State should now be collaterally estopped from arguing that the privilege should bar the use of the testimony at the retrial. However, the State does not have standing to assert the privilege. See § 90.502(3).
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After discovering that the State had obtained this information but had failed to disclose it to his counsel prior to trial, Mordenti sought postconviction relief alleging a Brady n7 violation. In reversing the postconviction court’s denial of relief, the Florida Supreme Court reviewed the information disclosed by the attorney pursuant to the trial court’s determination that the privilege did not apply and found that the State had, in fact, committed a Brady violation by not providing the information to Mordenti’s counsel. Mordenti v. State, 894 So. 2d 161, 174 (Fla. 2004). The court granted Mordenti a new trial, impliedly concluding that the defense should be provided the same information  [*10]  that the State had obtained from Royston’s attorney. Id. at 177.

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Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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Despite the fact that Royston’s attorney never sought appellate review of the trial court’s determination of the inapplicability of the privilege, the Florida Supreme Court, by ordering the further disclosure of the attorney-client conversation, implicitly affirmed the trial court’s determination that the privilege did not apply. Although the privilege issue was not before the supreme court in this postconviction proceeding, the practical effect of the court’s order directing that the information again be disclosed to Mordenti’s counsel was that the conversations between Royston and his attorney were no longer protected by the attorney-client privilege. Thus, as Mordenti argues on appeal, this became the law of the case, and the trial court erred in determining that the testimony was inadmissible at Mordenti’s third trial because of the privilege. n8 See Smith v. City of Fort Myers, 944 So. 2d 1092, 1094 (Fla. 2d DCA 2006) (“‘The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through  [*11]  all subsequent stages of the proceedings.’” (quoting Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001))).

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As mentioned in Judge Harris’ opinion, it is not clear that the privilege was the actual basis for the trial court’s ruling. In fact, upon remand, the trial court entered another order directing the attorney to answer the questions of Mordenti’s counsel.
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Having determined that the attorney-client privilege was not a proper basis to exclude the attorney’s testimony, I would further agree with Judge Harris’ opinion in concluding that the three portions of testimony at issue were admissible. The spontaneous statement made by Royston to his attorney in open court that Mordenti was “not the guy” would meet the statement against interest exception to the hearsay rule. See § 90.804(2)(c). The other two statements would be admissible as impeachment testimony. See § 90.608. I would therefore concur with Judge Harris that the trial court erred in excluding the testimony and agree that the case should be remanded for a new trial.

DISSENT BY:   STRINGER

DISSENT  

STRINGER, J., Dissents with opinion.

I respectfully dissent. I would affirm Mordenti’s conviction because Mordenti has not established any  [*12]  reversible error from the trial court’s determination that Trevena’s testimony was protected by the attorney-client privilege. Let me begin by stating that while the statements at issue would certainly assist in Mordenti’s defense, those statements do not amount to a “smoking gun” that would exonerate Mordenti. In order to understand the importance of the statements to Mordenti’s defense, a better explanation of the background facts is required. The facts adduced at Mordenti’s third trial have not changed substantially from those reported in Mordenti’s first appeal by the Florida Supreme Court:

This case involves the murder of Thelma Royston. The victim’s husband, Larry Royston (Royston), allegedly hired Mordenti to commit the murder. Royston and Mordenti were charged with the victim’s murder after Royston’s cellular phone records led detectives to Mordenti’s former wife, Gail Mordenti, n9 who subsequently confessed that she had acted as the contact person between Mordenti and Royston. After Royston and Mordenti were charged, Royston committed suicide. Consequently, his version of the events at issue was not available. At trial, Mordenti’s defense was that he was some place else when  [*13]  the murder occurred.

Testimony at trial revealed the following details regarding the murder. The victim, Thelma Royston, lived with her mother and her husband. On the night of the murder, Royston told the victim that the lights were off in the barn. Because the Roystons’ horse business required the barn lights to be left on until 10:00 or 11:00 each night, the victim and her mother went outside to turn on the lights. When they went outside, they noticed an unidentified man off in the distance. The victim went to talk to him and called back to her mother that the man was there to discuss a horse Royston had for sale. The victim’s mother went back inside to tell Royston that the man was there, but when her dog began barking she went back out to investigate. Upon doing so, she discovered the victim’s body in the barn. The victim had suffered multiple gunshot and stab wounds. Because it was night and the man had been so far off in the distance, the victim’s mother was unable to furnish a description of him to the police.

Because the victim suffered multiple gunshot and stab wounds, the medical examiner was unable to determine from which wounds the victim had died or whether she had died  [*14]  instantaneously. However, there were no defensive wounds and no indication that anything had been taken or that the victim had been sexually assaulted.

Additional testimony revealed that the victim and Royston had been contemplating divorce, but that Royston thought the victim was asking for too much money. A former girlfriend of Royston’s testified that Royston had asked her to kill his wife by either shooting or stabbing her to make it look like a burglary, but the former girlfriend had refused. Mordenti’s former wife, Gail Mordenti, testified that Royston asked her if she knew of anyone who would “get rid of his wife” for $ 10,000. Gail Mordenti stated that she subsequently asked Mordenti if he knew of anyone who would kill Royston’s wife and he responded: “Oh, hell, for that kind of money, I’ll probably do it myself.” Gail Mordenti explained that she acted as the middle person between Royston and Mordenti by conveying information about the best time and place for the murder and by supplying a photograph of the victim and a map of the ranch.

Gail Mordenti further testified that, when she first approached Mordenti about murdering the victim, he informed her that it would be impossible  [*15]  to commit the murder as Royston wanted and that he would not do it. However, Royston continued to insist to Gail Mordenti that he wanted the murder committed. Gail Mordenti finally placed Royston directly in touch with Mordenti. Royston’s cellular phone records reflected that he made a thirteen-minute telephone call to Mordenti’s number on the day of the murder. After the murder, Gail Mordenti delivered payments totaling $ 17,000 from Royston to Mordenti. According to her, the amount had risen from $ 10,000 to $ 17,000 because Mordenti had to get rid of a car. Mordenti gave Gail Mordenti between $ 5,000 and $ 6,000 of the $ 17,000 over time to help her pay her bills. Additionally, Gail Mordenti testified that Mordenti described the murder to her, stating that the victim “put up quite a fight” and that he “shot her in the head with a .22.” He also told Gail Mordenti that the victim had a lot of jewelry on and that he felt really bad that he couldn’t take it. She also testified that Mordenti had a number of guns that he kept as “throw away” pieces and that she knew he was associated with some “shady” people. (A cellmate of Mordenti’s also testified that Mordenti told him he was “in the  [*16]  mob.”) For her testimony, Gail Mordenti was offered complete immunity.

No physical evidence was produced linking Mordenti to the crime, and Gail Mordenti was the only witness who was able to place him at the scene of the murder. However, her testimony was consistent with what police knew about the murder and some of her testimony matched information about the murder that had not been made public.

In his defense, Mordenti produced three witnesses who stated that he had attended an automobile auction on the night of the murder. Mordenti was a used car dealer and frequently attended auctions where he purchased cars for resale. The prosecution, however, was able to point to a number of inconsistencies in the witnesses’ testimony. Additionally, one of the three witnesses was one of Mordenti’s girlfriends, and the other two witnesses had testified only after being contacted by the girlfriend over a year after the murder and after being reminded by the girlfriend that the night of the murder was the same night Mordenti had attended the auction.Mordenti v. State, 630 So. 2d 1080, 1082-83 (Fla. 1994) (alteration in original). In the appeal of the denial of Mordenti’s motion for postconviction  [*17]  relief, the supreme court set forth the statements Royston made to attorney Trevena during the initial proffer as follows:

The proffer indicated that Trevena conveyed to the prosecution that Larry Royston believed that “Gail Mordenti had orchestrated [the murder].” Trevena informed the State that “Mr. Royston had indicated to [him] that [Royston] did have a sexual affair with Gail Mordenti, and that she wanted to continue that affair.” Trevena further informed the State that Gail “wanted Mr. Royston freed up so that she could share . . . in his assets.” Finally, Trevena communicated to the State that Royston maintained that the thirteen-minute cellular phone call on June 7, 1989, the day of the murder, from Royston to Mordenti was “innocent in nature and that it was relating to some type of a boat or motor vehicle,” and “[t]here was no discussion concerning any homicide or violence, . . . it was related to business and . . . the call had been set up by Gail.” The defense was not privy to any of this information.Mordenti v. State, 894 So. 2d 161, 173 (Fla. 2004). In his proffer before the court at his third trial, Trevena also explained that Royston did not admit any culpability in the  [*18]  victim’s death and insisted that Mordenti also had nothing to do with it. Trevena also acknowledged that Royston blurted out to him in court, “That’s not the guy,” when Royston saw Mordenti. While Trevena believed this statement may have been an admission that Royston was involved in the offense, Trevena and Royston did not discuss the matter further.

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Gail Mordenti married sometime after the events at issue and became Gail Milligan.
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As I previously stated, Royston’s statements would certainly assist in Mordenti’s defense, but I do not believe that the statements are the equivalent of a “smoking gun” that will exonerate Mordenti. As the trial court below noted, “This is a defendant who’s talking to his defense attorney making what are clearly obviously self-serving statements.” Nothing Royston said to his attorney proves that Gail Milligan was lying when she testified that Royston hired Mordenti to murder the victim.

Turning to the merits, the majority appears to hold that the State waived the attorney-client privilege when it obtained an ex parte order ruling that the privilege was not applicable to Royston’s statements and ordering Trevena to participate in an interview with the State  [*19]  in 1991. However, it was not the State who sought to assert the privilege at Mordenti’s third trial in 2005; it was attorney Trevena. Furthermore, the State did not have the authority to waive or assert the attorney-client privilege. See § 90.502(3), Fla. Stat. (2005); Restatement (Third) of the Law Governing Lawyers § 86 (2000).

Moreover, I respectfully disagree with the suggestion in both the majority and the concurring opinion that the trial court’s 1991 ex parte ruling that the testimony at issue was not protected by the attorney-client privilege became law of the case when the supreme court reversed the denial of Mordenti’s motion for postconviction relief in 2004. The issue before the supreme court was whether the postconviction court erred in denying relief on Mordenti’s claim that the State committed a Brady violation by failing to disclose the statements Trevena made at the interview that followed the ex parte order at issue. See Mordenti, 894 So. 2d at 173. In order to analyze this issue, the supreme court determined (1) that Trevena’s statements in the interview were favorable, (2) that the State suppressed the evidence, and (3) that the State’s failure to disclose the evidence  [*20]  prejudiced Mordenti. Id. at 173-74. The supreme court did not have before it the issue of whether Royston’s statements to Trevena were protected by attorney-client privilege. The doctrine of law of the case applies only to those issues “‘actually decided on appeal.’” State v. McBride, 848 So. 2d 287, 289 (Fla. 2003) (quoting Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (emphasis added)).

I reject the concurring opinion’s suggestion that the supreme court in Mordenti implicitly affirmed the trial court’s ex parte ruling that the attorney-client privilege did not apply. It was not necessary for the supreme court to rule on the privilege issue for its determination of whether the State committed a Brady violation in failing to disclose the statements. Furthermore, I do not believe that Trevena had a duty to seek review of the trial court’s ex parte order in order to preserve his ability to claim the privilege in a separate judicial proceeding. Without appellate review of the trial court’s order, the trial court’s order cannot become the law of the case. See McBride, 848 So. 2d at 290.

Nor do I believe that publication of Royston’s privileged statements by the Florida  [*21]  Supreme Court constitutes a sort of abrogation of the privilege. It is true that the cat is out of the bag, so to speak, and the content of Royston’s confidential statements to attorney Trevena has been made public. However, the fact that the information is public does not mean that the information is discoverable for trial. Because the privilege has not been waived by anyone authorized to do so, the fact that Trevena’s proffer was subsequently published should not abrogate the privilege.

Finally, I reject the majority’s suggestion that Royston may have waived the attorney-client privilege by communicating to his attorney via courtroom “outburst.” The majority notes that Royston “blurted out” the communication in a crowded courtroom where he could have been overheard. However, this issue was not raised by Mordenti on appeal, and we are precluded from addressing it for that reason. See Johnson v. State, 660 So. 2d 637, 645 (Fla. 1995); Grimsley v. State, 939 So. 2d 123, 125 (Fla. 2d DCA 2006). Furthermore, there is no evidence that the statement was heard by anyone other than attorney Trevena.

My determination that Mordenti has not established any error in excluding the statements at  [*22]  issue as privileged renders moot a determination of whether the statements constituted inadmissible hearsay. However, I do not share the majority’s concern with the application of the hearsay rule “to defeat the ends of justice” in this case. In fact, the admission of a codefendant’s self-serving hearsay statements to his attorney, which were made to assist a defense that was seeking to avoid the death penalty and which were not subject to cross-examination, gives me greater concern for the ends of justice.

Accordingly, I conclude that Mordenti has not established any reversible error from the trial court’s determination that Trevena’s testimony was protected by the attorney-client privilege. Therefore, I would affirm Mordenti’s conviction.

Courtesy of David Edelstein

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