Florida Criminal Law Opinions

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

No. 4D06-4217

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

March 26, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

SUBSEQUENT HISTORY:   Later proceeding at Donohue v. State, 2008 Fla. App. LEXIS 4329 (Fla. Dist. Ct. App. 4th Dist., Mar. 26, 2008)

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Charles M. Greene, Judge; L.T. Case No. 97-6063 CF10A.
Donohue v. State, 925 So. 2d 1163, 2006 Fla. App. LEXIS 5948 (Fla. Dist. Ct. App. 4th Dist., 2006)

COUNSEL:   Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   STONE, STEVENSON, and TAYLOR, JJ. concur.

OPINION  

PER CURIAM.

Daniel Donohue appeals his sentence for indecent assault on a child under the age of sixteen. We reverse and remand for additional findings by the trial court regarding the trial court’s imposition of GPS monitoring as a condition of probation, but we affirm appellant’s split sentence.

In Donohue v. State, 925 So. 2d 1163 (Fla. 4th DCA 2006), we remanded the case for re-sentencing because an aggravating circumstance used to enhance appellant’s sentence had not been determined by the jury or admitted by appellant, as required by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L. Ed. 2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000).

At the re-sentencing hearing, the state requested that the trial court impose sexual offender probation, but the court refused, claiming that, in 1997,  [*2]  when the crime was committed, sexual offender probation did not exist. The trial judge also said that, “regardless of the court’s ruling, the Department of Corrections and pursuant to the Jessica Lunsford Act, Mr. Donohue is going to be on lifetime GPS monitoring. And the court might just as well bite the bullet now and impose it because that’s pursuant to the Act.” Over appellant’s objections, the trial court determined that the Jessica Lunsford Act is “self-effectuating” and does not require any factual findings or notice. Near the end of the hearing, the prosecutor said that appellant is a sexual offender, and the judge did not disagree with that statement, although both parties and the judge acknowledged that appellant is not a sexual predator and that the trial court had been wrong to classify him as one during the original sentencing.

Section 948.30, Florida Statutes (2006), a portion of the Jessica Lunsford Act, states:

(2) Effective for a probationer or community controllee whose crime was committed on or after October 1, 1997, and who is placed on community control or sex offender probation for a violation of chapter 794, s. 800.04, s. 827.071, or 847.0145, in addition to any  [*3]  other provision of this section, the court must impose the following conditions of probation or community control:

***

(e) Electronic monitoring when deemed necessary by the community control or probation officer and his or her supervisor, and ordered by the court at the recommendation of the Department of Corrections.

(3) Effective for a probationer or community controllee whose crime was committed on or after September 1, 2005, and who:

(a) Is placed on probation or community control for 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;

(b) Is designated a sexual predator pursuant to s. 775.21; or

(c) Has previously been convicted of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or 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 court must order, in addition to any other provision of this section, mandatory electronic monitoring as a condition of the probation or community control supervision.

We are unable to determine whether the trial court’s  [*4]  misapplication of the Act was the sole reason that the trial court sentenced appellant to electronic monitoring. Under section 948.30 (2)(e), Florida Statutes, the court was required to impose electronic monitoring only “when deemed necessary by the community control or probation officer and his or her supervisor” and recommended by the Department of Corrections. The trial judge appeared to believe that electronic monitoring was mandatory and that no additional factual findings were necessary.

The facts of this case are very similar to those of Burrell v. State,     So.2d    , 2007 Fla. App. LEXIS 17724, 2007 WL 3317518 (Fla. 2d DCA 2007). In Burrell, the trial judge mistakenly thought that he had to impose electronic monitoring under the Jessica Lunsford Act. Id. 2007 Fla. App. LEXIS 17724, [WL] at *1. The second district court of appeal held, “[b]ecause it is unclear whether the trial court would have imposed electronic monitoring as a condition of probation had it known it was not mandatory, we remand for resentencing to allow the trial court to exercise its discretion to determine whether electronic monitoring should be imposed.” Id.

We reverse and remand for further findings by the trial court to determine whether electronic monitoring should  [*5]  be imposed on appellant. Further, because the record is not clear, we also remand for further findings as to whether or not appellant is a sexual offender.

Reversed and Remanded.

STONE, STEVENSON, and TAYLOR, JJ. concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

RICHARD WILLIAMS, JR., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-911

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 26, 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; J. Rogers Padgett and E. Lamar Battles, Judges.

COUNSEL:   James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

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

OPINION BY:   VILLANTI

OPINION  

VILLANTI, Judge.

Richard Williams appeals his conviction for second-degree murder. We affirm but write to explain why the admission of Williams’ “confession” was harmless error in this case.

On the evening of May 20, 2003, Tampa police officers responded to an apartment after a call from a neighbor concerning a disturbance and the sound of gunshots. Inside the apartment, they found Constance Culbreth stabbed and shot. The police recovered several spent bullet casings from Culbreth’s apartment and from the apartment below. Culbreth subsequently died of her injuries, and the police developed her live-in boyfriend, Richard Williams, as the potential perpetrator of the crime.

On the morning of May 21, 2003, the police received a call that someone matching Williams’ description was behind a Walgreens drug store. Officer  [*2]  Downes responded to the Walgreens and found a man matching Williams’ description curled up on his side beside a tree in the parking lot. Because he did not know whether the man was armed, Downes pointed his gun at the man and ordered him to get on his stomach. The man made eye contact with Downes and then blurted out, “I got my gun on me.” Downes was able to peaceably secure the man, who turned out to be Williams, and a gun was found on the ground where Williams had been lying. The police took the gun into evidence.

Williams was subsequently transported to police headquarters, where he was read the Tampa Police Department’s standard Miranda n1 warnings. Williams was also given a Miranda rights form, which contained the same warning language as the oral warnings previously given to him. Williams signed the Miranda form indicating that he understood his rights. Williams then waived his rights and agreed to speak with the officers.

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

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Shortly thereafter, Detective John Tindall brought the gun recovered from beneath Williams into the interview room and asked Williams whether the gun was his. Williams responded, “Yeah, that’s mine.” Tindall then asked  [*3]  Williams whether it was “the firearm you used to shoot Ms. Culbreth with?” Williams looked at Tindall and nodded his head in the affirmative.

No other statements made by Williams were offered into evidence at trial. Instead, the State sought to establish its case through testimony that placed Williams and Culbreth alone in their apartment on the night of the murder and forensic evidence that established that the bullets recovered from Culbreth’s body and the bullet casings recovered from her apartment were fired from the gun that Williams had with him when he was arrested. Based on this evidence, the jury found Williams guilty of second-degree murder with a firearm.

In this appeal, Williams argues that (1) the statements he made during the police interview should have been suppressed because he unequivocally invoked his right to remain silent, (2) the statements he made during a police interview should have been suppressed because the Miranda warnings he received did not sufficiently inform him of his right to have an attorney present during questioning, and (3) certain physical evidence should have been suppressed because it was obtained following an illegal arrest. We affirm on issues  [*4]  (1) and (3) without comment. We write solely to explain our affirmance on issue (2).

This court recently addressed the issue of whether the standard Miranda warnings given by the Tampa Police Department sufficiently advised a defendant of the right to have an attorney present during police questioning. See M.A.B. v. State, 957 So. 2d 1219 (Fla. 2d DCA) (en banc), review granted, 962 So. 2d 337 (Fla. 2007). In M.A.B., upon en banc consideration, this court was evenly divided as to whether the warnings were legally sufficient. Id. at 1220. As a result, pursuant to Florida Rule of Appellate Procedure 9.331(a), the trial court’s ruling in that case was affirmed. Id. This court also certified the question of the legal sufficiency of these warnings as one of great public importance. Id.

Shortly thereafter, the same issue regarding the sufficiency of the standard Tampa Police Department Miranda warnings was addressed by a panel of this court in Powell v. State, 969 So. 2d 1060 (Fla. 2d DCA 2007), review granted, No. 973 So. 2d 1123, 2008 WL 332503 (2008). In Powell, the majority held that the Tampa Police Department’s standard Miranda warnings were insufficient to comply with the requirements  [*5]  of Miranda. 969 So. 2d at 1063. This decision in Powell constitutes binding precedent in this district. Thus, because the Miranda warnings given to Williams in this case were identical to the warnings at issue in Powell, we are compelled to hold that the Miranda warnings given in this case were legally insufficient.

That holding, however, does not end our analysis. Despite the error in failing to suppress Williams’ statements, we need not reverse if we can conclude beyond a reasonable doubt that admission of the statement was harmless. Caso v. State, 524 So. 2d 422, 425 (Fla. 1988) (“The erroneous admission of statements obtained in violation of Miranda rights is subject to harmless error analysis.”); Mitchell v. State, 32 Fla. L. Weekly D2958 (Fla. 2d DCA Dec. 14, 2007). To establish harmless error, the State must prove beyond a reasonable doubt that the error did not contribute to the conviction. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). “Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination  [*6]  of the impermissible evidence which might have possibly influenced the jury verdict.” Id.; see also Crumbley v. State, 876 So. 2d 599, 602 (Fla. 5th DCA 2004).

Here, after a thorough review of the record, we conclude that “there is no reasonable possibility that the error contributed to [Williams'] conviction.” DiGuilio, 491 So. 2d at 1135. The improper “confession” in question consisted of Williams’ mere head nod in response to the question, “Is this the firearm you used to shoot [the victim] with?” The State only briefly argued the effect of this acknowledgement during its closing argument. Through other evidence, the State established that Williams and Culbreth were alone in their apartment when neighbors heard a struggle followed by gunshots from inside the apartment. When the police arrived, Culbreth was found alone in the apartment mortally wounded by gunshots and stab wounds. An empty gun case was found in the bedroom. Williams’ car was still parked at the apartment, but he was gone. He was found early the next morning within walking distance of the apartment and in possession of a firearm. Upon seeing a police officer, Williams spontaneously volunteered, “I got my gun on me,”  [*7]  and the officers recovered the firearm from beneath Williams’ body. Forensic evidence established that the bullets and bullet casings recovered from the murder scene were fired from the firearm found in Williams’ possession. In light of all of this evidence, there is simply no reasonable possibility that Williams’ single head nod contributed to his conviction.

The recent supreme court case of Cuervo v. State, 967 So. 2d 155 (Fla. 2007), does not compel a different result because the facts of Cuervo are distinguishable. Like Williams, Cuervo was charged with first-degree murder. The confrontation between Cuervo and the victim occurred in the victim’s car with no witnesses present. Id. at 167. However, unlike in this case, the State presented no forensic evidence connecting Cuervo to the crime. Id. Further, Cuervo did not make any spontaneous statements to the police. Id. After the trial court denied Cuervo’s motion to suppress, Cuervo relied on the statements he made to the officers concerning his mental state to challenge the premeditation element of the first-degree murder charge. Id. In finding that the error in refusing to suppress Cuervo’s statements was not harmless, the supreme  [*8]  court explained that “the defense might have pursued a different theory of defense had the trial court granted its motion to suppress [Cuervo's] confession.” Id.

Here, there is nothing in the record to support an argument that Williams might have pursued a different theory of defense had the trial court granted his motion to suppress. At the close of the State’s case, Williams successfully obtained a judgment of acquittal on the charge of first-degree murder, and the case was submitted to the jury as a second-degree murder case. Thus, the issue of premeditation was not before the jury. Williams’ theory of defense was that the State had not presented any evidence to establish that he acted with a depraved mind or with evil intent. He argued that the evidence of a struggle in the apartment combined with the fact that Culbreth was a much larger person than Williams raised reasonable doubts as to what happened in the minutes before the shooting. Based on this, Williams argued that the State had simply failed to prove its case for second-degree murder, particularly in light of the elements of justifiable and excusable homicide. Thus, nothing about Williams’ defense flowed from his acknowledgement  [*9]  that he shot the victim.

In view of the other evidence presented at trial, Williams’ head nod played such a minor role in his defense that we conclude that any error in its admission was harmless beyond a reasonable doubt. Accordingly, we affirm.

Affirmed.

CANADY and LaROSE, JJ., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

STEPHON BOYKINS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-2087

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 26, 2008, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Anthony K. Black, Judge.

JUDGES:   SILBERMAN, Judge. CASANUEVA and SALCINES, JJ., Concur.

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

Stephon Boykins appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The State properly concedes error. Therefore, we reverse and remand for further proceedings.

In 1992, a jury found Boykins guilty of robbery with the use of a firearm. The trial court sentenced him to twenty years’ imprisonment with a three-year minimum mandatory. This court affirmed his judgment and sentence on direct appeal. See Boykin[s] v. State, 676 So. 2d 418 (Fla. 2d DCA 1996) (table). In 1998, Boykins filed a rule 3.850 motion which the postconviction court denied. On appeal, this court affirmed in part and reversed in part, concluding that the postconviction court erred in denying one of Boykins’ claims as facially insufficient. See Boykin[s] v. State, 725 So. 2d 1203, 1203 (Fla. 2d DCA 1999). On remand in 1999, the postconviction court allowed Boykins to enter a new guilty plea to the robbery charge in exchange for a sentence of twenty years’  [*2]  imprisonment with a three-year minimum mandatory.

Boykins filed his present rule 3.850 motion in December 2006, claiming that his 1999 plea was involuntary because it was entered based on counsel’s affirmative misadvice. He asserted that the court offered him two sentencing options in exchange for a guilty plea: fifteen years’ imprisonment as a habitual felony offender (HFO) or twenty years’ imprisonment with no HFO designation. He claimed he opted for the twenty-year sentence on counsel’s advice that with earned gain time he would serve a shorter term than a day-for-day fifteen-year HFO sentence.

Boykins alleged that counsel failed to inform him that eventually he would be placed on conditional release and that any violation of conditional release could subject him to a loss of gain time, resulting in his having to complete the twenty-year sentence. Boykins stated that he was placed on conditional release in 2003 and then violated the terms of that release in 2005. Upon his return to prison, he learned that the Department of Corrections (DOC) had forfeited his earned gain time. Boykins claimed that had he known of the possible forfeiture of gain time when he pleaded guilty, he probably  [*3]  would have chosen the fifteen-year HFO sentence or might instead have opted to go to trial because there was a reasonable probability that he would have been convicted of a lesser charge.

The postconviction court summarily denied Boykins’ rule 3.850 motion, finding that it was untimely because it was not filed within two years of Boykins’ 1999 judgment and sentence. On appeal, the State concedes error based on Beasley v. State, 958 So. 2d 1086 (Fla. 2d DCA 2007).

In Beasley, this court reiterated the following:

[T]he triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the DOC informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)(1).Id. at 1087-88 (quoting Galindez v. State, 909 So. 2d 597, 598 (Fla. 2d DCA 2005)); see also Hall v. State, 891 So. 2d 1066 (Fla. 2d DCA 2004); Spradley v. State, 868 So. 2d 632 (Fla. 2d DCA 2004). Because Boykins claimed that he did not learn that the DOC had forfeited his gain time until he was returned to  [*4]  prison in 2005, his 2006 rule 3.850 motion was timely filed.

Accordingly, we reverse the denial of Boykins’ motion and remand for the postconviction court to consider the merits of his allegations.

Reversed and remanded for further proceedings.

CASANUEVA and SALCINES, JJ., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

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

No. 4D07-1853

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

March 26, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Peter M. Weinstein, Judge; L.T. Case No. 06-14862 CF10B.

COUNSEL:   Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   HAZOURI, J. KLEIN and DAMOORGIAN, JJ., concur.

OPINION BY:   HAZOURI

OPINION  

HAZOURI, J.

Gary Johnson appeals his conviction and sentence for burglary of a dwelling asserting that the trial court reversibly erred when it permitted the state to bolster the victim’s identification of Johnson as one of the perpetrators of the burglary by allowing the victim to testify that she had correctly identified the codefendant at the codefendant’s sentencing. We agree and reverse and remand for a new trial.

Johnson was charged by information with burglary of a dwelling along with co-defendant Kenny Jones arising out of an incident occurring on April 21, 2006. At Johnson’s trial, the victim, Barbara Palmer, testified that on April 21, 2006, at approximately 9:00 a.m., she left her house to pick up a neighbor to go shopping. When Palmer arrived at her  [*2]  neighbor’s house, she noticed an unfamiliar truck in her driveway (Palmer’s driveway). Palmer went to her house to investigate who was in the truck. When she arrived back at her home, two men came walking toward her, coming from the back of the house. Palmer described the men: “Two young black males, they had very short haircuts, they were wearing the same T-shirts, I assumed they worked on boats.” n1 Palmer asked them if they were there visiting her husband, but they did not respond.

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

Palmer and her husband are in the boating business.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Palmer became suspicious when they would not answer her questions. After not answering Palmer’s questions, the two men got into the truck. One of the men was carrying a canvas bag that had been inside Palmer’s house, next to her laptop. Palmer was holding on to the door handle of the truck, saying “who are you,” and yelling to her neighbor in the car to call 911. Palmer let go of the door handle and called out the truck’s license plate number to her neighbor, who was on the phone with 911. Palmer’s neighbor was able to give the police the truck’s license plate number and description.

The police responded five minutes later. Palmer and the police determined  [*3]  that the two men gained entry to her home through the back door. Palmer’s laptop and canvas bag were missing. Palmer testified that after she asked her neighbor to call 911, she witnessed a third person jump over the fence into another neighbor’s yard. He was dressed exactly like the other two men.

Palmer testified that she was able to identify Jones as the truck’s passenger and carrier of the canvas bag by way of a photographic lineup. She identified him with 100% certainty. She had previously identified Johnson in a photographic lineup as the driver of the truck, but only with 80% certainty. Over Johnson’s objection, the trial court permitted the state to bolster Palmer’s identification of Johnson by having Palmer testify that she was able to identify codefendant Jones at his sentencing.

In overruling the objection, the trial court stated,

. . . I think it is fair to share that she recognized and identified somebody and she later saw him at sentencing, it is just an issue of identification, not that he’s the person. You know, it just shows that, that she was able to perceive and recognize a person and was able to perceive and recognize him another time.

Although it may be marginally  [*4]  relevant that Palmer could identify Jones with 100% certainty, and therefore not an abuse of discretion, it is highly prejudicial that Palmer’s second identification of Jones occurred at his sentencing. The clear implication is that not only was Palmer 100% sure of her identification of Jones, but additionally, Jones was in fact convicted of the very burglary for which Johnson was being tried. “It is well settled under Florida law that the state may not show that a co-defendant or an accomplice pleaded guilty or was convicted because it is not relevant and it may have a very prejudicial effect upon the determination of the guilt or innocence of the defendant.” See Travieso v. State, 480 So. 2d 100, 103 (Fla. 4th DCA 1985) (citation omitted).

The state argues that this error is harmless. We disagree. In order for this error to be harmless, the state has a burden to prove beyond a reasonable doubt that the error did not contribute to the verdict. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Johnson’s defense was misidentification. There was no physical evidence to support the state’s charge that Johnson participated in the burglary. Therefore, Palmer’s ability to identify Johnson  [*5]  was critical to the state’s case. Thus, Palmer’s testimony that she made a positive identification of Jones at his sentencing can hardly qualify as harmless error.

Johnson’s second point on appeal is without merit.

Reversed and Remanded for a New Trial.

KLEIN and DAMOORGIAN, JJ., concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

LAMAR BLANDIN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-3013

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 26, 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 Charlotte County; J. Frank Porter, Judge.

COUNSEL:   Lamar Blandin, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   STRINGER, Judge. SILBERMAN and KELLY, JJ., Concur.

OPINION BY:   STRINGER

OPINION  

STRINGER, Judge

Lamar Blandin seeks review of the postconviction court’s order denying his motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.850. Blandin argues that his trial counsel was ineffective for allowing Blandin to enter a plea to the charge of driving while license revoked and an admission to a violation of probation based on that conduct because the offense occurred after the revocation period had expired. However, Blandin’s license remained revoked because he had never petitioned the Department to be relicensed. Accordingly, the postconviction court did not err in denying relief on this ground.

After being stopped for speeding in November 2004, Blandin was charged with driving while license revoked as a habitual traffic offender pursuant to section 322.34(5), Florida Statutes (2004). Blandin entered an open plea to the charge and an admission to a violation  [*2]  of probation in another case based on the same conduct. In his rule 3.850 motion, Blandin argued that trial counsel was ineffective for allowing him to enter a plea to the charge of driving while license revoked and an admission to a violation of probation based on the same conduct. Blandin asserted that his license was revoked in August 1992, and his five-year revocation period expired in August 1997. Blandin claimed he could not be convicted for driving while license revoked in 2004 because his revocation period had expired seven years earlier.

The postconviction court denied this claim after a hearing based on its finding that because Blandin had not petitioned to have his license reinstated, it was still “revoked” for purposes of section 322.34(5). On appeal, Blandin argues that the postconviction court erred in concluding that his license remained “revoked” under section 322.34(5) after the revocation period expired. Blandin argues that because section 322.34(5) does not define when a person’s license is considered “revoked,” it is ambiguous. Blandin asserts that the ambiguity should be interpreted in his favor under the rule of lenity.

Section 322.34(5) provides as follows:

Any  [*3]  person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 322.27(5) provides for the revocation of the license of a habitual traffic offender as follows:

The department shall revoke the license of any person designated a habitual offender, as set forth in s. 322.264, and such person shall not be eligible to be relicensed for a minimum of 5 years from the date of revocation, except as provided for in s. 322.271. Any person whose license is revoked may, by petition to the department, show cause why his or her license should not be revoked.A person whose license has been revoked under section 322.27(5) may petition the Department for restoration of driving privileges “[a]t the expiration of 5 years from the date of license revocation.” § 322.331. The Department will thereafter investigate the petitioner’s qualification and fitness to drive and hold an administrative hearing to determine whether to restore driving privileges completely or on a restricted  [*4]  basis. Id.

There is no ambiguity in this statutory framework. Under section 322.27(5), when Blandin’s license was revoked as a habitual traffic offender in August 1992, it was revoked “for a minimum of 5 years.” After five years, Blandin was eligible to be relicensed, but relicensing was not automatic. Because Blandin never petitioned to be relicensed, the Department never investigated his qualification and fitness to drive or held an administrative hearing to determine whether to restore Blandin’s driving privileges. Thus, Blandin’s license remains “revoked” under section 322.34(5), and his conviction for driving while licensed revoked and admission to a violation of probation based on that conduct was proper.

The Third District has reached the same conclusion under similar facts in State v. Green, 747 So. 2d 1007 (Fla. 3d DCA 1999). In Green, the defendant’s license was revoked as a habitual traffic offender. Id. at 1007. Over three years after the statutory revocation period expired, the defendant was charged with driving as a habitual traffic offender pursuant to section 322.34(5). The trial court granted the defendant’s motion to dismiss the charge based on the defendant’s argument  [*5]  that his status as a habitual traffic offender had expired when the statutory revocation period expired over three years earlier. Id. at 1007-08.

The Third District reversed, holding that the defendant’s license remained revoked because he never took affirmative steps to have it reinstated. Id. at 1008. The court explained that the defendant’s “driving privileges were terminated, not temporarily withdrawn” when his license was revoked. Id. While the defendant was eligible to have his license restored, he was required to petition the Department of Highway Safety and Motor Vehicles and subject himself to an investigation into his fitness to drive in order to do so. The court held that until the defendant took such affirmative steps, his license remained revoked. Id.

Accordingly, we conclude that the postconviction court did not err in determining that Blandin’s license remained revoked seven years after he was eligible to be relicensed. The court properly denied Blandin’s claim that trial counsel was ineffective for allowing Blandin to enter a plea to the charge of driving while license revoked and to a violation of probation based on that conduct.

Affirmed.

SILBERMAN and KELLY, JJ., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

STATE OF FLORIDA, Appellant, v. TAJ JEVON DIXON, Appellee.

No. 4D06-3920

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

March 26, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Marc H. Gold, Judge; L.T. Case No. 05-12462 CF10A.

COUNSEL:   Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.

JUDGES:   STEVENSON, J. TAYLOR, J., concurs. STONE, J., concurs specially with opinion.

OPINION BY:   STEVENSON

OPINION  

STEVENSON, J.

Police approached Taj Jevon Dixon at the Amtrak train station. Ultimately, Dixon was searched, police found marijuana in his pocket and he was charged with possession. Dixon filed a motion to suppress the drugs, arguing he was stopped in the absence of reasonable suspicion and any subsequent consent to search was not voluntary. The trial court granted the motion to suppress and this appeal by the State followed. We affirm.

On July 27, 2005, narcotics detectives Camilo and Murray were working at the Amtrak station. The detectives were in plain clothes and were not there pursuant to any tip of criminal activity. The detectives observed Dixon exit a cab and proceed to the ticket booth. Detective Murray  [*2]  testified that, on his approach, Dixon looked at him and at the surrounding passengers and continued to do so as he exited the booth. Detective Murray and Dixon had had a prior encounter. Detective Camilo observed nothing unusual about Dixon’s behavior–only that he was a little nervous.

At this point, Detective Murray decided to make contact with Dixon. Detective Camilo testified that after Dixon exited the ticket booth, he approached Dixon from the front and Detective Murray approached him from the rear. According to Detective Camilo, Detective Murray walked past Dixon and turned to face him with the result being that the two officers were standing in front of Dixon and face-to-face with him. Detective Murray could not recall precisely how they had approached Dixon, but agreed both he and Detective Camilo were ultimately in front of Dixon and facing him. In a prior deposition, Detective Murray indicated both officers approached Dixon from the front.

The detectives showed Dixon their badges and told him they were narcotics detectives. Detective Murray asked Dixon if he was riding the train and if he could see his ticket. Dixon handed Murray the ticket and the officers examined and returned  [*3]  it. At one point, Detective Murray testified that after returning the ticket to Dixon, he told Dixon they were investigating drug smuggling on the trains and, at another, he indicated he advised Dixon of their investigatory activities at the outset of the encounter. In any event, after hearing this information, Dixon became very nervous and his hands began to shake. The detectives testified they then asked Dixon for consent to search his person and he responded “yeah, go ahead.” A bag of marijuana was found in Dixon’s front, right pocket.

In his motion to suppress, Dixon contended (1) that the manner in which the officers approached him was such that the contact between him and police constituted an investigatory stop absent the required reasonable suspicion–not a consensual encounter and (2) that his consent was the product of this illegal detention and not voluntary. The trial judge granted the motion to suppress, remarking that, in reaching his decision, he had considered the credibility of the officers and had concerns about the conflict in the testimony regarding how the officers approached the defendant. On appeal, the appellate court is “required to interpret the evidence and  [*4]  the inferences and deductions that flow from it in the light most favorable to sustaining the court’s ruling.” Mays v. State, 887 So. 2d 402, 403 n.1 (Fla. 2d DCA 2004), approved, 959 So. 2d 216 (Fla. 2007). Any findings of fact made by the trial court are to be afforded deference where supported by the record, but the application of the law to these facts is considered de novo. See State v. Hackett, 944 So. 2d 399, 401 (Fla. 4th DCA 2006).

In this case, there was no claim by the State, nor any testimony by the officers, to the effect that the police had the reasonable suspicion of criminal activity necessary to support an investigatory stop. The validity of the officers’ search (and the admissibility of the evidence found) thus turns upon whether the contact between Dixon and the police can be characterized as a consensual encounter. “A consensual encounter is one that involves minimal police contact” and, during such an encounter, the citizen may either comply with the officer’s requests or ignore them and leave. Graham v. State, 964 So. 2d 758, 761 (Fla. 4th DCA 2007). “The mere questioning of an individual, including a police request for identification, does not amount to a Fourth Amendment  [*5]  detention.” Id. (citing State v. Barnett, 572 So. 2d 1033, 1034 (Fla. 2d DCA 1991)). “‘The inquiry for determining when an encounter with the police should properly be deemed a seizure is centered around whether a reasonable person would feel free ‘to disregard the police and go about his business.”” P.W. v. State, 965 So. 2d 1197, 1199 (Fla. 4th DCA 2007) (quoting O.A. v. State, 754 So. 2d 717, 720 (Fla. 4th DCA 1998) (citation omitted)). In making such an inquiry, the courts should consider the “totality of the circumstances.” Id. “Some factors to consider that would indicate a seizure would be the ‘threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’” Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). An officer’s request to search an individual does not, alone, convert a consensual encounter into an investigatory stop. Id.

Here, there was testimony before the trial court demonstrating that Dixon was aware of the presence of the two officers virtually from the moment he  [*6]  arrived at the station and, indeed, that he may have been aware of Detective Murray’s identity as the two had had a prior encounter. As Dixon came out of the ticket booth, the officers approached him. There was evidence that as one detective approached from the front another approached from the rear, that the detective approaching from the rear passed Dixon and then stood in front of Dixon along side the detective who had approached from the front. There was evidence that, before police asked for permission to search Dixon, they (1) showed him their badges; (2) told him they were narcotics detectives working at the Amtrak station and that the reason for their contacting him was that there was a large problem with people smuggling drugs on the train; and (3) asked Dixon if he was riding the train and to produce his ticket.

Under these circumstances, and in particular the manner in which the detectives approached Dixon, i.e., one from the front and another from the rear who passed Dixon with the result being that both officers stood in his path, we find no error in the trial court’s conclusion that the contact was not a consensual encounter and a reasonable person would not have felt  [*7]  free to disregard the detectives’ questions and request to produce a ticket and simply proceed on his way. Compare United States v. Bowles, 625 F.2d 526 (5th Cir. 1980) (finding contact was an investigatory stop, not a consensual encounter), with United States v. Simmons, 918 F.2d 476 (5th Cir. 1990) (finding contact was a consensual encounter), and State v. Poole, 730 So. 2d 340 (Fla. 3d DCA 1999) (finding contact was consensual encounter). State v. R.H., 900 So. 2d 689 (Fla. 4th DCA 2005), cited by the State, is distinguishable. There, police made casual conversation with the defendant, rather than, as here, immediately pulling out their badges and stating they were drug detectives. Further, in R.H., this court specifically found the evidence failed to establish that R.H.’s freedom of movement was hindered because the evidence was to the effect that the officers were standing next to one another. Id. at 693. In this case, while the end result was that the officers were standing next to one another and in front of Dixon, to accomplish this, police had approached from both the front and rear with the officer approaching from the rear essentially stepping into Dixon’s path.

Affirmed.

TAYLOR,  [*8]  J., concurs.

STONE, J., concurs specially with opinion.

CONCUR BY:   STONE

CONCUR  

STONE, J., concurring specially.

I concur in affirming, but would emphasize that the officers actually blocked Dixon’s path of walking to his train, which was at the station.

Courtesy of David Edelstein

Bookmark It

Hide Sites

TREVOR L. JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-3964

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 26, 2008, Opinion Filed

NOTICE:  

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

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Daniel H. Sleet, Judge.

JUDGES:   FULMER, WHATLEY, and CANADY, JJ., Concur.

OPINION  

PER CURIAM.

Trevor L. Johnson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand because the postconviction court should have considered his motion as if it were filed pursuant to rule 3.850.

In his motion, Johnson sought correction of a scoresheet miscalculation, which he claims denied him the benefit of his plea agreement for the lowest permissible prison sentence. The State responded to the motion and conceded the obvious calculation error. n1 However, citing Williams v. State, 825 So. 2d 994 (Fla. 4th DCA 2002), the State asserted that the plea agreement was for a specific term of 65.18 months and, therefore, the scoresheet miscalculation did not warrant resentencing because the sentence imposed does not exceed the statutory maximum. The State further asserted that “there is no indication in the plea colloquy that the bottom of the guidelines was the specific offer from the State.”

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

The lowest permissible prison sentence reflected  [*2]  on the original scoresheet was 65.18 months. The properly calculated scoresheet reflects a lowest permissible prison sentence of 53.4 months.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

The trial court considered the plea form and the transcript of the plea hearing and concluded that “defendant entered into a negotiated plea for a term of years, and the record does not clearly demonstrate that the parties to the plea agreement intended that Defendant be sentenced to the lowest permissible prison sentence.”

The plea form recites “FSP 65.18 months,” which is the number of months that Johnson’s counsel stated was the bottom of the guidelines sentence. The excerpt from the plea colloquy that is relevant to this issue reads:

[Defense Counsel]: Judge, we have reached a negotiated plea agreement.

THE COURT: All right, what are we going to do?

[Defense Counsel]: [The State] has agreed to amend in case number 03-12655, [the State] has agreed to amend and reduce the burglary of a dwelling to burglary of a structure.

Mr. Johnson will plead guilty as charged to the remaining counts in that information and in case number 03-004874, the sentence will be a bottom of the guidelines sentence of 65.18 months Florida State Prison and he’ll be sentenced  [*3]  as a habitual felony offender and we’ll stipulate to the fact that Mr. Johnson does qualify as a habitual felony offender.

He has reviewed the plea form as well as the sentencing guideline scoresheet and I’m passing that forward.While the plea form specifies a term of “FSP 65.18 months,” the transcript supports Johnson’s claim that the agreement was for the lowest permissible prison sentence, which the original scoresheet reflected was 65.18 months. Thus, we are unable to agree with the trial court that the record refutes Johnson’s claim.

Johnson’s entitlement to be resentenced turns on whether his plea agreement was for a specific term of years as the State asserts and the trial court found, or whether it was for the lowest permissible prison sentence, which the plea colloquy appears to support. Thus, Johnson’s claim is the type of claim cognizable under rule 3.850 which affords the evidentiary hearing required to determine the terms of Johnson’s plea agreement. See Dellofano v. State, 946 So. 2d 127, 129 (Fla. 5th DCA 2007) (Lawson, J., concurring specially) (observing that because there is no procedure in the Florida Rules of Criminal Procedure for a “motion to enforce plea agreement,”  [*4]  the only avenue available to the movant is to file a claim pursuant to rule 3.850). Johnson’s rule 3.800(a) motion was filed within the two-year period applicable to rule 3.850 motions, but it was not sworn. The trial court should have treated his motion as a timely filed, facially sufficient rule 3.850 motion and dismissed the motion, giving leave to refile the motion under oath within thirty days. See Spera v. State, 971 So. 2d 754 (Fla. 2007).

We therefore reverse and remand for reconsideration under rule 3.850. Because the plea agreement and the transcript of the plea colloquy preclude a summary denial of Johnson’s claim, we anticipate that Johnson will be entitled to an evidentiary hearing if he refiles a properly sworn motion.

FULMER, WHATLEY, and CANADY, JJ., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

DANIEL P. DONOHUE, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-518

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

March 26, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Charles M. Greene, Judge; L.T. Case No. 97-19665CF10A.
Donohue v. State, 2008 Fla. App. LEXIS 4350 (Fla. Dist. Ct. App. 4th Dist., Mar. 26, 2008)

COUNSEL:   Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum, Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   TAYLOR, J. STONE and STEVENSON, JJ., concur.

OPINION BY:   TAYLOR

OPINION  

TAYLOR, J.

Daniel Donohue appeals his judgment of conviction and sentence for indecent assault on a child under the age of sixteen. We affirm the conviction, finding no abuse of discretion in the admission of Williams n1 rule evidence or the denial of appellant’s motion for mistrial based on closing remarks by the state. We also affirm appellant’s sentence, but write to address his argument that his sentence must be reversed based on Donohue v. State (Donohue I), 925 So. 2d 1163 (Fla. 4th DCA 2006), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

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

Williams v. State, 110 So. 2d 654 (Fla. 1959).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

In Donohue I, appellant was convicted of indecent assault on a different victim. There, the trial court imposed an upward departure sentence after determining  [*2]  that the victim, an autistic child, was especially vulnerable. We remanded the case for re-sentencing because this aggravating circumstance was not determined by the jury or admitted by appellant, as required by Blakely and Apprendi.

Appellant argues that Donohue I and this case are indistinguishable. The state responds that this case is different because here, unlike in Donohue I, appellant took the stand and admitted to the aggravating factual circumstances, i.e., the victim’s vulnerability. The state argues that his admission to the facts in issue obviated the need for a jury determination. See Blakely, 542 U.S. at 303.

In Donohue I, just as in this case, the state moved to aggravate the defendant’s sentence pursuant to section 921.0016(3)(j), Florida Statutes, asserting the victim’s vulnerability due to young age and autism. 925 So. 2d at 1164. We remanded for re-sentencing, stating:

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), the United State Supreme Court held: ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable  [*3]  doubt.’ The Supreme Court, in Blakely, 542 U.S. at 303, 124 S.Ct. 2531, defined the statutory maximum as ‘the maximum [the trial judge] may impose without any additional findings’ beyond those ‘reflected in the jury verdict or admitted by the defendant.’ In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court reaffirmed the application of Apprendi’s principles to guidelines sentencing schemes. There, the Court held that imposing a sentence under the federal sentencing guidelines based on ‘additional facts that the sentencing judge found by a preponderance of the evidence’ violated the Sixth Amendment. Id. at 226, 125 S.Ct. 738. Under the Supreme Court’s interpretation of the Sixth Amendment, other than a defendant’s prior convictions, the aggravating circumstances relied upon to exceed the maximum guidelines sentence must be based on (1) findings made by the jury or (2) facts admitted by the defendant.Id. at 1164-65.

The Florida Supreme Court explained in Galindez v. State, 955 So. 2d 517, 523 n.2 (Fla. 2007), that Blakely contemplated facts “admitted by the defendant” to mean facts the defendant admitted in a guilty plea, at sentencing, or in a stipulation  [*4]  at trial, or judicial findings to which the defendant assented. Because appellant’s trial testimony does not fall within any of these categories, we do not find that it constitutes an admission by appellant regarding the victim’s vulnerability. Thus, the trial court committed error by enhancing appellant’s sentence above the guidelines without a specific finding by the jury. Blakely, 542 U.S. at 303.

We conclude, however, that the error was harmless. In Galindez, the supreme court noted that a harmless error analysis applies to Apprendi/Blakely error. 955 So. 2d at 522-23 (discussing Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)). The court stated that the test is “whether the record demonstrates beyond a reasonable doubt that a rational jury would have found [the fact at issue].” Id. at 523. In this case, appellant testified that he volunteered at a school for autistic children to try to help the children and alleviate his own feelings of guilt about his prior acts of child molestation. Appellant said that he knew the victim was autistic and that he had observed his strange mannerisms and behavior. Other witnesses similarly attested to the victim’s age and autism. In sum, there was  [*5]  “clear and uncontested record evidence” of the victim’s young age and vulnerability. Any error in this case was thus harmless beyond a reasonable doubt. See Galindez, 955 So.2d at 524. Accordingly, we affirm the judgment of conviction and sentence.

Affirmed.

STONE and STEVENSON, JJ., concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

NATHANIEL ASH, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5242

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 26, 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; J. Dale Durrance, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Richard J. D’Amico, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.

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

OPINION BY:   CASANUEVA

OPINION  

CASANUEVA, Judge.

Nathanial Ash was convicted by a jury for possession of cannabis within 1000 feet of a church with intent to sell, possession of drug paraphernalia, giving false name to a law enforcement officer, resisting arrest with violence, battery on a law enforcement officer, and tampering with physical evidence. At the time of his arrest for the charges, Mr. Ash was on probation. Because of errors in the sentencing order, we reverse and remand with instructions.

Mr. Ash raises four issues on appeal, only two of which have merit. We affirm without comment the circuit court’s denial of the midtrial motion to suppress the cannabis found on or about Mr. Ash’s person. We also affirm without comment the denial of Mr. Ash’s motion for judgment of acquittal. We address the two remaining issues below.

Probation Violation and  [*2]  Revocation

Because Mr. Ash was on probation for cases 2004-CF-008199 and 2005-CF-006406 at the time of his arrest, the arrest and subsequent jury conviction could result in a violation of his probation. Although the circuit court revoked his probation and adjudicated him guilty of violating his probation, it failed to identify the specific condition(s) of probation that Mr. Ash had violated. Accordingly, we remand this case and direct the circuit court to enter a written order of revocation for cases 2004-CF-008199 and 2005-CF-006406 specifying the condition(s) Mr. Ash was found to have violated. See Cato v. State, 845 So. 2d 250 (Fla. 2d DCA 2003) (remanding with direction to the trial court to enter a formal order of revocation of probation listing the specific conditions that the defendant had violated).

Scrivener’s Error in Written Sentencing Order

Mr. Ash points out, and the State concedes, that the written sentencing order does not comport with the oral pronouncement made at the October 20, 2006, sentencing hearing. Therefore, the circuit court is also directed to issue a new sentencing order that conforms to the court’s oral pronouncement.

Affirmed and remanded with directions.

FULMER  [*3]  and CANADY, JJ., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

JOHN FRANCIS BUTLER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-34

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 26, 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 Pasco County; Joseph A. Bulone, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.

John Francis Butler, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   SILBERMAN, Judge. NORTHCUTT, C.J., and VILLANTI, J., Concur.

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), John Francis Butler challenges his judgments and sentences for attempted murder in the first degree and armed burglary. After conducting a thorough review of the record and considering the briefs filed by counsel and Butler pro se, we affirm the judgments and sentences.

Butler entered into a negotiated no contest plea that called for a sentencing cap of twenty years on the charges. In accordance with the agreement, the trial court sentenced Butler to fifteen years’ imprisonment followed by five years’ probation. Butler did not file a motion to withdraw his plea. Among the issues Butler raises in his pro se brief are issues of ineffective assistance of counsel and the involuntary nature of his plea. Because there is  [*2]  no ineffective assistance of counsel apparent on the face of the record and Butler did not move to withdraw his plea, he is not entitled to any relief on direct appeal on these issues. See Wilson v. State, 814 So. 2d 1203, 1204 (Fla. 2d DCA 2002).

Thus, we affirm Butler’s judgments and sentences without prejudice to any right Butler might have to raise the issues of ineffective assistance of counsel and the involuntary nature of his plea in a timely, facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

NORTHCUTT, C.J., and VILLANTI, J., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites