Florida Criminal Law Opinions

ANGELINE TOWERY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-2074

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 28, 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. STRINGER and CANADY, JJ., Concur.

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

Angeline Towery challenges the order of the postconviction court denying her motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to any right Towery may have to file a facially sufficient rule 3.850 motion alleging that her guilty pleas were involuntarily entered based upon a miscalculation in the sentencing guidelines scoresheet.

In her postconviction motion filed by counsel, Towery alleged that in exchange for a total overall sentence of 62.71 months’ imprisonment, she entered guilty pleas in two cases to the following offenses: trafficking in morphine, a first-degree felony; trafficking in amphetamine, a first-degree felony; possession of cannabis with intent to sell, a third-degree felony; two counts of possession of a controlled substance, a third-degree felony; driving while license suspended or revoked, a third-degree felony; two counts of misdemeanor possession of drug paraphernalia; and misdemeanor driving while license suspended or revoked.  [*2]  n1 She claimed that “[a] reasonable interpretation of the plea colloquy indicates that the state’s offer of 62.71 months was premised upon the fact that the lowest permissible sentence was 62.71 months.” She asserted that her sentencing scoresheet, which was attached as an exhibit to her motion, was incorrectly calculated. She contended that had the scoresheet been correctly calculated, the lowest permissible sentence would have been 49.2 months’ imprisonment rather than 62.71 months’ imprisonment. Because of the alleged error, she claimed that her plea was not voluntary and that trial counsel was ineffective by failing to make sure the scoresheet was accurate.

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As part of the overall sentencing scheme, Towery received a three-year mandatory minimum sentence on each of the drug trafficking counts.
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In its response the State argued that Towery’s plea was to a specific term of incarceration, not an unspecified amount of time based on the guidelines calculations. The State added that “[n]othing in the record supports her contention that the State’s offer of 62.71 months was premised on the incorrect score sheet.” The postconviction court agreed with the State’s argument and denied Towery’s  [*3]  motion.

The transcript of the plea hearing reflects that the prosecutor agreed to forego imposition of the drug trafficking multiplier under Florida Rule of Criminal Procedure 3.704(d)(19) and offered Towery 62.71 months’ imprisonment with a three-year minimum mandatory. The prosecutor noted that Towery had an exposure of approximately seventy-five years’ imprisonment. The transcript also reflects the parties agreed that the quantity of morphine that was the subject of the trafficking count was 6.3 grams rather than the amount charged in the information, greater than fourteen grams but less than twenty-eight grams.

The trafficking in morphine count was scored as the primary offense on the scoresheet. It was scored as a level 8 offense under the offense severity ranking chart in the Criminal Punishment Code. See §§ 893.135(1)(c)(1)(b), 921.0022(3), Fla. Stat. (2004). The scoresheet indicated that the minimum sentence under the guidelines was 62.71 months’ imprisonment. Because the actual amount of the morphine was less than the amount originally charged, it appears that the offense should have been scored as a level 7 offense. See §§ 893.135(1)(c)(1)(a), 921.0022(3). The prosecutor did  [*4]  not amend the scoresheet to reflect the lower offense level, and Towery claimed that had the correction been made, the minimum sentence would have been 49.2 months’ imprisonment.

Although Towery’s claim that her plea was involuntary due to her trial counsel’s failure to object to an inaccurate scoresheet is a cognizable rule 3.850 claim, Towery failed to allege that she would not have entered her plea had she been aware of the correct guidelines sentencing range. See Rankin v. State, 861 So. 2d 1222, 1224 (Fla. 2d DCA 2003). Thus, her motion was facially insufficient. Id. However, the postconviction court did not dismiss the motion as facially insufficient with leave to amend within a reasonable period of time. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007). Instead, the court denied the motion, finding that any scoresheet error was harmless because Towery entered into a negotiated plea for a term of years.

In Harris v. State, 810 So. 2d 1093, 1094 (Fla. 5th DCA 2002), the court recognized that “[s]coresheet errors are harmless when the sentence is the result of a negotiated plea agreement.” Harris had entered his plea in exchange for a four-year sentence rather than a guidelines  [*5]  sentence. Id. Here, Towery pleaded to a specific term of 62.71 months’ imprisonment, which was the exact amount of the minimum sentence under the erroneous scoresheet. In her motion, she asserted that the State’s offer of 62.71 months was premised on the fact that the scoresheet incorrectly reflected 62.71 months as the lowest permissible sentence.

Based on these circumstances, we cannot agree that the record conclusively establishes that the alleged scoresheet error is harmless. Instead, we conclude that if Towery is able to amend her motion to allege that she would not have entered her plea had she known that the minimum guidelines sentence was 49.2 months’ imprisonment rather than 62.71 months’ imprisonment, her claim that her plea was involuntarily entered would be facially sufficient and cognizable. Therefore, we affirm the postconviction court’s order without prejudice to any right Towery may have to file a facially sufficient motion on this basis within sixty days from the date of the issuance of the mandate in this case. Any such motion shall not be considered successive by the postconviction court. We note that if Towery is ultimately successful in having her negotiated plea  [*6]  set aside, then absent a new plea agreement she will be exposed to any legal sentences that could be imposed upon conviction of the charges.

Affirmed.

STRINGER and CANADY, JJ., Concur.

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KENNETH ADAMS, Petitioner, vs. STATE OF FLORIDA, Respondent.

No. SC07-389

SUPREME COURT OF FLORIDA

March 27, 2008, Decided

NOTICE:  

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

PRIOR HISTORY:    [*1]

Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions. (Broward County). Fourth District - Case No. 4D05-4488.
Adams v. State, 946 So. 2d 583, 2006 Fla. App. LEXIS 21244 (Fla. Dist. Ct. App. 4th Dist., 2006)

COUNSEL:   Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, and Celia A. Terenzio and Georgina Jimenez-Orosa, Assistant Attorneys General, West Palm Beach, Florida, for Respondent.

JUDGES:   CANTERO, J. LEWIS, C.J., and WELLS, ANSTEAD, QUINCE, and BELL, JJ., concur. PARIENTE, J., recused.

OPINION BY:   CANTERO

OPINION  

CANTERO, J.

In this case, we decide an issue involving sex offender probation. Many probation orders require a defendant to undergo sex offender treatment, but they do not specify either a deadline for completing it or the consequences for failing to complete the treatment on the first attempt. We must decide whether in such cases, when the defendant enrolls in but fails to complete sex offender treatment, and the probationary period has not expired (thus presumably allowing the defendant to re-enroll in the program), a trial court abuses its discretion in finding the defendant in violation of probation.  [*2]  We review Adams v. State, 946 So. 2d 583, 585 (Fla. 4th DCA 2006), which held that such a finding was not an abuse of discretion. Adams conflicts with decisions of the Second District Court of Appeal holding that, under such circumstances, revoking probation does constitute an abuse of discretion. See Mitchell v. State, 871 So. 2d 1040 (Fla. 2d DCA 2004), review dismissed, 911 So. 2d 93 (Fla. 2005); Gessner v. State, 890 So. 2d 565, 566 (Fla. 2d DCA 2005). We have jurisdiction, see art. V, § 3(b)(3), and accepted review to resolve the conflict. See Adams v. State, 963 So. 2d 702 (Fla. 2007) (accepting review).

We hold that, even where the probation order does not specify a deadline for completing a sex offender program or how many attempts the probationer has to complete it, where a defendant enrolls in but fails to complete a sex offender treatment program, a trial court may, in its discretion and depending on the circumstances, revoke the defendant’s probation. We base our conclusion in large part on our recent decision in Lawson v. State, 969 So. 2d 222, 228 (Fla. 2007), which considered the identical issue in the context of drug treatment as a condition of probation. We therefore  [*3]  approve Adams and disapprove the conflicting opinions in Mitchell and Gessner. We further hold that, under the circumstances of this case, the trial court did not abuse its discretion in revoking Petitioner’s probation.

I. FACTS AND PROCEDURAL HISTORY

Petitioner, Kenneth Adams, was charged with one count each of lewd or lascivious molestation and lewd or lascivious exhibition on an eleven-year-old girl. He pled guilty, was declared a sexual predator and habitual offender, and was sentenced to two years of community control followed by three years of sex offender probation. Within thirty-seven days of the sentencing, Adams’s probation officer twice filed affidavits alleging that he had violated his community control. After the first violation, the trial court reinstated Adams’s community control. After the second, however, the court revoked his community control and probation and placed him on six years of sex offender probation with the special condition that he serve 364 days in jail. One of the standard sex offender conditions required him to “enter, actively participate in, and successfully complete a sex offender treatment program with a therapist particularly trained to treat sex  [*4]  offenders.”

On June 22, 2005, Adams was released from jail. On August 1, his probation officer filed yet another affidavit, this time alleging that Adams failed to fulfill the condition of sex offender treatment. At the revocation hearing, the probation officer testified that on two separate occasions, Adams was informed of the conditions of his probation. Adams told the officer that he was able to pay the costs of supervision and that he was working at a car wash six or seven days a week. Before the violation, Adams told the officer that he was attending counseling. Adams never told him that he could not afford it. When arrested, however, Adams said that “he just didn’t have the money and he just didn’t go.”

At the revocation hearing, the director of the sex offender treatment program testified. At the initial intake appointment, he informed Adams of the program fees, which were: $ 50 for the initial intake, $ 25 for the first two months of group sessions, and then a likely increase to the standard $ 35. Although Adams did not make any payments, the program does not terminate anyone for inability to pay. The director believed Adams was aware of this policy because he normally instructs  [*5]  new intakes as much, but he could not remember whether he told Adams. Adams told the director he had a job, and did not at any time indicate he could not afford the fees.

The director assigned Adams to a group program. Adams attended the first session, but left the director a message canceling the next one because he had to work. Because rescheduling is permitted for legitimate reasons, Adams was not terminated for missing that session. However, Adams also failed to call or appear at the next two sessions. When a client misses two successive sessions for unexcused reasons, the program’s policy is to terminate the client. Therefore, Adams was terminated for “non compliance with the treatment program.”

Adams testified that he was told that he had to “enter, actively participate and successfully complete the sex offender treatment program.” He also admitted that he was told the course requirements. He claimed, however, that he was not told he could continue without paying. He lived with his mother after his release from jail and made about $ 635 during the fifteen days he worked in late June and July. He gave half of his income to his mother for rent and living expenses and used the remainder  [*6]  for food and clothing. Adams testified that he did not attend the sessions because he did not have the money and did not know how he would be treated. He thought that if he did not pay, he would be terminated from the program. Adams admitted, however, that he never told the program director that he could not attend because he could not pay the fees.

Based on Adams’s two successive absences, the trial court found him in willful and substantial violation of his probation for failing to actively participate in and successfully complete the sex offender treatment program. The court found the violation willful because Adams had been informed of the program requirements (i.e., that two successive unexcused missed sessions would result in termination) and had the ability to pay for the sessions. The court concluded the violation was substantial because “sex offender probation and the treatment programs are absolutely essential to the well-being of not only Mr. Adams, but to the protection of society and any potential future victims . . . as a result of his not getting the necessary care and treatment.” The trial court also found that Adams had demonstrated a pattern of violating probation.  [*7]  The court therefore revoked Adams’s probation and sentenced him to eleven years in prison followed by ten years of sex offender probation.

On appeal, Adams argued that the trial court abused its discretion because the probation order did not specify a time period for completion of sex offender treatment or how many chances he had to complete it. Adams, 946 So. 2d at 585. The Fourth District Court of Appeal rejected his argument and affirmed the trial court based on “competent testimony that Adams had the resources to pay for his treatment, was aware he would be accommodated if he could not pay, and simply failed to attend.” Id. at 586.

Adams conflicts with decisions of the Second District. In Mitchell, the Second District ordered that a violation of a sex offender treatment condition be stricken where

the sex offender treatment condition only stated that Mitchell needed to complete the program. It did not specify that treatment had to be successfully completed on the first try or how many chances he would be given to complete the program. Accordingly, the State failed to prove that the violation of [the sex offender treatment condition] was willful and substantial, and the trial court  [*8]  abused its discretion in finding that the condition was violated.871 So. 2d at 1042; see also Gessner, 890 So. 2d at 565 (where the probation order did not provide a scheduled time for the defendant to successfully complete the program or provide how many chances he would have to complete it, holding that because the defendant still had time to successfully complete a sex offender treatment program, the State did not establish a willful and substantial violation). n1 We now resolve the conflict.

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In both Mitchell and Gessner, the Second District certified conflict with the Fifth District’s decision in Woodson v. State, 864 So. 2d 512 (Fla. 5th DCA 2004). We dismissed review of Woodson, finding the case “factually and legally distinguishable” from the case with which it certified conflict, Young v. State, 566 So. 2d 69 (Fla. 2d DCA 1990). Woodson v. State, 889 So. 2d 823 (Fla. 2004). We likewise dismissed review of Mitchell. See Mitchell v. State, 911 So. 2d 93, 93 (Fla. 2005) (”Consistent with our decision in Woodson v. State, 889 So. 2d 823 (Fla. 2004), we conclude that review herein was improvidently granted, and we hereby dismiss this review proceeding.”). The parties did not seek  [*9]  review in Gessner. We reject the State’s argument that our dismissals in these cases (or others) indicate we do not have jurisdiction in this case. As explained above, Adams conflicts with Mitchell and Gessner. Therefore, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
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II. ANALYSIS

The conflict issue here is whether, where the probation order does not specify the number of attempts the defendant has to complete a sex offender treatment program or impose a time limit for completion, it remains within the trial court’s discretion to find a defendant in violation of probation for failing to complete the program. While a trial court’s decision to revoke probation is generally reviewed for an abuse of discretion, the issue presented is a question of law subject to de novo review. See Lawson, 969 So. 2d at 228. Based substantially on our decision in Lawson, we hold that the failure of a probation order to include specific deadlines or the number of attempts the defendant will be given to complete sex offender treatment does not eliminate the trial court’s discretion to revoke sex offender probation for failure to complete the program on the first try. We also hold that the trial court  [*10]  did not abuse its discretion in revoking probation in this case.

Below, we (A) detail our recent decision in Lawson, 969 So. 2d 222, rejecting a per se abuse of discretion rule in situations involving substance abuse treatment probation; (B) explain why the same analysis applies to sex offender treatment; and (C) conclude that the trial court did not abuse its discretion in revoking Adams’s probation.

A. Lawson

Adams argues that the failure to inform him that his first attempt at sex offender treatment had to be successful violates due process. In Lawson, 969 So. 2d at 225, we rejected a nearly identical argument, the only difference being that the case involved substance abuse treatment instead of sex offender treatment. Therefore, our consideration of Petitioner’s argument must begin (and may end) with an analysis of that case.

Our decision in Lawson also concerned the extent of a trial court’s discretion in finding a violation of probation. We first reiterated “that the grant of probation ‘rests within the broad discretion of the trial judge and is a matter of grace rather than right.’” Id. at 229 (quoting Bernhardt v. State, 288 So. 2d 490, 494 (Fla. 1974)). We further explained that  [*11]  “[j]ust as there is broad discretionary power to grant the privilege of probation, the trial court has equally broad discretion to revoke it.” Id. After detailing the statutes related to court-ordered drug treatment, we concluded: “Based on these statutory provisions, the Legislature’s concern with court-ordered treatment programs . . . is clear–rehabilitation pursuant to an individualized treatment plan. . . . [B]ecause the circumstances of treating each substance abuse problem are unique to that individual, trial courts must be able to operate with an element of flexibility . . . .” Id. at 231-32. We held:

[A] trial court could be well within its discretion in finding a willful and substantial violation where a defendant fails to complete a court-ordered drug treatment program, even though the order did not specify how many chances the defendant had to complete the program or when it had to be completed. Probation orders need not include every possible restriction so long as a reasonable person is put on notice of what conduct will subject him or her to revocation. . . . [A] probationer who has been given the privilege of being placed on probation, in lieu of serving jail time, is  [*12]  put on adequate notice that the treatment program should be undertaken at the beginning of the probationary period and that, if he or she is discharged for nonattendance, he or she may not have another chance to complete the program.Id. at 235.

Thus, in the context of substance abuse, Lawson rejected a bright-line rule “that a trial court may never find that a probationer substantially and willfully violated probation after being discharged from a drug treatment program for nonattendance if the probation order fails to specify the number of attempts allowed or set a specific time parameter for completion.” Id. at 234. We noted that “such a rule may undermine the trial court’s ability to ‘consider each violation on a case-by-case basis for determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence.’” Id. at 236 (quoting State v. Carter, 835 So. 2d 259, 261 (Fla. 2002)). However, we limited our decision to drug treatment programs and did not address other “distinct categories of treatment programs.” Id. at 225 n.1.

Today, we resolve the issue as it relates to sex offender treatment.  [*13]  For the reasons explained in the next section, we find the statutes addressing sex offender treatment reflect the same desire for “rehabilitation pursuant to an individualized treatment plan,” and a corresponding need for trial court flexibility. We therefore hold that the reasoning of Lawson applies.

B. Sex Offender Treatment

To decide whether the reasoning of Lawson applies to the context of sex offender treatment, we must review the applicable statutes. Section 948.30, Florida Statutes (2007), requires the imposition of mandatory standard conditions of probation for certain sex offenders. The condition at issue here–”[a]ctive participation in and successful completion of a sex offender treatment program”–is one such condition. See § 948.30(1)(c), Fla. Stat. (2007) (previously codified at § 948.03(5)(a)(3), Fla. Stat. (2003)). The statutes applicable to sex offender probation emphasize the individualized nature of treatment. For example, the very definition of sex offender probation provides that it is “a form of intensive supervision . . . which emphasizes treatment and supervision of a sex offender in accordance with an individualized treatment plan. ” § 948.001(10), Fla. Stat.  [*14]  (2007) (emphasis added); see also § 948.31, Fla. Stat. (2007) (providing for diagnosis, evaluation, and treatment of offenders placed on probation or community control for certain sex offenses or child exploitation, including a requirement that the court be provided a “plan for counseling for the individual“) (emphasis added).

The legislative goal of individualized treatment, as well as other policies behind probation, also favors individualized determinations of whether the failure to complete a treatment program constitutes a violation of probation. In Woodson, the Fifth District analyzed the statute and the goals of imposing sex offender probation to conclude:

While the Legislature has clearly indicated that the emphasis of sex offender probation is treatment of the offender, the concomitant goals of rehabilitation and protection of society once the sex offender is released on supervision may only be accomplished if the offender undertakes immediate treatment, as required by section 948.03(5)(a)3. It makes no sense to release the offender into society on a lengthy term of probation only to allow the offender the discretion to undertake treatment several years later toward the end  [*15]  of the probationary period. Releasing a sex offender, untreated, does not alleviate the concern that he or she will reoffend and affords no protection to society. Moreover, a requirement that provides additional chances for treatment in the future before expiration of the probationary period after willful failure to actively participate in and complete a sex offender treatment program, simply because the offender expresses a willingness to comply at a later date, opens the door to mischievous manipulation by the offender and thwarts all of the goals of probation.

. . . .

We believe that affording the trial court discretion in determining whether a violation of sex offender probation is willful and substantial, and the penalty to be imposed for a violation, provides the court with flexibility in imposing just punishments for probation violations, comports with legislative intent and fosters the goal of imposing probation as a criminal sanction.864 So. 2d at 516-17 (footnote omitted); see also Woodson, 889 So. 2d at 824 (Pariente, C.J., concurring) (”Because each [sex offender] treatment plan is individualized, it is not always realistic for the trial judge to specify time parameters for  [*16]  completion at the time of sentencing.”). We agree.

Sex offender treatment, like drug treatment, focuses on “rehabilitation pursuant to an individualized treatment plan.” Lawson, 969 So. 2d at 232; see §§ 948.001(10), 948.30(1)(c), 948.31, Fla. Stat. (2007). As with the probationary condition of drug treatment, trial courts must have the flexibility to address particular circumstances. We therefore conclude, consistent with Lawson, that even where the probation order fails to specify the number of chances the defendant has to complete the program or impose a time limit for compliance, the trial court retains discretion to find a defendant in willful and substantial violation of probation for failure to attend and complete a sex offender treatment program.

C. Abuse of Discretion in this Case

Having concluded that the trial court does not automatically abuse its discretion in these situations, we must decide whether the trial court abused its discretion in revoking Adams’s probation. We hold it did not. Adams, who has a long criminal history, pled guilty to lewd and lascivious exhibition and molestation on an eleven-year-old child and was sentenced to community control and probation. Within  [*17]  only thirty-seven days of his sentencing, his probation officer filed two affidavits of violation. The second resulted in revocation of his community control and probation. Adams was then placed on six years of sex offender probation with the special condition that he serve 364 days in jail. After his release from jail, Adams was informed of the program requirements. Yet he attended only one of his scheduled group sex offender treatment sessions before being terminated for two consecutive unexcused absences.

As stated above, the trial court found Adams’s violation was both willful and substantial. It was willful because he had been informed that two successive unexcused absences would result in termination, and he had the ability to pay for the sessions. It was substantial because of the importance of sex offender treatment to the offender and to society. The trial court also stressed that Adams had demonstrated a pattern of probation violations.

The trial court did not abuse its discretion in finding that Adams’s violation of probation was willful. See Mills v. State, 840 So. 2d 464, 467 (Fla. 4th DCA 2003) (”Generally, un-excused absences from required therapeutic programs constitute  [*18]  willful violations of probation.”) (quoting Marcano v. State, 814 So. 2d 1174, 1176 (Fla. 4th DCA 2002)). We have recognized that a violation is not willful where it is based on inability to pay court-ordered costs. See Stephens v. State, 630 So. 2d 1090, 1091 (Fla. 1994) (”[B]efore a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.”). Although Adams claims he was unable to pay for the program, he never communicated such a concern to the program’s director, and he was not terminated because of his failure to pay. Rather, as the Fourth District recognized, he was terminated for two consecutive unexcused absences. See Adams, 946 So. 2d at 585. The program’s director testified that he does not terminate anyone for inability to pay. Adams raised his ability to pay as an issue only when he was arrested for the violation. The trial court rejected his explanation. The court instead concluded that, as Adams testified, even after helping his mother pay expenses, he still had sufficient income to pay for treatment. The trial court was well within its discretion  [*19]  in rejecting his excuse as unpersuasive. See Carter, 835 So. 2d at 262 (”The trial court is in a better position to identify the probation violator’s motive, intent, and attitude and assess whether the violation is both willful and substantial.”). In sum, the trial court imposed a reasonable treatment condition, Adams was aware of the program requirements, and he had a reasonable opportunity to attend treatment. He simply failed to do so. Adams’s pattern of violating community control and probation also supports the trial court’s findings.

Nor did the trial court abuse its discretion in finding that the violation was substantial. As the trial court found, sex offender probation and the treatment programs are essential not only to Adams’s well-being and rehabilitation, but also to the protection of society and any potential future victims.

Finally, although Adams expressed willingness to reenroll in the program, whether he should be given such an opportunity is within the trial court’s discretion. See Woodson, 864 So. 2d at 517 (”If immediate initial attempts are unsuccessful and the defendant expresses a willingness to try again, other chances at compliance are a matter that should be  [*20]  left to the sound discretion of the trial court.”).

III. CONCLUSION

Adopting a bright-line rule requiring probation orders to specify the number of attempts the defendant will be given to complete sex offender treatment, or the time parameters for completing treatment, would limit the trial courts’ needed flexibility. Therefore, consistent with our recent decision in Lawson, 969 So. 2d 222, we hold that even if a sentencing order does not specify the number of chances the defendant will be given to complete sex offender treatment or a deadline for completing it, a trial court retains the discretion to find a defendant who enrolls in but fails to complete sex offender treatment in willful and substantial violation of probation. We therefore approve the Fourth District’s decision in Adams and disapprove the Second District’s decisions in Mitchell and Gessner. However, we encourage trial courts to emphasize the importance of these programs and the potentially grave consequences attendant to the failure to begin and complete treatment.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, QUINCE, and BELL, JJ., concur. PARIENTE, J., recused.

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GUS LANIER, Petitioner, vs. STATE OF FLORIDA, Respondent. GUS LANIER, Petitioner, vs. ROBERT L. PARKER, etc., Respondent.Nos. SC07-1568, SC07-1629, SC07-1839 & SC07-2062

SUPREME COURT OF FLORIDA

March 27, 2008, Decided

NOTICE:

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

PRIOR HISTORY: Lanier v. State, 973 So. 2d 1122, 2007 Fla. LEXIS 2468 (Fla., 2007)

COUNSEL: [*1] Gus Lanier, Pro se, Miami, Florida, for Petitioner.

JUDGES: LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION

Original Proceeding — Prohibition

Two Original Proceedings — Mandamus

And an Original Proceeding — Habeas Corpus

PER CURIAM.

Gus Lanier filed a petition for writ of prohibition (Lanier v. State, Case No. SC07-1568), petition for writ habeas corpus (Lanier v. Parker, Case No. SC07-2062), and petitions for writs of mandamus (Lanier v. State, Case No. SC07-1629; Lanier v. State, Case No. SC07-1839), which were consolidated for purposes of consideration and dismissed by the Court on December 14, 2007. [decision now reported at 973 So. 2d 1122] Because of his numerous meritless petitions filed in this Court, we retained jurisdiction and ordered Lanier on that date to show cause why this Court should not find that he has abused the legal system process and impose upon him a sanction for such abuse, including, but not limited to directing the Clerk of this Court to reject for filing any future pleadings, petitions, motions, letters, documents, or other filings submitted to this Court by him unless signed by a member of The Florida Bar. We now sanction Lanier.

Petitioner had previously been sanctioned by [*2] the Court for abuse of the judicial process, see Lanier v. State, 908 So. 2d 332 (Fla. 2005), Lanier v. State, No. SC02-2139 (Fla. Oct. 25, 2004) (unpublished). Subsequent to the sanction in 2005, and not including the instant cases, Lanier initiated no fewer than thirteen separate proceedings in this Court in approximately two and a half years. The Court has never granted Lanier the relief he has requested in any of these proceedings. See Lanier v. Parker, No. SC06-2256, 2006 Fla. LEXIS 3091 (Fla. Nov. 28, 2006) (transferring petition for writ of habeas corpus); Lanier v. Parker, No. SC07-1247, 2007 Fla. LEXIS 2523 (Fla. July 11, 2007) (same); Lanier v. State, No. SC07-1439, 2007 Fla. LEXIS 2526 (Fla. Aug. 16, 2007) (transferring petition for writ of mandamus); Lanier v. State, No. SC07-1483, 2007 Fla. LEXIS 2521 (Fla. Aug. 9, 2007) (transferring appeal); Lanier v. State, No. SC07-1496, 2007 Fla. LEXIS 2525 (Fla. Aug. 16, 2007) (transferring petition for writ of mandamus); Lanier v. State, 965 So. 2d 122 (Fla. 2007) (dismissing discretionary review proceeding for lack of jurisdiction); Lanier v. State, 965 So. 2d 823 (Fla. 2007) (dismissing appeal for lack of jurisdiction); Lanier v. McDonough, No. SC07-1703, 2007 Fla. LEXIS 2524 (Fla. Oct. 16, 2007) (transferring petition for writ of mandamus); [*3] Lanier v. State, 969 So. 2d 1013 (Fla. 2007) (dismissing appeal for lack of jurisdiction); Lanier v. State, 969 So. 2d 1013 (Fla. 2007) (same); Lanier v. State, No. SC07-1843, 2007 Fla. LEXIS 2522 (Fla. Oct. 3, 2007) (transferring appeal); Lanier v. State, 969 So. 2d 1013 (Fla. 2007) (dismissing appeal for lack of jurisdiction); Lanier v. State, 970 So. 2d 342 (Fla. 2007) (same). The Court also notes that currently pending are two petitions from Lanier seeking to invoke this Court’s conflict jurisdiction (Lanier v. State, Case No. SC07-1970, 2008 Fla. LEXIS 400; Lanier v. State, Case No. SC07-1971, 2008 Fla. LEXIS 427).

Lanier has not responded to this Court’s order to show cause and therefore has failed to show cause why he should not be sanctioned. He did, however, file a new petition for writ of habeas corpus, on January 11, 2008, seeking to raise a pretrial challenge concerning new criminal charges pending against him (Lanier v. Parker, Case No. SC08-23). This Court and the United States Supreme Court have, when deemed necessary, exercised the inherent judicial authority to sanction an abusive litigant. See, e.g., Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 3, 113 S. Ct. 397, 121 L. Ed. 2d 305 (1992); In re Sindram, 498 U.S. 177, 180, 111 S. Ct. 596, 112 L. Ed. 2d 599 (1991); [*4] In re McDonald, 489 U.S. 180, 184, 109 S. Ct. 993, 103 L. Ed. 2d 158 (1989); May v. Barthet, 934 So. 2d 1184, 1187 (Fla. 2006); Jean v. State, 906 So. 2d 1055, 1056-57 (Fla. 2005); Armstead v. State, 817 So. 2d 841, 842-843 (Fla. 2002); Peterson v. State, 817 So. 2d 838, 840-41 (Fla. 2002); Jackson v. Fla. Dept. of Corr., 790 So. 2d 398, 400-02 (Fla. 2001); Rivera v. State, 728 So. 2d 1165, 1166 (Fla. 1998); Attwood v. Singletary, 661 So. 2d 1216, 1217 (Fla.1995). One justification for such a sanction lies in the protection of the rights of others to timely review of their legitimate filings. See Martin, 506 U.S. at 3 (imposing sanction where petitioner’s filings for certiorari review had a deleterious effect on the Court’s fair allocation of judicial resources); see also Peterson, 817 So. 2d at 840 (”This Court has a responsibility to ensure every citizen’s right of access to the courts. . . . A limitation on [the petitioner’s] ability to file would further the constitutional right to access for other litigants because it would permit this Court to devote its finite resources to the consideration of legitimate claims filed by others.”). As noted by the United States Supreme Court, “[e]very paper filed with the Clerk [*5] of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. at 184.

Upon a thorough review of Lanier’s filings with this Court, we conclude that petitioner’s repetitive filings raising criminal pretrial issues has hindered the ability of this Court to resolve those matters that are properly before the Court. Sanctions are merited on this record. Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject for filing any future pleadings, petitions, motions, documents, or other filings submitted by Gus Lanier, unless signed by a member in good standing of The Florida Bar. Under the sanction herein imposed, Lanier is not wholesale being denied access to the courts. He may petition the Court through the assistance of counsel whenever such counsel determines that the proceeding may have merit and can be filed in good faith. However, Lanier’s abusive filings must immediately [*6] cease. Further, if Gus Lanier continues to abuse the processes of this Court, he may be subject to further contempt proceedings or other appropriate sanctions.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

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Dimy Paraison, Appellant, vs. The State of Florida, Appellee.

No. 3D06-849

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

March 26, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court for Miami-Dade County, Peter Lopez, Judge. Lower Tribunal No. 01-3354.

COUNSEL:   Bill McCollum, Attorney General, and Maria Lauredo, Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender, and Angel L. Fleming, Assistant Public Defender, for appellee.

JUDGES:   Before COPE, RAMIREZ * and WELLS, JJ.
*

Judge Ramirez did not hear oral argument, but participated in the decision.

OPINION BY:   WELLS

OPINION  

WELLS, Judge.

Dimy Paraison appeals from a judgment of conviction and sentence entered following a guilty plea reserving the right to appeal denial of his motions to exclude a number of hearsay statements. We affirm the conviction and sentence finding no reversible error has been demonstrated.

Paraison’s convictions for armed burglary with assault/battery, kidnapping with a weapon, and armed robbery with a firearm stem from an early morning burglary of an elderly woman, Mrs. Whitehead, during which Mrs. Whitehead was battered, robbed, and bound with duct tape. After the intruders left, Mrs. Whitehead freed herself and called emergency services and her son, Ira, whom she told that she had been robbed. On hearing this news, Ira dropped the telephone and drove to his mother’s home,  [*2]  arriving only three to five minutes later.

When he arrived, the police were already at his mother’s house. A window had been broken and the house had been ransacked. Mrs. Whitehead was found lying on the kitchen floor in her nightgown with remnants of duct tape wrapped around her wrists, face and neck. Although nervous and apparently in shock, Mrs. Whitehead was able to tell two police officers (Officers Dixon and Hayes) and her son what had occurred that night. She told them that she had been awakened by two black men brandishing guns, who told her that they knew she operated a business in Liberty City and that she kept cash in the house. She also told them that after demanding money, the intruders forced her to go from room to room; took any cash that they found and ransacked each room as they went; hit her, forced medication down her throat, and threw water in her face; threatened to lock her in the trunk of her car and abandon it; tied her to a chair with duct tape; and stole between one hundred seventy-five thousand and one million dollars in cash. She also recounted how she had freed herself after the intruders left and called emergency services and her son.

Paraison ultimately  [*3]  was arrested and charged with burglary of Mrs. Whitehead’s home and of robbing, assaulting, and kidnapping her. After learning that Mrs. Whitehead had died, Paraison moved in limine to exclude “any mention of alleged excited utterances made by Mrs. Whitehead . . . to Detective Dixon and Officer Hayes,” claiming that none of Mrs. Whitehead’s statements to these officers were excited utterances admissible as an exception to the hearsay rule and that introduction of such testimony would violate Paraison’s Sixth Amendment right of confrontation as recognized in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). See § 90.803(2), Fla. Stat. (2004) (excepting from section 90.802 making hearsay evidence inadmissible, “[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”). Following an evidentiary hearing, the motion was denied. Paraison thereafter agreed to plead guilty as charged, expressly reserving the right to appeal as dispositive “Crawford as it relates to Ira Whitehead and as it relates to Officer Hayes.” n1

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The prosecutor conceded that the statements made to Detective Dixon  [*4]  were too remote to be considered excited utterances, and the trial court excluded those statements.
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Paraison argues here that all of Mrs. Whitehead’s statements to Officer Hayes must be excluded under Crawford as they are testimonial out-of-court statements by a witness unavailable for prior cross-examination and trial. We agree. In Crawford, the United States Supreme Court held that admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if “(1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant.” State v. Lopez, 974 So. 2d 340, 33 Fla. L. Weekly S22, S24 (Fla. Jan. 10, 2008). There is no dispute that Paraison had no opportunity to cross-examine Mrs. Whitehead before she died or that she is unavailable to testify at trial. Nor is there any question that her statements to Officer Hayes were testimonial.

In Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the United States Supreme Court set forth the parameters for determining whether a statement is testimonial or not. As Davis explains, non-testimonial statements are those made for the purpose of obtaining  [*5]  assistance to meet an ongoing emergency; testimonial statements are those made under circumstances that objectively indicate that there is no ongoing emergency and that the primary purpose of the questioning is to establish or prove past events potentially relevant to later criminal prosecution:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.Davis, 547 U.S. at 822.

Thus, in Davis, the Court concluded that statements made to a 911 emergency operator while the declarant was being attacked by the defendant were non-testimonial statements; whereas, statements made by a declarant to a police officer shortly after a domestic attack which recounted the events which had already occurred were testimonial.

In this case, there was no ongoing emergency at the time Officer Hayes interviewed  [*6]  Mrs. Whitehead. Officer Hayes was simply interviewing the victim of a crime to ascertain the facts necessary to establish criminal activity, assist in further investigation, and further a possible future prosecution. Because Mrs. Whitehead’s statements to Officer Hayes were testimonial, they fall within Crawford. And, because Paraison had no opportunity to cross-examine Mrs. Whitehead before her death and she will be unavailable to testify at trial, her statements to Officer Hayes should have been precluded. See Lopez, 33 Fla. L. Weekly at S24. By the same token, Mrs. Whitehead’s son cannot testify as to what he overheard his mother say to Officer Hayes. However, Mrs. Whitehead’s statement that she had been robbed, made while calling for help, is admissible because it is an excited utterance admissible under section 90.803(2) of the Florida Statutes and because it is non-testimonial, and thus outside Crawford, Davis, and Lopez. See Barron v. State, 32 Fla. L. Weekly D2002 (Fla. 3d DCA Aug. 22, 2007) (concluding that two anonymous phone calls placed close to a violent event were admissible as either spontaneous statements under section 90.803(1) or excited utterances under section 90.803(2));  [*7]  see also Davis, 547 U.S. at 822 (confirming that statements made for the primary purpose of obtaining assistance are non-testimonial); Towbridge v. State, 898 So. 2d 1205, 1206 (Fla. 3d DCA 2005) (holding Crawford inapplicable to non-testimonial spontaneous statements); Herrera-Vega v. State, 888 So. 2d 66, 67 (Fla. 5th DCA 2004) (concluding that a spontaneous statement to a parent by a child regarding sexual abuse was not testimonial).

Mrs. Whitehead’s statements to her son when he first arrived at her home are also admissible because they too are excited utterances and non-testimonial. According to Mr. Whitehead, he arrived at his mother’s home only minutes after she called for help. There, he found his frightened, shaking, and hysterical mother who kept repeating to him:

Son, why they kept hitting me? I cooperate with them. . . . Baby boy, I got — I don’t know why they kept hitting me, baby boy. . . they kept — went from one room to another room . . . [w]hy they keep hitting me? I gave them what they want. I had — did everything they said to do. I said I would cooperate with you. . . . They taped me up.

These statements, as the trial court found, are admissible as excited utterances.  [*8]  See § 90.803(2), Fla. Stat. (2004). They are also admissible because the circumstances surrounding them objectively indicate that their primary purpose was not testimonial, but to relate to a close family member what had happened to garner assistance and support. As our Supreme Court has recognized, such spontaneous statements to family or friends are not likely to be testimonial under Crawford:

Most courts agree that a spontaneous statement to a friend or family member . . . is not likely to be testimonial under Crawford. See, e.g., People v. Vigil, 127 P.3d 916, 927-28 (Colo. 2006) (holding that an excited utterance a child made to his father and his father’s friend immediately after a sexual assault was not testimonial); State v. Rivera, 268 Conn. 351, 844 A.2d 191, 205 (2004) (holding that statement declarant made in confidence and on his own initiative to a close family member was not testimonial); Demons v. State, 277 Ga. 724, 595 S.E.2d 76, 80 (2004) (holding that an excited utterance made to a friend was not testimonial); Woods v. State, 152 S.W.3d 105, 114 (Tex. Crim. App. 2004) (holding that a codefendant’s spontaneous statements to two different third-party acquaintances  [*9]  were not testimonial because they were casual, spontaneous “street corner” statements), cert. denied, 544 U.S. 1050, 125 S.Ct. 2295, 161 L.Ed.2d 1092 (2005); State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811, 824 (2005) (holding that a statement made by a declarant to his girlfriend in their apartment implicating the defendant in a murder was not testimonial). In fact the Supreme Court even recognized that a person who makes a casual remark to an acquaintance does not “bear testimony” in the sense that “[a]n accuser who makes a formal statement to government officers” does. Crawford, 541 U.S. at 51, 124 S.Ct. 1354; see also United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir.2004) (noting comments made to “loved ones or acquaintances . . . are not the kind of memorialized, judicial-process-created evidence of which Crawford speaks”).Franklin v. State, 965 So. 2d 79, 91 (Fla. 2007).

In this case, Mrs. Whitehead’s statements to her son were not testimonial and were, therefore, properly determined to be admissible by the court below. n2

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The fact that a police officer might have overheard this conversation between mother and son does not render it testimonial. See Mencos v. State, 909 So. 2d 349, 351 (Fla. 4th DCA 2005)  [*10]  (confirming that a statement made by a victim to her mother which was overheard by a police officer was not testimonial).
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Because the trial court properly concluded that Mrs. Whitehead’s statements directly to her son over the telephone and after he first arrived at her home were admissible, the plea agreement and sentence must be affirmed. This testimony, combined with evidence that Paraison’s fingerprint was found inside Mrs. Whitehead’s home; that Paraison’s DNA was identified on a wool cap found inside the home; and that Paraison made an incriminating post-Miranda statement to the police, confirm that the instant ruling on application of Crawford to some of the statements made by Mrs. Whitehead is not dispositive.

The judgment and sentence on appeal are therefore affirmed.

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ROBERT PHILIP FEHRINGER, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-2666

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

March 26, 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, Okeechobee County; Sherwood Bauer, Jr., Judge; L.T. Case No. 2006CF563.

COUNSEL:   Carey Haughwout, Public Defender, Dea Abramschmitt, Assistant Public Defender, and Natalie K. Stevens, Certified Legal Intern, West Palm Beach, for appellant.

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

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

OPINION BY:   TAYLOR

OPINION  

TAYLOR, J.

The defendant appeals his criminal conviction and sentence for lewd or lascivious conduct committed on a victim less than 16 years old by an offender 18 years old or older. The defendant’s principal point on appeal is that the trial court erred by prohibiting defense counsel from proffering the minor victim’s testimony regarding a prior accusation of sexual assault she made against another man. We agree that the failure to permit the proffer was reversible error, requiring a new trial.

H.S. was born on December 19, 1992. She was in the 7th grade at the time of the incident that led to these charges against the defendant. The defendant was 37 years old and a close friend of H.S.’s father. In May 2006 she was in  [*2]  the car alone with the defendant when he picked her up from the bus stop. She testified that the defendant stopped the car and unbuttoned her pants and “started messing with me.” She testified that he placed his right hand beneath her underwear and touched her pubic hair area. This lasted only about a second, because H.S. was pushing him away and telling him to stop. The defendant then took her home.

In a taped controlled phone call, the defendant admitted to touching H.S.’s “stomach area.” In his taped police interrogation, the defendant admitted touching H.S. on her left hipbone and said that he did this because they were discussing his giving her a tattoo there. He denied touching her pubic area. In his taped statement, the defendant also claimed that H.S. had made accusations against a guy named Lyle and that her dad had run Lyle off.

The defendant was charged by amended information with lewd or lascivious molestation — offender 18 or older, victim 12 to 16 and lewd or lascivious conduct — offender 18 or older.

During H.S.’s cross-examination at trial, the following occurred:

Q: Now you’ve told that someone else has touched you before, right?

A: Yeah.

Q: (INDISCERNABLE)

MR. WELLS: Objection,  [*3]  Your Honor, relevance. May we approach?

COURT: You may?

MR. WELLS: This is beyond the scope of cross examination and it’s also not relevant um, at this time.

Defense counsel argued that her question was relevant to show the witness’s possible bias, prejudice, motive, intent, and accuracy. She advised the court that during the defendant’s controlled phone conversation and H.S.’s statement at her deposition, there was some mention of similar accusations H.S. had made against another person. During a lengthy bench conference that followed (much of which was indiscernible to the court reporter), defense counsel submitted case law to the court on the relevance of prior similar allegations by a witness. She asked to proffer testimony of H.S. on this line of questioning outside the presence of the jury. Concerned that defense counsel had no evidence or reasonable basis to believe that H.S.’s previous allegations were false (other than the fact that the alleged offender had apparently not been charged with a crime), the trial court ultimately sustained the state’s objection to a “fishing expedition” and refused to permit the proffer.

The defendant was found not guilty of lewd or lascivious molestation,  [*4]  but guilty of lewd or lascivious conduct, victim less than 16, defendant 18 or older (a lesser included offense).

The primary purpose of a proffer is to include the proposed evidence in the record so that the appellate court can determine whether the trial court’s ruling was correct. Rozier v. State, 636 So. 2d 1386, 1387 (Fla. 4th DCA 1994). A trial court commits error if it denies a request to proffer testimony which is reasonably related to the issues at trial. Wood v. State, 654 So. 2d 218, 220 (Fla. 1st DCA 1995). This is so because refusing to permit the proffer precludes full and effective appellate review. Rozier, 636 So. 2d at 1387; B.K.F. v. State, 614 So. 2d 1167, 1168 (Fla. 2d DCA 1993); Pender v. State, 432 So. 2d 800, 802 (Fla. 1st DCA 1983); Brown v. State, 431 So. 2d 247, 248 (Fla. 1st DCA 1983). The disallowance of a proffer “thwarts a defendant’s right to cross examine witnesses guaranteed by the sixth amendment and article I, section 16 of the Florida Constitution.” Rozier, 636 So. 2d at 1388; see also Pender, 432 So. 2d at 802.

The state argued to the trial court that defense counsel should not be permitted to go on a “fishing expedition.” This is not a recognized  [*5]  ground for denying a proffer, so long as it can be said that the proposed “fishing expedition” is reasonably related to the issues at trial. In Alford v. U. S., 282 U.S. 687, 692, 51 S. Ct. 218, 75 L. Ed. 624 (1931), the United States Supreme Court recognized that cross-examination is often, “necessarily exploratory” in nature:

It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what fact a reasonable cross-examination might develop. Prejudice ensues from denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.282 U.S. at 692 (citations omitted). The defendant has the absolute right to conduct a full and fair cross-examination. This right is “especially necessary when the witness being cross-examined is the key witness on whose credibility  [*6]  the State’s case relies.” Docekal v. State, 929 So. 2d 1139, 1142 (Fla. 5th DCA 2006) (quoting Tomengo v. State, 864 So. 2d 525, 530 (Fla. 5th DCA 2004)). Cross-examination can be limited to prevent harassment, annoyance or humiliation of the witness. Alford, 282 U.S. at 694. The state has not argued that any such limitation applied to preclude the proffer here.

As the state points out, refusal to permit a proffer is subject to a harmless error analysis. See Brown, 431 So. 2d at 248. The burden, however, is on the state to establish beyond a reasonable doubt that the error complained of did not contribute to the verdict. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Unless there is record evidence or argument of defense counsel revealing what the proposed proffer would have included, it is difficult, if not impossible, to say that the error was harmless. See Rozier, 636 So. 2d at 1388 (Fla. 4th DCA 1994) (”Therefore, we cannot say that the exclusion of Murrell’s testimony was harmless beyond a reasonable doubt when we do not know what the substance of her testimony would have been.”); cf. Brown, 431 So. 2d at 248 (holding that refusal of proffer was harmless where court  [*7]  was “able to determine from defense counsel’s detailed argument and explanation of the evidence expected to be offered” the alleged relevance of the testimony). The circumstances surrounding the attempted proffer in this case are more similar to those in Rozier than in Brown and, thus, the error cannot be deemed harmless.

In this case, it appears that S.H. had not recanted her prior accusations. The state thus argues that the trial court’s denial of defendant’s request to make a proffer was harmless, citing Reeves v. State, 862 So. 2d 60, 61 (Fla. 1st DCA 2003). In Reeves, the First District held that the trial court’s exclusion of evidence that the victim had previously accused her father of sexual abuse was proper because the victim had not recanted her statements regarding this prior sexual abuse. Id. More recently, however, in State v. Taylor, 928 So. 2d 473, 477 (Fla. 1st DCA 2006), the First District denied the state’s certiorari petition which had sought to prevent the defense from presenting any evidence about the victim’s prior sexual abuse allegations against her father. There, the court stated that “even if a recantation did not occur, the judge could arguably still have  [*8]  decided to allow the testimony at issue as relevant to the witness’s credibility, bias, motive, or interest.” Id. The court quoted Jaggers v. State, 536 So. 2d 321, 327 (Fla. 2nd DCA 1988) (”Evidence that is relevant to the possible bias, prejudice, motive, intent or corruptness of a witness is nearly always not only admissible, but necessary, where the jury must know of any improper motives of a prosecuting witness in determining that witness’ credibility. That is particularly true in the case of allegations of sexual abuse where there is no independent evidence of the abuse and the defendant’s sole defense is either fabrication or mistake on the part of the alleged victims.”).

We agree that defense counsel should be allowed to inquire about a prior accusation of sexual assault, even where the victim has not previously recanted that allegation. It may be that the prior accusations will cast doubt on the current one by, for example, being remarkably similar in content, or made against a person similar to the defendant. Absent a specific proffer and without any context in which to view the admissibility of testimony in this case, we can offer only general guidance. It appears, however,  [*9]  that the trial court’s refusal to permit cross-examination about the prior accusation could have resulted in an abuse of discretion. In any event, clear error has been shown by the trial court’s refusal to permit even a proffer of that testimony so as to permit meaningful review.

We find no error in the trial court’s denial of appellant’s motion in limine regarding appellant’s conduct in text messaging, tickling, and telling H.S. to “take it out in trade.” These acts were not evidence of collateral crimes, subject to a section 90.404(2)(a) or (b) analysis, but were relevant evidence admissible as a part of, or inextricably intertwined with, the crime charged.

Reversed and Remanded for a new trial.

STONE and STEVENSON, JJ., concur.

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