Florida Criminal Law Opinions

ROBERT E. GONZALEZ, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-1619

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 

 

April 30, 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; Dennis P. Maloney, Judge.

 

COUNSEL:   James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   ALTENBERND, Judge. SALCINES and VILLANTI, JJ., Concur.

OPINION BY:   ALTENBERND

OPINION  

ALTENBERND, Judge.

Robert Gonzalez appeals his judgment for second-degree murder and sentence of life imprisonment as a prison releasee reoffender. He raises only two issues on appeal. We affirm, but write to address Mr. Gonzalez’s argument that he was entitled to a twelve-person jury rather than a six-person jury to decide his case because he faced a mandatory life sentence, without possibility of parole, upon his conviction for the charged crime. n1

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Our discussion of this issue has been greatly facilitated by the high quality of the briefs submitted by both parties, which explored in depth not only the relevant case law but also the scholarship existing in this area.
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Florida is one of only two remaining states that regularly use six jurors to decide the outcome of criminal cases in which life imprisonment is a mandatory sentence  [*2]  if the defendant is found guilty of the charged offense. n2 The common-law tradition of twelve jurors for such important criminal cases is overwhelmingly recognized as the better policy throughout the United States.

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The other state is Connecticut. Indiana and Massachusetts allow some felony cases to be tried by juries as small as six members but still require twelve-person juries for more serious felonies. See David B. Rottman & Shauna M. Strickland, State Court Organization 2004, United States Department of Justice, Bureau of Justice Statistics, Table 42 at 233-36, available at http://www.ojp.usdoj.gov/bjs/abstract/sco04.htm (last visited Mar. 18, 2008). Notably, Connecticut continues to permit parole for most offenders, with the exception of those convicted of capital felonies, felony murder, arson murder, murder, or aggravated sexual assault. See Conn. Gen. Stat. Ann. § 54-125a (West 2008) (as recently amended by 2008 Conn. Legis. Serv.–Jan. Sp. Sess. P.A. 08-1 (SB 1700) (West)).
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Article 1, section 22, of the Florida Constitution allows the legislature to establish the number of jurors for cases, both civil and criminal, so long as a jury contains at least six jurors. Mr. Gonzalez  [*3]  acknowledges that the United States Supreme Court has expressly held that Florida’s use of a six-person jury in a criminal case does not violate the Sixth Amendment right to jury trial as applied to the states through the Fourteenth Amendment. See Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970). He argues, however, that subsequent scholarship and data developed after Williams now call into question that Court’s assumption that “the reliability of the jury as a factfinder hardly seems likely to be a function of its size,” id. at 100-01, and in fact demonstrate that the functions and purposes of a jury cannot constitutionally be fulfilled by a jury of six. See, e.g., Ballew v. Georgia, 435 U.S. 223, 245, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978) (holding that trial on misdemeanor criminal charges before a five-member jury deprived the defendant of his right to trial by jury as guaranteed by the Sixth and Fourteenth Amendments). His argument is worthy of consideration, but this court has no authority to overrule the precedent from the United States Supreme Court that endorsed the use of a jury with only six members as constitutional, nor the Florida law that authorizes and perhaps compels the use of six-member juries in non-capital  [*4]  criminal cases.

I. THE FACTS

In 2003, Mr. Gonzalez, a pizza deliveryman, was charged with second-degree murder after he stabbed a coworker to death at a pizza parlor. He used one of the restaurant’s large kitchen knives to attack his coworker during an ongoing dispute over money. The crime was witnessed by a number of other employees at the pizza parlor. At trial, Mr. Gonzalez primarily argued that he acted in self-defense. Mr. Gonzalez, who had been released from prison on an unrelated crime two years earlier, faced a mandatory life sentence for this charge because he qualified for, and the State sought, a sentence as a prison releasee reoffender. See § 775.082(9)(a)(1), (3)(a), Fla. Stat. (2005).

Prior to trial, Mr. Gonzalez filed a motion asking the court to empanel a twelve-person jury to hear his case. Mr. Gonzalez sought an evidentiary hearing on this motion for the purpose of presenting testimony and documentary evidence supporting the argument that a jury of six is inferior in its functioning to a jury of twelve. The court concluded it was bound by the United States Supreme Court’s decision in Williams no matter what testimony or documentary evidence might say about the comparative  [*5]  functioning of different-sized juries and denied the motion without an evidentiary hearing. Mr. Gonzalez was tried by a six-person jury, which returned a verdict of guilty as charged. Mr. Gonzalez was declared a prison releasee reoffender and sentenced to life in prison.

II. THE TRIAL COURT USED THE CORRECT JURY INSTRUCTION ON JUSTIFIABLE USE OF FORCE

Mr. Gonzalez first argues in this appeal that although he committed this crime in 2003, the trial court was required to instruct the jury on the justifiable use of force in accordance with the 2005 amendments to section 776.013, Florida Statutes (2005). These amendments limited a person’s duty to retreat when confronted with force. See ch. 2005-27, §§ 1, 5, Laws of Fla. (effective Oct. 1, 2005). While this appeal was pending, however, the Florida Supreme Court resolved this issue, holding that section 776.013(3) does not apply to events occurring before its enactment. See Smiley v. State, 966 So. 2d 330 (Fla. 2007). Accordingly, we affirm on this issue without further discussion.

III. THE CONSTITUTIONALITY OF A SIX-PERSON JURY

In his second issue on appeal, Mr. Gonzalez seeks reconsideration of established precedent that supports and perhaps  [*6]  requires the use of six-person juries to decide serious felony cases like his, in which a criminal defendant faces a mandatory life sentence if convicted of the charged offense. He argues that existing empirical data and studies support such a reconsideration, and that at the very least, he was entitled to an evidentiary hearing to present evidence regarding the now-existing empirical data and studies on the comparative functioning of six- and twelve-member juries.

A. The Trial Court’s Refusal to Hold an Evidentiary Hearing.

Initially, we agree with the trial court that an evidentiary hearing was not called for under these circumstances. Mr. Gonzalez sought a hearing not to present evidence specific to his case, but to present and review studies and data regarding the comparative functioning of six-person and twelve-person juries. Mr. Gonzalez argues on appeal that a review of those studies and data entails a level of fact-finding that must be performed by the trial court.

Certain facial challenges to the constitutionality of a particular statute or rule of law permit, and may even require, a level of fact-finding at the trial court level. See, e.g., Sims v. State, 754 So. 2d 657, 666-68 (Fla. 2000)  [*7]  (examining whether lethal injection violates the Eighth Amendment prohibition against cruel and unusual punishment in light of evidence presented to the trial court regarding the protocol used and expert testimony on the possible or practical effects of the protocol); Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999) (performing a similar analysis regarding the constitutionality of the use of the electric chair); Cox v. Fla. Dep’t of Health & Rehabilitative Servs., 656 So. 2d 902, 903 (Fla. 1995) (requiring additional proceedings in a case challenging the constitutional validity of a statute banning homosexual adoption because “a more complete record is necessary” to determine whether the statute met the rational basis test required by the equal protection analysis); see also Glendale Fed. Sav. & Loan Ass’n v. State, Dep’t of Ins., 485 So. 2d 1321, 1324 (Fla. 1st DCA 1986) (stating that “the question of the constitutionality of a statute is an issue of law, or of mixed fact and law, depending upon the nature of the statute brought into question and the scope of its threatened operation”).

Certainly, in this case, sifting through varied and potentially conflicting scientific and sociological  [*8]  studies and scholarship to assess the constitutionality of a six-person jury entails a level of fact-finding. Asking an appellate court to perform this task raises concerns similar to those presented in asking appellate courts to review de novo a trial court determination on the reliability of certain scientific evidence. See, e.g., Brim v. State, 779 So. 2d 427, 428-30 (Fla. 2d DCA 2000). Nevertheless, the use of empirical data and review of scholarship or studies to assess the constitutionality of certain practices is often left to the appellate court. See, e.g., Shawn Kolitch, Comment, Constitutional Fact Finding and the Appropriate Use of Empirical Data in Constitutional Law, 10 Lewis & Clark L. Rev. 673 (Fall 2006).

Existing United States Supreme Court precedent on this issue has not called for evidentiary hearings to review the scholarship or empirical data regarding the comparative functioning of juries of different sizes. Rather, the Court has reviewed the empirical data itself by way of published studies and articles. See Kolitch, 10 Lewis & Clark L. Rev. at 689-96 (reviewing the Supreme Court’s use of empirical evidence in cases addressing the constitutionality of juries based  [*9]  upon size). Given that the Supreme Court has not generally required findings of fact by a lower tribunal for this type of analysis, and given that the circuit court was bound by the holding of Williams, we agree that no evidentiary hearing was required to address Mr. Gonzalez’s motion.

B. The History of the Six-Person Jury in Florida.

Since 1875, the Florida Constitution has allowed the number of jurors to be “fixed by law.” See art. 6, § 12, Fla. Const. (1875). The law first “fixed” the number of jurors at twelve for capital cases and six for “all other offenses” in 1877. See ch. 2041, Laws of Fla. (1877). n3 See generally Fla. Fertilizer & Mfg. Co. v. Boswell, 45 Fla. 301, 34 So. 241 (Fla. 1903). Article 5, section 38, of the 1885 Florida Constitution then recognized that the number could be no less than six. Article I, section 22, of the Florida Constitution now provides, “The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, no fewer than six, shall be fixed by law.”

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We have found no historical explanation as to why the State of Florida in the late 1800s fixed the minimum number of jurors at a number that was half of that traditionally  [*10]  required at common law. However, at that time Florida had a sparse population, especially in the large southern counties. See Atlas of Florida, 996 (Edward A. Fernald & Elizabeth D. Purdum, eds., Univ. Press of Fla. 1992) (demonstrating that large southern counties of Florida in 1860 had average populations of 2.1 persons per square mile or less, and in 1880 had average populations of 3.5 persons per square mile or less). Notably, at that time juries did not include women and often excluded minorities. Moreover, the difficulty of traveling long distances in rural counties and the limited availability of lodging for jurors may well have made it impractical or even impossible to regularly use a jury of twelve white males in some Florida counties in the late 1800s. The legislature, however, never revised the number of jurors for use in serious criminal cases after counties became smaller, the state’s population vastly increased, and jury duty was expanded to include all adults, without regard to race or gender, who possessed a driver’s license.
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Section 913.10, Florida Statutes (2006), is the current law that “fixes” the number of jurors: “Twelve persons shall constitute a jury to try all  [*11]  capital cases, and six persons shall constitute a jury to try all other criminal cases.” See also Fla. R. Crim. P. 3.270 (stating the identical premise). The Florida Supreme Court has held that an offense is a “capital case” under the statute if it is “one where death is a possible penalty.” State v. Hogan, 451 So. 2d 844, 845 (Fla. 1984). But see State v. Griffith, 561 So. 2d 528, 529 (Fla. 1990) (holding that a defendant charged with first-degree murder has a statutory right to trial by a twelve-person jury, even if the prosecutor agrees to waive possible application of the death penalty). There is no question, therefore, that Florida law permits, and perhaps even requires, a six-person jury in all felony cases for which death is not a possible penalty. Pursuant to Hogan, this includes “capital sexual battery” cases that might result in a mandatory life sentence but can no longer result in a death sentence. Hogan, 451 So. 2d at 845.

C. The Constitutionality of the Six-Person Jury Under the Federal Constitution.

Florida’s long-standing practice of permitting six-person juries to try felony criminal cases was challenged in Williams, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446. The defendant in Williams argued that  [*12]  his conviction for robbery by a jury of six violated his Sixth Amendment right to trial by jury under the United States Constitution. n4 The United States Supreme Court rejected this argument, holding “that the 12-man panel is not a necessary ingredient of ‘trial by jury,’ and that [the] refusal to impanel more than the six members provided for by Florida law did not violate [Williams'] Sixth Amendment rights as applied to the States through the Fourteenth [Amendment].” Id. at 86.

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Notably, Mr. Williams was sentenced to life for this crime, but at a time when this sentence would have made him eligible for parole. See, e.g., § 947.16, Fla. Stat. (1969).
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In determining that the constitution did not require a jury of twelve, the Court characterized the common-law number of twelve jurors as a “historical accident,” id. at 89, and not “the prevailing grundzahl,” id. at 87 n.19. The Court acknowledged that the word “jury” may have imported to the Framers or the First Congress an “usual expectation” of twelve members, but the Court found no historical indication of an “explicit decision” to equate the use of the word “jury” in the constitution to the common-law characteristics of the jury. Id. at 98-99.  [*13]  As a result, the Court concluded that the Sixth Amendment itself could not be interpreted as requiring twelve-person juries. Rather, the Court explained, “The relevant inquiry, as we see it, must be the function that the particular feature [of the jury] performs and its relation to the purposes of the jury trial.” Id. at 99-100. The Court thus proceeded to examine the functions of the jury and the ability of a specific number of jurors to accomplish those functions.

The Court characterized the jury’s function as “interposi[ng] between the accused and his accuser [] the commonsense judgment of a group of laymen,” and in fostering “the community participation and shared responsibility that results from that group’s determination of guilt or innocence.” Id. at 100. Viewed in this light, the Court essentially concluded that size doesn’t matter. Id. at 100-01 (stating, “[t]he reliability of the jury as a factfinder hardly seems likely to be a function of its size”). The Court noted, “To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section  [*14]  of the community.” Id. at 100. Nevertheless, the Court found that “neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer numbers.” Id. at 101. See also Colgrove v. Battin, 413 U.S. 149, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973) (applying a similar analysis to conclude that a six-person jury satisfies the Seventh Amendment right to a jury trial in civil cases).

The decision in Williams brought the issue of the effects of a jury’s size on its functioning into the forefront and raised an ensuing scholarly debate. In part, that debate convinced the Court just eight years later that a jury reduced to the size of five for misdemeanor cases was unconstitutional under the Sixth Amendment. In Ballew, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234, the Court stated:

While we adhere to, and reaffirm our holding in Williams v. Florida, these studies, most of which have been made since Williams was decided in 1970, lead us to conclude that the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members. We readily admit that we do not pretend to discern a clear line between  [*15]  six members and five. But the assembled data raise substantial doubt about the reliability and appropriate representation of panels smaller than six.Ballew, 435 U.S. at 239.

D. The Argument that Circumstances have Changed Since Williams.

Throughout history, there is little question that many societies and cultures have relied on groups of twelve to make reliable decisions. Whether reliance on such duodecuple decision-making has only been based on a religious or cultural tradition of twelve or on some intuitive sense that a group of twelve is reliable is probably an unanswerable question. n5 However, within the law, we quite reasonably give trust to solutions that have withstood the test of time, and the jury of twelve has clearly withstood that test.

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As noted by Wikipedia in its entry regarding the number twelve, the number is represented in the Twelve Olympian Gods from Roman times, the Twelve Tribes of Israel in the Judaic tradition, the Twelve Apostles in the Christian tradition, and the Twelve Imams in Shi’a Islam. See 12 (number), Wikipedia, available at http://en.wikipedia.org/wiki/12_(number) (last visited Mar. 24, 2008).
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Mr. Gonzalez is not alone in arguing that advances in the  [*16]  understanding of small group decision-making and trends in the law of other states support another examination of the Williams rationale. In 1995, the Committee on the Rules of Practice and Procedure of the Judicial Conference of the United States proposed that the Federal Rules of Civil Procedure be amended to require twelve-person juries in civil cases. See Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, Criminal Procedure and Evidence, 163 F.R.D. 91 (transmitted by the Committee on the Rules of Practice and Procedure of the Judicial Conference of the United States for Notice and Comment, September 1995). n6 The text of the proposed committee note to follow the proposed amended rule explained:

Much has been learned since 1973 about the advantages of twelve-member juries. Twelve-member juries substantially increase the representative quality of most juries, greatly improving the probability that most juries will include members of minority groups. The sociological and psychological dynamics of jury deliberation also are strongly influenced by jury size. Members of a twelve-person jury are less easily dominated by an aggressive juror, better able to recall the  [*17]  evidence, more likely to rise above the biases and prejudices of individual members, and enriched by a broader base of community experience. The wisdom enshrined in the twelve-member tradition is increasingly demonstrated by contemporary social science.Id. at 147.

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Federal Rule of Civil Procedure 48 currently requires that a civil jury must initially have at least six and no more than twelve members. Federal Rule of Criminal Procedure 23(b)(1) requires a jury of twelve absent a stipulation by the parties to the contrary or a court order permitting a verdict by a jury of eleven if the court found good cause to excuse a juror.
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On February 14, 2005, the American Bar Association House of Delegates approved Principles for Juries and Jury Trials, a document prepared by the American Jury Project after an October 2004 symposium. Principle 3 is entitled “Juries Should Have Twelve Members” and calls for twelve-person juries in any criminal case that might result in a penalty of confinement of over six months. Moreover, as mentioned at the beginning of this opinion, Florida is one of only two states that now consistently allow serious felony cases to be decided by juries with as few as six members.  [*18]  See David B. Rottman & Shauna M. Strickland, State Court Organization 2004, United States Department of Justice, Bureau of Justice Statistics, Table 42 at 233, available at http://www.ojp.usdoj.gov/bjs/abstract/sco04.htm (last visited Mar. 18, 2008).

The extensive development in the study of small group decision-making since 1970 is well beyond the scope of this opinion. There clearly is more scientific evidence today than in 1970 that a twelve-person jury may be superior to a six-person jury to accomplish the functions, purposes, and goals identified by the Williams court. Ensuing scholarship has criticized the empirical authorities upon which the Williams court relied, see Robert H. Miller, Comment, Six of One Is Not a Dozen of the Other: A Re-Examination of Williams v. Florida and the Size of State Criminal Juries, 146 U. Pa. L. Rev. 621, 652 (Jan. 1998), and collected more empirical studies that contradict the conclusions of the Court, see, e.g., Michael Saks & Mollie Weighner Marti, A Meta-Analysis of the Effects of Jury Size, 21 L. & Hum. Behav. 451 (1997). The scholarship and evidence in this regard, however, are not undisputed, and the various scientific theories are not necessarily  [*19]  cohesive.

In Mr. Miller’s article, Six of One is Not a Dozen of the Other: A Re-examination of Williams v. Florida and the Size of State Criminal Juries, the author concludes:

As the Ballew Court admitted, we now know that six- and twelve-person juries are not functionally equivalent, as the Williams Court assumed. We know that recall of facts, testimony, and in-court observations are compromised significantly when a six-person jury is used in place of a twelve-person jury. We know that the rate of hung juries declines and the rate of conviction rises when smaller juries are used. We know that minority representation, community representativeness, and quality of deliberation all decrease when six-person juries are used. Finally, we know that six-person juries are less reliable than twelve-person juries, because they are less consistent in rulings on similar cases and because they decide all cases at greater variance from larger community preferences.146 U. Pa. L. Rev. at 682-83 (footnotes omitted). n7

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John H. Wigmore, in A Program for the Trial of Jury Trial, 12 J. Am. Jud. Soc’y 166, 169-71 (1929), writes:

Ask any twelve intelligent friends any question of opinion or fact, calling for  [*20]  serious thought . . . . Will it ever happen that you do not glean from at least two or three of the twelve some argument or detail or judgment that the others . . . had failed to mention?

. . . [T]he conduct of human life has to be based on elusive averages or generalities, whether in politics, law, medicine, engineering, commerce or ethics. And when it comes to applying these generalities to concrete cases, the only safe machinery, that is dependable in the long run, is a machinery that embodies an average judgment, i.e., the reconciliation of several judgments taken at random.
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Adam M. Chud and Michael L. Berman, however, have expressed disagreement with the conclusion that twelve-person juries are, a priori, superior to six-person juries, in their article, Six-Member Juries: Does Size Really Matter?, 67 Tenn. L. Rev. 743, 762 (2000). They write, “Although small and large juries produce distinctive group dynamics, ultimately both six- and twelve-member juries reach results with which the legal system should be comfortable.” Their review of empirical data convinces them that “both small and large juries have their benefits and their drawbacks”:

Six-member juries are less likely than twelve-member  [*21]  juries to contain a minority perspective; however, juries of twelve members also pose a significant chance of including no minority voices. Moreover, some members of large juries may be intimidated into going along with group consensus to avoid social isolation.Id. at 763.

There is also no doubt that the cost of increasing the size of juries in any subset of cases must also play a role in any analysis. See, e.g., Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, Criminal Procedure and Evidence, 163 F.R.D. at 137-38 (contemplating possible costs of requiring increased jury size).

These developments must also be reviewed in the context of an increased recognition of the jury’s central role in our judicial system, as reflected in recent Supreme Court precedent. In recent years, the Supreme Court has placed greater emphasis upon the jury as a critical participant in deciding factual issues that have an impact upon a defendant’s sentence. For example, in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in holding that a jury must decide any fact that increases the penalty for a crime beyond that statutory maximum, other than the fact of a prior conviction, the Court  [*22]  stated:

As we have, unanimously, explained . . . the historical foundation for our recognition of these principles extends down centuries into the common law. “[T]o guard against a spirit of oppression and tyranny on the part of rulers,” and “as the great bulwark of [our] civil and political liberties,” 2 J. Story, Commentaries on the Constitution of the United States 540-541 (4th ed. 1873), trial by jury has been understood to require that “the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours . . . .” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) (hereinafter Blackstone) (emphasis added). See also Duncan v. Louisiana, 391 U.S. 145, 151-154, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).Id. at 477.

In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), in applying Apprendi and clarifying the definition of the “statutory maximum” for any offense, the Court repeated its reference to the “suffrage of twelve,” id. at 301, and then re-emphasized the critical nature of trial by jury:

Our commitment to Apprendi in this context reflects  [*23]  not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed.1981) (describing the jury as “secur[ing] to the people at large, their just and rightful controul in the judicial department”); John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) (”[T]he common people, should have as complete a control . . . in every judgment of a court of judicature” as in the legislature); Letter from Thomas Jefferson to the Abbe Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (”Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative”); Jones v. United States, 526 U.S. 227, 244-248, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).  [*24]  Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended.Id. at 305-06.

At the same time that the Supreme Court has been recognizing the jury’s critical role in deciding all facts that may increase the penalty for a crime, the Florida Legislature has been removing some of the discretion that trial judges had under the common law to adjust a sentence to fit the specific circumstances of the case. As exemplified by this case, prison releasee reoffenders, violent career criminals, habitual felony offenders, and persons who use weapons to commit crimes are now often mandated by statute to serve lengthy sentences. See §§ 775.082, .084, .087, Fla. Stat. (2007). In Mr. Gonzalez’s case, the mandated sentence is life imprisonment with no provision for parole. See § 775.082(9)(a)(1), (3)(a).

If juries are to be the sole decision-makers on sentences of this severity, there clearly are reasonable people in addition to Mr. Gonzalez who at least intuitively believe that our system would make better, more legitimate decisions, based on the voices  [*25]  of a better cross-section of our community, if we trusted the jury of twelve that Blackstone trusted. Apprendi, 530 U.S. at 477-480.

As persuasive as Mr. Gonzalez’s argument may be, this court is bound by existing Supreme Court precedent to hold that the six-person jury that convicted him was not, by sheer virtue of its size, constitutionally deficient. That argument must be made ultimately to the Supreme Court.

IV. FLORIDA LAW AND THE SIX-PERSON JURY

Whether a six-person jury meets the minimum standard necessary under the federal constitution is a different question than whether such a jury is desirable in our system of justice to decide cases where the defendant faces mandatory life imprisonment. The continued concerns regarding juries with as few as six members merits debate within this state as to whether this long-standing practice–a practice at direct odds with the common law and the practice in the majority of jurisdictions–remains defensible in a time when there is little difficulty gathering a jury of twelve to consider cases in which a defendant faces such a severe sentence. Recent Florida cases have specifically questioned the continued use of six-person juries in sexual  [*26]  battery cases where the evidence may be tenuous and the resulting punishment life imprisonment. See, e.g., Adaway v. State, 902 So. 2d 746, 755 (Fla. 2005) (Pariente, J., concurring); Palazzolo v. State, 754 So. 2d 731, 737 (Fla. 2d DCA 2000). n8

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Adaway and Palazzolo both involved charges of capital sexual battery. In Hogan, 451 So. 2d 844, the Florida Supreme Court held that this crime remained a “capital” offense for determining the maximum sentence for an offense, but not for determining the number of jurors assigned to the case. In this narrow context, it appears twelve-person juries could be required if the Florida Supreme Court receded from that portion of Hogan determining that the unavailability of the death penalty determined the crime was not a capital crime for the purposes of jury size, and instead adopted reasoning similar to that used in Griffith, 561 So. 2d at 529, to hold that a twelve-member jury was required in a first-degree murder case even if the prosecutor waives the possible application of the death penalty. This result, however, would not assist Mr. Gonzalez.
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Although Mr. Gonzalez is entitled to no remedy from this court, his claim could arguably be addressed  [*27]  in Florida without regard to the minimum requirements of the United States Constitution. Notably, Mr. Gonzalez is not only entitled to a jury of no fewer than six, but also to an “impartial jury” under article 1, section 16, of the Florida Constitution. Consistent with the primacy of state constitutions announced in Traylor v. State, 596 So. 2d 957 (Fla. 1992), the Florida Supreme Court could hold that although the minimum of six jurors in article I, section 22, is appropriate for civil and most criminal cases, a jury of six for the most serious offenses is a deprivation of the impartial jury required under section 16. Obviously, the Florida Legislature could address this issue prospectively by amending section 913.10 to fix the number of jurors for use in serious felony cases at a number in line with the number provided by the great majority of other states. That statutory change would then permit the Florida Supreme Court to amend rule 3.270 to require jurors of twelve in serious felony cases.

At this time, neither Florida nor federal law provides any relief for Mr. Gonzalez. We therefore affirm the judgment and sentence.

SALCINES and VILLANTI, JJ., Concur.

Mark Alexander Hill, Appellant, vs. The State of Florida, Appellee.

No. 3D06-478

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

 

 

April 30, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

 

PRIOR HISTORY:    [*1] 

An appeal from the Circuit Court for Miami-Dade County, Jorge Perez, Judge. Lower Tribunal No. 04-9329.

 

COUNSEL:   Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.

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

JUDGES:   Before COPE, RAMIREZ, and SALTER, JJ.

OPINION BY:   COPE

OPINION  

COPE, J.

Mark Alexander Hill appeals his conviction and sentence for the possession of heroin with intent to sell within 1000 feet of a place of worship. We reverse.

On the day of the arrest, Officer Ferguson was involved in a drug surveillance operation in the Overtown area of Miami. At trial, the officer, the only eyewitness to the transaction, testified that he was sitting in an unmarked car parked in the middle of the block on one side of a city street. He saw a Jaguar automobile approach and stop on the other side of the street. The Jaguar then went around the block and returned to approximately the same position. The Jaguar pulled over to the curb on the opposite side of the street from the unmarked car. The driver’s side of the Jaguar was parallel to, and a little bit behind, the officer’s unmarked car. The officer testified that by turning his head  [*2]  to the left, he could see through the car windows of the Jaguar. It was about 6:00 p.m. The distance was thirty to forty feet.

The officer saw Hill approach the Jaguar from the passenger side. Hill looked to his right and left, then reached inside his pockets. According to the officer, “He took out what I saw was a plastic bag. Couldn’t quite see it. About thumbnail size.” Hill handed it inside the car and the occupants handed him money. The officer could not see the denomination but saw the color of the currency.

Hill rode off on his bicycle in one direction and the automobile drove off in a different direction. The officer gave the order to arrest Hill and the persons in the automobile. Hill was arrested approximately two minutes later by another officer who was also a member of the surveillance operation. Hill was carrying $ 178 in cash. No heroin was found in his possession. The Jaguar was also stopped and the two occupants were arrested when two thumbnail size bags of heroin were observed on the car’s center console. The two bags each bore the identical blue devil logo.

The Location as a “High Crime Area”

Before trial, the defense filed a motion in limine specifically requesting that  [*3]  the State be prohibited from introducing evidence that the sale took place in a high crime area. That motion was granted. At trial the following was elicited from Sergeant Davis, another member of the surveillance team:

Q. Can you please describe for the jury how you became involved in this case.

A. There was a surveillance-base[d] takedown that was being conducted. And Mr. Hill was identified as one of the suspects that was involved in a suspect sell [sic] of narcotics.

Q. Can you explain to the jury what you mean by “surveillance base[d] takedown”?

A. That’s where we watch a certain area for activity that’s going on. That we got reports of activity going on in particular narcotics sales and–

Ms. Diaz: Objection, Your Honor. Limine motion.

The Court: Overruled.

. . . .

The Witness: As a result of the information we received from people who live in the area and complaints we received, I review a lot of reports, I set up surveillance in certain areas where we know that certain types of activities are affirmed.

Ms. Diaz: Objection, your honor. This was [the] subject of [a] motion in limine. Could we have a sidebar, Your Honor?(Emphasis added). At the sidebar conference, the State argued it was  [*4]  allowed to present testimony to explain what was meant by a “surveillance based takedown.” The defense objection was overruled.

We conclude that the objection should have been sustained. The Florida Supreme Court has said that a brief statement about why an investigation occurred is permissible. Keen v. State, 775 So. 2d 263, 270-76 (Fla. 2000). However, the court explained that “when the only relevance of such a statement is to show a logical sequence of events leading up to an arrest, the better practice is to allow the officer to state that he acted upon a ‘tip’ or ‘information received,’ without going into the details of the accusatory information.” Id. at 270 (quoting State v. Baird, 572 So. 2d 904, 908 (Fla. 1990)).

Unfortunately, the Sergeant’s testimony informed the jury the police knew that confirmed drug sales were taking place in the neighborhood. Based on this statement the jury could conclude that if Hill were in the area it was because he was there to sell drugs. “In a prosecution for possession of illegal drugs, the fact that a police officer knows that an arrest scene is a reputed narcotics area does not prove anything in issue and is ‘patently prejudicial’.” Lowder v. State, 589 So. 2d 933, 935 (Fla. 3d DCA 1991).

The  [*5]  State’s Comments on “Uncontroverted” Evidence.

Hill also contends that statements made by the State during closing arguments that the evidence presented at trial was “uncontroverted” and “uncontradicted” constituted improper burden shifting and were comments on Hill’s right to remain silent. Again, we agree.

Officer Ferguson was the only eyewitness to the actual transaction who testified at trial (although other members of the team testified about the apprehension of Hill and the occupants of the Jaguar). Hill did not testify in his own defense. The defense argued that the officer could not have seen a thumbnail sized baggie being exchanged for currency from a distance of thirty to forty feet away. During closing arguments the State said:

[The Assistant State Attorney]: . . . Yes, the only person who witnessed this transaction was Officer Ferguson. And you saw him testify on the stand. And I submit to you that his testimony is not only credible, but it’s uncontradicted. Uncontroverted.

[Defense Counsel]: Objection, Your Honor. Shifting the burden.A sidebar conference was held, during which the State argued that it was not burden shifting to say that evidence was uncontradicted when Officer  [*6]  Ferguson was the only eyewitness and no other witness testified to the contrary. Counsel for Hill responded that since Hill was the only person who could controvert the officer’s testimony, the State was improperly suggesting to the jury that Hill had some obligation to present evidence to refute it. The defense asked the court to instruct the jury that Hill did not have to prove or disprove anything. The court overruled the objection and did not give the requested curative instruction. The State then continued its closing argument by saying: “Ladies and gentlemen, Officer Ferguson’s testimony is uncontradicted and uncontroverted. . . . Certainly don’t have a right to sell heroin within a thousand feet of a church. That’s what the defendant did. Uncontradicted and uncontroverted.

Hill argues on appeal that the State impermissibly commented on his right to remain silent. In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the Florida Supreme Court stated: “In Florida, we have adopted a very liberal rule for determining whether a comment constitutes a comment on silence: any comment which is ‘fairly susceptible’ of being interpreted as a comment on silence will be treated as such.” Id. at 1135.  [*7]  In Rodriguez v. State, 753 So. 2d 29 (Fla. 2000), the Court said: “A constitutional violation occurs . . . if either the defendant alone has the information to contradict the government evidence referred to or the jury ‘naturally and necessarily’ would interpret the summation as a comment on the failure to testify.” Id. at 38.

This case is similar to Watts v. State, 921 So. 2d 722 (Fla. 4th DCA 2006). In Watts, Officer Williams was the sole witness for the prosecution and Watts did not testify. The prosecutor, in closing, said: “Did you hear anybody else testify to dispute the officer’s story?” The court held: “Where a total of two persons were present during the incidents involved in this case, namely William and Watts, and only Williams testified, the prosecutor’s question, “Did you hear anybody else testify to dispute the officer’s story?” could refer only to Watts’ failure to testify. Id. at 724.

The State argues that the above cases do not apply because there were two additional witnesses who potentially could have been called as witnesses in this case: the driver and passenger in the Jaguar. But the State did not call them as witnesses and the defendant has no obligation to call  [*8]  any witnesses. From the viewpoint of the jury, the jury saw Officer Ferguson (who did testify about the transaction) and Hill (who did not). The closing argument would suggest to the jury that the defendant could have disputed the officer’s testimony but did not do so. The comments were “fairly susceptible” of being interpreted as comments on Hill’s failure to testify, and it was error for the trial court to overrule the defense’s objections.

The comments could also be understood to suggest that Hill had the burden to present evidence to refute Ferguson’s version of the transaction. It is well established that the State has the burden of proving every element of a crime beyond a reasonable doubt and this burden never shifts from the State. Conner v. State, 910 So. 2d 313, 315 (Fla. 5th DCA 2005). The Florida Supreme Court has said that “the State may not comment on a defendant’s failure to mount a defense because doing so could lead the jury to erroneously conclude that the defendant has the burden of doing so.” Rodriguez, 753 So. 2d at 38; Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991)(”State cannot comment on a defendant’s failure to produce evidence to refute an element of the  [*9]  crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.”); Jackson v. State, 933 So. 2d 1180, 1183 (Fla. 4th DCA 2006) (”State cannot comment on a defendant’s failure to produce evidence to refute an element of the crime because doing so could erroneously lead the jury to believe the defendant carried the burden of introducing evidence.”); Miele v. State, 875 So. 2d 812, 814 (Fla. 2d DCA 2004) (”It is not permissible for the State to comment on the defendant’s failure to present evidence refuting an element of the charged crime.”); Smith v. State, 843 So. 2d 1010, 1011 (Fla. 1st DCA 2003) (”the statement ‘Nobody testified he wasn’t the guy,’ can only be taken as intended to suggest, impermissibly, that appellant had some burden to present evidence refuting the State’s identification testimony.”).

Harmless Error Analysis

The final question is whether the errors are harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Although there were several members of the surveillance team, only Officer Ferguson observed the encounter between Hill and the occupants of the Jaguar. The main defense  [*10]  was that it was physically impossible for the officer to have observed a transaction involving thumbnail-sized plastic baggie with the unaided eye from a distance of thirty to forty feet, given the relative positions of the two cars. We are unable to say the error was harmless beyond a reasonable doubt. We therefore reverse the judgment and remand for a new trial.

Reversed and remanded for a new trial.

ALICIA GRIFFIN, Petitioner, v. STATE OF FLORIDA, Respondent.

No. 4D07-2064

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

 

April 30, 2008, Decided

 

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

 

PRIOR HISTORY:    [*1] 

Petition for writ of certiorari to the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 561990CF002943B.
Griffin v. State, 934 So. 2d 614, 2006 Fla. App. LEXIS 12366 (Fla. Dist. Ct. App. 4th Dist., 2006)

 

COUNSEL:   Alicia Griffin, Florida City, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for respondent.

JUDGES:   GROSS and TAYLOR, JJ., concur. FARMER, J., dissents with opinion.

 

OPINION  

PER CURIAM.

Alicia Griffin (Defendant) seeks certiorari review of a trial court order denying as untimely her rule 3.800(c) motion for mitigation and/or reduction of sentence. We grant the petition.

Defendant entered a nolo contendere plea to sixteen counts, all alleged to have occurred on December 13, 1990. On July 8, 1991, she was sentenced to various concurrent terms, the longest being fifty years, with a three-year mandatory minimum for use of a firearm. There was no direct appeal.

On July 1, 2004, the trial court granted her motion to correct illegal sentence and resentenced her for count I (attempted first degree felony murder with a firearm) to forty years. Thereafter, she filed another rule 3.800(a) motion, claiming that her fifty-year sentences for nine other offenses, all charged as having been  [*2]  committed with a firearm, were illegal because the use of the firearm should have required reclassification of the offenses to life felonies, for which the statutory maximum term was forty years at the time the offenses were committed. On appeal from the trial court’s summary denial of the motion, this court reversed in part, agreeing with Defendant’s position only with respect to her convictions for kidnapping with a firearm, counts VI-IX. Griffin v. State, 934 So. 2d 614 (Fla. 4th DCA 2006).

On October 11, 2006, Defendant was resentenced to forty years for some of her counts (presumably, the four counts of kidnapping with a firearm), and remains sentenced to fifty years for several other counts.

On November 17, 2006, Defendant served a sworn pro se motion for mitigation and/or reduction of sentence, pursuant to rule 3.800(c), Florida Rules of Criminal Procedure, which she claimed was timely because fewer than sixty days had elapsed since her resentencing. The trial court set a hearing on the motion for December 8, 2006–also within sixty days of the resentencing–and ordered Defendant transported to attend it. Thereafter, Defendant received court notes which reflected that the trial  [*3]  court had denied her motion as untimely filed.

The trial court ultimately issued a written order on May 8, 2007, denying Defendant’s motion for mitigation and/or reduction of sentence. It explained as follows:

There is case law that holds that a Defendant receives a second opportunity to file a rule 3.800(c) motion after resentencing pursuant to a direct appeal. See Word [sic] v. State, 854 So. 2d 260 (Fla. 1st DCA), see also Vrobel v. State, 884 So. 2d 471 (Fla. 4th DCA 2004). However, there is no rule that suggests a Defendant receive additional opportunities after each resentencing pursuant to a collateral appeal on a sentence originally pronounced on July 8, 1991.(Bold emphasis added).

Ward v. State, 854 So. 2d 260 (Fla. 1st DCA), rev. dismissed, 865 So. 2d 482 (Fla. 2003), concerned a rule 3.800(c) motion that was timely filed after a resentencing on remand from direct appeal proceedings. In Vrobel, the defendant filed his timely motion following affirmance of his conviction and sentence on direct appeal. 884 So.2d at 471.

Defendant seeks certiorari review of the trial court’s implicit determination that it lacked jurisdiction to rule on her motion. Appellate courts may exercise their  [*4]  certiorari jurisdiction to review cases in which the reason for the denial of a rule 3.800(c) motion was lack of jurisdiction, based on the untimeliness of the motion. E.g., Marese v. State, 906 So. 2d 331 (Fla. 4th DCA 2005) (granting petition where petitioner showed that he was not responsible for setting of hearing beyond the sixty day limit); Shannon v. State, 765 So. 2d 847 (Fla. 4th DCA 2000) (granting petition where rule 3.800(c) motion was timely filed within sixty days of date of denial of certiorari by the United States Supreme Court as to petitioner’s original direct appeal); Byrd v. State, 920 So. 2d 825 (Fla. 2d DCA 2006) (quashing order dismissing rule 3.800(c) motion as untimely, though filed within a few days of voluntary dismissal of defendant’s direct appeal).

Rule 3.800(c) (emphasis added) provides, in pertinent part, as follows:

A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it within 60 days after the imposition, or within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal, or within 60 days after  [*5]  receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, within 60 days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari.

Defendant maintains she filed her petition within the sixty-day period following her resentencing, and therefore the trial court departed from the essential requirements of law in deeming it to be untimely.

The state first contends that the trial court did not deny the motion as “untimely,” but instead because no specific rule suggests that a defendant may receive additional opportunities to obtain relief under rule 3.800(c) after each resentencing pursuant to a collateral appeal. n1 Nevertheless, this case presents a timeliness question: does the rule make relief available only within the sixty-day period after either the original sentencing, the completion of  [*6]  the direct appeal process, or a resentencing as the result of such direct appeal process, or is relief also available within sixty days after the imposition of any new legal sentence imposed as the result of a collateral motion?

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

Presumably, the same reasoning would apply to resentencing following the granting of a collateral motion.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

The state’s second reason is that the rule is purely discretionary and Defendant did not establish that the trial court abused its discretion by denying her motion. It is clear, however, that the trial court never exercised its discretion. Defendant points out that the trial court obviously wanted to rule on the merits, because it held a hearing on her motion; but it ruled only as to its jurisdiction to rule.

This appears to be an issue of first impression in the appellate courts of this state. Neither party cites a reported opinion precluding the mitigation of a sentence pursuant to rule 3.800(c) following a resentencing which is the result of a successful collateral attack, or any examples in which such relief was granted. Nor have we been able to locate any.

We agree with Defendant that the clear language of the rule indicates it applies to her situation.  [*7]  The rule allows a trial court to “reduce or modify . . . a legal sentence imposed by it within 60 days after the imposition.” It does not state that it cannot apply when a legal sentence is first imposed as the result of the correction of an illegal sentence due to a successful collateral attack on the sentence. Prior to October 11, 2006, Defendant’s sentence was illegal. On that date, her legal sentence was imposed, thus giving the trial court jurisdiction to reduce or modify it.

Courts do use the term “imposition” of a sentence to describe resentencing pursuant to a postconviction motion. E.g., Dougherty v. State, 785 So. 2d 1221, 1223 (Fla. 4th DCA 2001) (holding that a defendant has a right to be present at sentencing, whether the sentence to be “imposed” results from adjudication of guilt or from a successful rule 3.850 motion) (quoting from Barcelo v. State, 774 So. 2d 895, 896 (Fla. 4th DCA 2001)); Wilson v. State, 947 So. 2d 1225, 1226 (Fla. 1st DCA 2007) (direct appeal from sentence “imposed” after partial granting of rule 3.800(a) motion).

Furthermore, if there is a question as to precisely what is meant by the rule’s phrase “legal sentence imposed,” we are required to apply  [*8]  the rule of lenity. § 775.021(1), Fla. Stat. (2006) (”The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”) (emphasis added).

Accordingly, we grant the petition and quash the order on review. However, in light of the fact that the motion was filed within sixty days of Defendant’s resentencing on October 11, 2006, we determine that she may seek mitigation and reduction of her sentence only as to the counts for which a legal sentence was imposed on that date.

We recognize that it does not make much sense for a defendant who was legally sentenced at the outset, or whose sentence was corrected promptly through the direct appeal process, to be limited to filing such a motion only within the sixty-day period after either the original sentencing, the completion of the direct appeal process, or a resentencing as the result of such direct appeal process, while a defendant who later succeeds in obtaining some form of relief from his or her sentence, no matter how slight, and no matter how long after his or her conviction and sentence became  [*9]  final, should thereby obtain the right to invoke the trial court’s discretion in this way a second (or more) time. n2 As the issue appears to be one of first impression, we certify the following question as a matter of great public importance:

IS RELIEF PURSUANT TO RULE 3.800(c) AVAILABLE ONLY WITHIN THE SIXTY-DAY PERIOD AFTER EITHER THE IMPOSITION OF A CONVICTED DEFENDANT’S ORIGINAL SENTENCE, THE COMPLETION OF THE DIRECT APPEAL PROCESS, OR A RESENTENCING AS THE RESULT OF SUCH DIRECT APPEAL PROCESS, OR IS IT AVAILABLE ALSO WITHIN THE SIXTY-DAY PERIOD AFTER A LEGAL SENTENCE WAS IMPOSED AS THE RESULT OF THE FILING OF A COLLATERAL MOTION FOR POSTCONVICTION RELIEF?

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

A defendant who can file a rule 3.800(c) motion years after sentencing may be in a better position to advise the trial court of all the actions he or she has taken in the time following sentencing to express remorse and to rehabilitate himself or herself, becoming a person whom the trial court might be more willing to return earlier to society. We see no good policy reason to allow such discretion based on whether the defendant delayed seeking the correction of his or her illegal sentence to the filing of a collateral motion rather  [*10]  than having it corrected on direct appeal, or to give defendants an incentive for such delay.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Petition Granted, Order Quashed.

GROSS and TAYLOR, JJ., concur.

FARMER, J., dissents with opinion.

 

 

DISSENT BY:   FARMER

DISSENT  

FARMER, J., dissenting.

I think a clearer statement of the issue and holding might be this. Defendant was convicted upon her plea of no contest in 1991. She never appealed her conviction or sentences. In 2004 she asked the trial court to correct an illegal sentence, which the court granted. She then filed another request to correct still another illegal sentence, which we granted, the trial court then making the correction. Now she has filed something entirely new, something having nothing to do with an illegal sentence. She now asks the trial judge to reduce her sentences under rule 3.800(c) — that is, to grant her leniency and give her a shorter term.

Rule 3.800(c) allows a trial judge to reduce a sentence — provided the judge does so within 60 days of pronouncing the sentence. n3 Of course her sentences were final more than 16 years ago. The trial judge denied her request, saying in an order that he doubted she could even ask for such relief at this late date. The sea of ink representing  [*11]  the majority opinion says somewhere, yes, she can ask and the trial judge should therefore consider her request on the merits. I think the outcome and rationale are in error.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -3

Rule 3.800(c) also makes the 60 day period within which relief must be sought begin to run after a direct appeal from the conviction/sentencing becomes final. Of course, here there was no direct appeal from the conviction/sentencing, so this added provision simply has no bearing on this case. A good part of the sea of ink represents a tortured attempt to make this added provision apply to the appeal she took from the trial judge’s denial of her second request to correct an illegal sentence. By the rule’s text, it does not.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Rule 3.800(c) decisions are simply not reviewable by appellate courts. n4 The various provisions allowing criminal appeals do not include rule 3.800(c). They do include appeals of final orders entered upon requests under rule 3.850, but these must be filed within two years of the conviction. Nothing in any rule even hints that failures to grant mercy under rule 3.800(c) may be reviewed by anyone at any time. I would end this case here and now with a dismissal. We have no jurisdiction to do anything  [*12]  — not by appeal or writ. Even though we can tell a trial judge by mandamus to consider a timely 3.800(c) request, this one is so far outside that pale that our intervention is both unauthorized and unreasonable.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -4

I do not think requests to correct an illegal sentence under rule 3.800(a) constitute collateral review. Rule 3.850 is collateral review. In any case, collateral review is not mentioned in rule 3.800(c). Its 60-day provision runs from direct appeal, not collateral review.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

DARRELL HOSEA WEATHERS, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-857

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

 

April 30, 2008, Decided

 

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

 

PRIOR HISTORY:    [*1] 

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Burton C. Conner, Judge; L.T. Case No. 562006CF003972A.

 

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

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

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

OPINION BY:   GROSS

OPINION  

GROSS, J.

In this case we write to address one issue–whether, in the midst of a jury trial, the trial court properly denied the defendant’s motion to dismiss after the defendant learned that the state had violated the rules of discovery by failing to disclose the existence of a confidential informant. We find no abuse of discretion and affirm.

Darrell Weathers was convicted of selling a counterfeit controlled substance to an undercover police officer. At trial, the officer described his dealings with Weathers; the officer was the passenger in a car driven by a confidential informant. After the officer’s testimony, the defense contended that the state had committed a discovery violation because it had failed to disclose that a confidential informant was an eyewitness  [*2]  to the crime. The prosecutor agreed that nothing in the discovery supplied to the defense indicated that a confidential informant was present at the buy. He explained that he had learned of the informant only the night before, after the jury had been sworn. The state told the judge that the informant was not available; the police tried to call her cell phone, but it had been disconnected. The prosecutor said that the officers were “working on other ways to notify” the informant. n1 Considering the remedy for the discovery violation, the trial judge indicated that “we are potentially talking about a mistrial.”

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

Although the state was unable to locate the informant on the day of the trial, the police found her by the time of sentencing sixteen days later.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

After a lunch recess, the state told the court that the police had “exhausted all of the phone numbers and possible addresses” for the informant, without success. The court invited argument from both sides on the issue of a mistrial. The defense attorney said, “just so we’re clear, we’re not asking for a mistrial, we’re asking for dismissal of the charge.” The trial judge questioned the defense attorney and confirmed that she was asking  [*3]  for neither a mistrial nor a continuance; she wanted only “a flat-out dismissal.” The court reserved ruling on the motion to dismiss and submitted the case to the jury.

After the guilty verdict, the court heard further argument on the motion to dismiss. The trial court found that the state’s discovery violation was “substantial” but “inadvertent.” The court recognized that had the defendant learned about the informant during discovery, he could have moved for disclosure of the informant under Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). In the end, the court denied the motion for dismissal.

We affirm the trial court’s decision not to dismiss the case. Faced with a party’s discovery violation, a court

may order the party to comply with the discovery or inspection. . . ., grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.Fla. R. Crim. P. 3.220(n)(1). Dismissal of an information is such an extreme sanction that it should be used only “when no viable alternative exists.” State v. Del Gaudio, 445 So. 2d 605, 608 (Fla. 3d DCA 1984)  [*4]  (quoting State v. Lowe, 398 So. 2d 962, 963 (Fla. 4th DCA 1981)); see also State v. Carpenter, 899 So. 2d 1176, 1182-83 (Fla. 3d DCA 2005); State v. Peragine, 465 So. 2d 1258 (Fla. 5th DCA 1985). The rationale for so limiting the sanction of dismissal of criminal charges “is to insure that the public’s interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor’s misconduct.” Del Gaudio, 445 So. 2d at 608.

As the trial court recognized, there were two viable potential sanctions in this case–to continue the trial to allow the state to locate and produce the informant or to grant a motion for mistrial. The defense attorney rejected both options. Faced with the state’s discovery violation, a defendant cannot force the imposition of the ultimate sanction by rejecting lesser, more appropriate ones.

POLEN and MAY, JJ., concur.

STATE OF FLORIDA, Appellant, v. DOMINICK GATTO, Appellee.

No. 4D07-337

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

 

April 30, 2008, Decided

 

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

 

PRIOR HISTORY:    [*1] 

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Lebow, Judge; L.T. Case Nos. 06-13469 CF10A and 06-14847 CF10A.

 

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

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.

JUDGES:   STEVENSON, J. KLEIN, J., concurs. TAYLOR, J., dissents with opinion.

OPINION BY:   STEVENSON

OPINION  

STEVENSON, J.

Dominick Gatto entered open no contest pleas to felony driving with a suspended license (lower court case number 06-13469), and grand theft and engaging in business as an unlicensed contractor during a state of emergency (lower court case number 06-14847). The lowest permissible sentence in both cases, as calculated on Gatto’s score sheets, was 28.65 months incarceration. Gatto sought, and was granted, a downward departure sentence based upon Florida Statutes section 921.0026(2)(d), (2006) (need for specialized treatment unavailable in prison setting). The State has appealed, arguing that the evidence before the trial court was insufficient to permit the departure. We agree and reverse the departure sentence.

Section 921.0026(2)(d)  [*2]  permits a trial court to impose a sentence that is below the lowest permissible sentence where “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction . . . , and the defendant is amenable to treatment.” If a departure is to be permitted on such ground, the defendant must also establish, by a preponderance of the evidence, that the Department of Corrections cannot provide the required “specialized treatment.” See, e.g., State v. Green, 971 So. 2d 146, 148 (Fla. 4th DCA 2007), review denied, No. SC07-2421, 2008 Fla. LEXIS 713, 2008 WL 1001603 (Fla. Apr. 10, 2008); State v. Green, 890 So. 2d 1283, 1286 (Fla. 2d DCA 2005). A trial court’s determination that the defendant has satisfied his burden of establishing the facts required for departure is a “‘mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.’” Green, 971 So. 2d at 148 (quoting Staffney v. State, 826 So. 2d 509, 511 (Fla. 4th DCA 2002)).

In support of a downward departure sentence, Gatto offered the testimony of Dr. Michael Brannon. Dr. Brannon testified that after meeting  [*3]  with Gatto, performing a mental status exam and clinical interview, and reviewing medical records, he was of the opinion that Gatto met the criteria for Major Depressive Order and suffered from long-term polysubstance abuse. Brannon testified that the commission of Gatto’s crimes was more likely tied to his substance abuse than his mood disorder and that he believed Gatto would benefit from being placed into a dual diagnosis program. The doctor opined that the “best strategy” would be a “residential substance rehabilitation for concurrent medicine for his depression” as Gatto was too high functioning for a “standard dual disorder program.” He also testified that “the appropriate strategy would be the medication would be adjunct with his diagnosed mood disorder going back to 2003, but primarily dealing with what brings him into contact with the legal system, the most of which appears to be his substance problem.”

When asked whether Gatto could receive the treatment he required in prison, Dr. Brannon testified as follows:

DOCTOR: He certainly could get some treatment in a prison setting. He could get — NA groups volunteers come in three or four times a week. He could get monthly medication  [*4]  management. He could get some treatment, which is better than no treatment.

. . . .

COURT: I’m not sure I quite understood your recommendations. When you say he’s high functioning and should go into what type of a program? DOCTOR: Well, there’s two strategies for people with dual diagnosis conditions. One is a standard dual diagnosis program which primarily has individuals that are lower functioning in terms of their ability to relate, maybe they’re hallucinating or have delusions. His problem is primarily mood. Most of that mood disturbance appears to be depression. He appears to function pretty well. He was functioning better last night from the first time I saw him.

So based upon that, his primary problem that seems to cause problems with the law is his substance abuse problem. Most substance abuse programs allow for concurrent care for psychiatric case management services. I think that’s the most efficacious intervention for him.

We acknowledge the difficulty that this case presented to the trial court because of the close relationship between Gatto’s mood disorder and his substance abuse. Gatto had been prescribed an anti-depressant and a mood stabilizer for his depression disorder  [*5]  in 2003, but had stopped taking his medication:

PROSECUTOR: If a person requires medication for whatever reason and doesn’t take it, is that more likely to provoke worsening or deterioration of the condition?

DOCTOR: Yes. And oftentimes people who have substance abuse disorder what they do is they self-medicate with substances. Mood disorders — especially if there’s any mania involved, which is what the jail psychiatrist had diagnosed, is an additional reason why they stop taking their psychotropic medication. Oftentimes it’s to recreate the mania that they don’t get when they’re on their medication. So that’s two reasons why he may not have taken medication. The other may be lack of access to medication.

Dr. Brannon’s testimony was insufficient to establish that Gatto could not receive the required “specialized treatment” for his mental disorder in prison. At the end of the day, what Dr. Brannon testified to was that Gatto required a residential substance abuse program for his substance abuse and medication for his depression. The doctor acknowledged that Gatto could receive substance abuse treatment and medication for depression in prison and never testified that Gatto required counseling  [*6]  or other types of therapies for his depression and/or mood disorder that were not available in prison. Further, the statute does not allow a downward departure for specialized treatment which Gatto might require for his substance abuse diagnosis. See § 921.0026(2)(d), Fla. Stat. (”The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction . . . .”). At most, Dr. Brannon’s testimony is susceptible to an interpretation that he believed Gatto might receive better or more treatment outside of a prison setting, but not that treatment was unavailable through DOC. We thus reverse the downward departure sentence and remand the case to the trial court for the imposition of a sentence that is not less than the lowest permissible sentence calculated under Gatto’s Criminal Punishment Code score sheet. See State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003).

Reversed and Remanded.

KLEIN, J., concurs.

TAYLOR, J., dissents with opinion.

 

 

DISSENT BY:   TAYLOR

DISSENT  

TAYLOR, J., dissenting.

I respectfully disagree with the majority’s decision to reverse the downward departure sentence imposed by the trial court. The psychologist’s testimony regarding the defendant’s need  [*7]  for specialized treatment for his mental disorder, apart from any substance abuse counseling, and the inadequacy or unavailability of appropriate treatment for his condition within the prison system, was sufficient to support the trial court’s decision to impose a downward departure sentence. I would therefore affirm the sentence.

Victor Pestano, Appellant, vs. The State of Florida, Appellee.

No. 3D07-260

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

 

 

April 30, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

 

PRIOR HISTORY:    [*1] 

An Appeal from the Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge. Lower Tribunal No. 03-28843.

 

COUNSEL:   Ronald S. Guralnick, for appellant.

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

JUDGES:   Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.

OPINION BY:   GREEN

OPINION  

GREEN, J.

Victor Pestano appeals his convictions and sentences for first degree murder without a firearm; sexual battery without a firearm; kidnapping without a firearm; and robbery carjacking without a firearm. We find no merit to the issues raised on appeal and affirm.

In 1995, the victim’s body was found in the trunk of her automobile, submerged in a canal. An autopsy revealed that the victim died from blunt trauma to the head and from drowning. The autopsy also revealed the presence of semen in the victim’s vagina. Miami-Dade police detectives investigated this case for a period of time, but were unable to develop any leads or clues as to the perpetrator(s).

In 2003, the police received a call implicating Pestano and co-defendant Dulie Alonzo Green, Jr., in this crime. The informant gave the police a sworn statement that these men had admitted to abducting, robbing, and raping the victim.  [*2]  The police got a search warrant to obtain saliva samples from the men for DNA testing.

The police went to Pestano’s house to serve the warrant. Pestano was not home when the officers arrived; they decided to wait. When Pestano arrived, the police identified themselves and asked Pestano to accompany them to the station. Pestano asked to change his clothes; thereafter, at about 6:30 a.m., he rode to the station with the officers. n1 The detective did not produce the search warrant and did not rely on it.

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

The detective testified at trial that Pestano was not under arrest at the time he was transported. Although the detective had testified at deposition that Pestano was arrested, based on a notation in the police report, at trial he clarified that this was not the case.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

At the station, Pestano was placed in a wired interview room. Pestano was read his Miranda rights. He signed a written waiver and consented to providing a DNA sample. At about 7:40 a.m., the police began interrogating Pestano and the co-defendant separately. Each man gave opposing accounts of the events: each said that he picked the other man up in a car with an unknown female passenger in the front seat. Each claimed he had  [*3]  sex with the female in exchange for the other man letting her go; each said he left, leaving her with the other man.

Pestano asked to speak with Dulie Green. The police permitted the men to speak to each other. They were placed in a room together; their conversation was video and audio taped. The men agreed to a version of the story that placed the blame on a third person, who was deceased. They agreed to say that they left the victim alone with the third person.

After the co-defendants conferred, they were again interviewed separately. Pestano was re-advised of his Miranda rights. After further interrogation, Pestano gave a sworn statement. The statement contained Pestano’s original statement and the purportedly “true” version: The co-defendants were walking with a third man. The third man jumped into the woman’s car and ordered them to get in front. The three men drove to the park where the co-defendants got out of the car. Thereafter, the third man got out of the car and said the victim had agreed to have sex with them. The co-defendants then departed, leaving the victim with the third man. At that point, the interrogation concluded.

Prior to trial, Pestano filed a motion to suppress  [*4]  or exclude the video/audio tape of the conversation between the co-defendants, a motion to suppress or exclude the confession, and a motion to suppress/exclude the statements and evidence based on an unlawful arrest. At the hearing on the motions, the court found that Pestano was not arrested when he was picked up at his house, and denied the latter motion accordingly. The court denied the motion to suppress the videotaped conversation on the grounds that there was no expectation of privacy in a police interview room and that the admission of the tape did not deprive Pestano of his right of confrontation.

At trial, the state presented DNA evidence, physical evidence from the crime scene and forensic evidence regarding the murder. Pestano’s defense was that he merely had consensual sex with the victim. Pestano requested that the court give an independent act jury instruction. The court declined the request. The jury convicted defendant as charged, without a firearm. Defendant appeals.

As his first issue on appeal, Pestano argues that the trial court erred in denying his motion to suppress/exclude his video/audio taped conversation with the co-defendant and erred in denying his motion  [*5]  in limine regarding this video/audiotape. We disagree.

The trial court properly denied the motions to suppress as to the taped conversation at the police station. The record demonstrates that Pestano adopted the co-defendant’s statements as his own. Globe v. State, 877 So. 2d 663 (Fla. 2004)(revised opinion). Hence there was no error in admitting the conversation into evidence. n2

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

We find no abuse of discretion in the trial court’s finding of fact that the defendant was not arrested when he went to the police station. Defendant went voluntarily, and the record demonstrates he was properly advised of his rights, he signed a proper waiver and he answered the questions voluntarily. Smith v. State, 424 So. 2d 726, 729-30 (Fla. 1983); Bedoya v. State, 779 So. 2d 574, 578-79 (Fla. 5th DCA 2001).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Moreover, the defendant had no reasonable expectation of privacy in the conversation held in the police interrogation room. Larzelere v. State, 676 So. 2d 394 (Fla. 1996); Bedoya v. State, 779 So. 2d 574 (Fla. 5th DCA 2001). Contrary to defendant’s assertion, this case is distinguishable from State v. Calhoun, 479 So. 2d 241 (Fla. 1985). The Calhoun defendant was read his Miranda rights and he asked  [*6]  to speak privately with his brother. The police agreed but monitored the conversation. After the conversation, the defendant was again given his Miranda rights. Defendant immediately invoked his right to remain silent and asked to speak with his attorney. Thereupon the police brought the brothers back together so their conversation could be monitored again and taped. The Calhoun court held that although a “defendant usually would not have a reasonable expectation of privacy in the ‘jailhouse’ or even the interview room,” Calhoun, 479 So. 2d at 243, given the fact that Calhoun had invoked his right to remain silent and to speak with an attorney, Calhoun did have a “justified expectation of privacy.” Id. Nothing giving rise to such an expectation occurred in this case. n3

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -3

Additionally, State v. Hernandez, 875 So. 2d 1271 (Fla. 3d DCA 2004) (Hernandez I), does not require reversal. This court’s Hernandez I opinion was issued June 16, 2004. In its discussion of the Confrontation Clause, this court discussed the Florida Supreme Court’s March 18, 2004, opinion in Globe v. State, 877 So. 2d 663, 29 Fla. L. Weekly 345 (Fla. March 18, 2004). Hernandez I, 875 So. 2d at 1273 (citing March 18 version). This  [*7]  court concluded that, based on the just-released decision of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), admission of the co-defendant’s out-of-court statements would violate the Confrontation Clause. 875 So. 2d at 663.

On July 1, 2004, the Florida Supreme Court issued a revised opinion in Globe v. State, 877 So. 2d 663 (Fla. 2004) which modified the discussion of the Confrontation Clause. Globe, 877 So. 2d at 672-73. The revised Globe opinion addressed Crawford v. Washington, and held that “statements admitted as adoptive admissions do not implicate the Confrontation Clause.” Globe, 877 So. 2d at 673. The revised opinion in Globe is, of course, controlling regarding the Confrontation Clause to the extent of any inconsistency with this court’s earlier Hernandez I decision. See Hernandez v. State, 33 Fla. L. Weekly D649, D650 (Fla. 3d DCA Mar. 5, 2008) (Hernandez II).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

As to Pestano’s second issue on appeal, we conclude that the trial court did not abuse its discretion in denying the motion to suppress the written statement. There was no constitutional infirmity in the taping of the men’s conversation, see supra, therefore, there can be no finding that  [*8]  the subsequent written statement, preceded by re-advising the defendant of his Miranda rights, is the fruit of the poisonous tree.

As to the last issue, we conclude that the court properly denied Pestano’s request for an independent act jury instruction. Ward v. State, 568 So. 2d 452, 453 (Fla. 3d DCA 1990); Boyd v. State, 912 So. 2d 26, 27 (4th DCA 2005). See Ray v. State, 755 So. 2d 604, 609 (Fla. 2000). Denying any involvement in a crime, which was defendant’s theory at trial, as supported by his testimony, negates the propriety of an independent act instruction. Boyd, 912 So. 2d at 27; Ward, 568 So. 2d at 453. Hence, this argument has no merit.

Based on the foregoing, we affirm the convictions and sentences.

Affirmed.

VICTOR JOYNER, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-1668

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

 

April 30, 2008, Decided

 

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

 

PRIOR HISTORY:    [*1] 

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey Levenson, Judge; L.T. Case No. 06-18253 CF10A.

 

COUNSEL:   Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

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

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

OPINION BY:   STONE

OPINION  

STONE, J.

Joyner appeals a judgment and sentence for possession of hydrocodone and alphrazolam. He asserts that testimony by a state’s witness was susceptible of being interpreted as a comment on his right to remain silent and failure to produce evidence.

As there was no motion to strike, the defense asserts fundamental error. Affirming, we conclude that even if the comments, which occurred during cross-examination, were improper, the testimony was invited by defense counsel’s inquiry.

The  [*2]  state’s main witness was Detective Farrell, who executed a search warrant where Joyner was found. While searching Joyner’s bedroom, Farrell found a pill bottle, with Joyner’s name on it, containing Zanex and six Hydrocodone pills. The trial centered on the credibility of Farrell’s testimony.

The state, on direct examination, asked Farrell about Joyner’s statements to him:

Q. Now, you mentioned you had conversations with the defendant. Did you read him his Miranda rights?

A. Yes.

Q. Did you read them off a card?

A. I read them off a card itself.

Q. Can you tell the jury how you read it?

A. After each right, I asked him if he understands. The defendant says “yes” or “no.”

After that, he agreed to talk to me. The defendant was very cooperative in talking to me. He basically wanted to work off his charges.

***

Q. Can you tell us what questions you asked?

A. I asked how long he had been selling cocaine from his house. He said a couple of months.

I asked him how much he makes. He said $ 150 a day. He is doing it to get by, to make some money to get by.

I asked him about the pills, themselves. He said he has a heroin problem. On the street, heroin is expensive, so he started to do prescription drugs.  [*3]  You get them two for five bucks on the street.

Q. Did he tell you where he got the prescription drugs?

A. That’s what we were discussing. Then he said he was going to talk to his attorney to see if he could work off the charges.

Q. If you can, just answer the questions that I ask. Did he tell you where he got the prescriptions?

A. Off the street.

Q. Did he say whether he had a prescription for those drugs?

A. No prescription.

Q. He acknowledged those drugs were his?

A. Yes. The pills, the prescription was his.

Q. Did you ask him whether or not he lived in the home?

A. He said he lived there.Joyner’s trial counsel then cross-examined Farrell:

Q. You are presuming Mr. Joyner resided there?

A. No. Mr. Joyner told me, “I live there.”. . . .

Q. Let’s talk about those statements. Those statements were taken at the scene, correct?

A. Yes.

Q. Those are statements that you said you got in anticipation of using them here in court, correct?

A. As far as talking to them, yes, it is used in court.

Q. That is part of the Miranda warnings. “Anything you say may be used against you.” So those are important?

A. Correct, correct.

Q. You have the ability . . . to take him to the station to record those statements?

A.  [*4]  Correct.

***

Q. You have the ability to make an audio recording?

A. Yes.

Q. Just a tape recording?

A. Yes.

Q. That could have been done on scene?

A. I don’t normally do it on scene. They are reluctant to talk to us on the scene.

Q. But in this instance, you said he talked to you?

A. As far as the recorder, I don’t do it on the scene.

Q. Well, you had an opportunity to do it. You could have taken him to the station.

A. In the interview room, he was reluctant to do it on audio. He wanted to talk to his attorney first.

Joyner’s trial counsel also cross-examined Farrell about his failure to record the names of two women who were at the apartment with Joyner.

Q. So you didn’t list them because they are not relative [sic] to you?

A. I didn’t need them as witnesses. No, I did not.

***

Q. Despite they may have information that may be helpful to the State or defense or even law enforcement, you didn’t list them?

A. If you want to talk to them, I am sure the defendant knows their names. I didn’t need them as witnesses in my report.

Comments that are “fairly susceptible” of being interpreted as a comment on the defendant’s right to remain silent “will be treated as such.” Grier v. State, 934 So. 2d 653, 655 (Fla. 4th DCA 2006)  [*5]  (citing State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)). Whether such a comment is improper depends on the context in which it was made. Gosney v. State, 382 So. 2d 838 (Fla. 5th DCA 1980). For example, where a defendant does not remain silent at the time of arrest, the constitutional right to remain silent has been found not to have been exercised. See, e.g., Holmes v. State, 565 So. 2d 824, 825 (Fla. 1990); Fernandez v. State, 786 So. 2d 38, 40 (Fla. 3d DCA 2001); Ivey v. State, 586 So. 2d 1230, 1234 (Fla. 1st DCA 1991); Watson v. State, 504 So. 2d 1267 (Fla. 1st DCA 1986).

In San Martin v. State, 705 So. 2d 1337 (Fla. 1998), our supreme court concluded that San Martin did not exercise his right to remain silent where, on direct examination by the state, a deputy testified that he advised San Martin of his Miranda rights and that “San Martin gave an oral statement recounting his involvement in the robbery and shooting, but refused to give a stenographically recorded statement.” Id. The court explained the context as follows:

“[t]he accuracy and integrity of oral incriminating statements are frequent targets of defense counsel who often suggest an unfairness of the use of oral  [*6]  statements of an accused who has not been afforded the opportunity to put his statement in writing. It is only reasonable that the state be permitted to elicit the fact that the accused was given the opportunity and declined.”Id. at 1346 (quoting McCoy v. State, 429 So. 2d 1256, 1257 (Fla. 1st DCA 1983)). Therefore, the court agreed with the trial court, which found “that under the circumstances, San Martin’s refusal to give a formal recorded statement was not an exercise of his right to remain silent.” Id.

In Smith v. State, 754 So. 2d 54 (Fla. 3d DCA 2000), after Mirandizing Smith, the detective,

asked him whether he had been involved in the robbery, and Smith replied by asking [the detective] whether “anybody had seen a car leave.” Detective . . . responded that somebody had and Smith then stated “well, you got me on that.” During the trial, the prosecution, twice on direct and once on rebuttal, asked [the detective] whether Smith had given a stenographically recorded statement. Detective . . . testified that he requested such a statement but Smith had refused.Id. at 55. The Third District distinguished between a prosecutor presenting such a testimony “to explain why the statement  [*7]  had not been stenographically recorded” and “emphasiz[ing] Smith’s refusal to give such a statement by making repeated references to the refusal . . . and then arguing in closing that ‘[w]e know that the defendant did not want to give a [stenographic] statement and the reason should be rather obvious to you.’” Id. at 56.

With regard to burden shifting, the supreme court, in Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991), explained that “the state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.” See also Rodriguez v. State, 753 So. 2d 29, 37 (Fla. 2000) (the “State may not comment on a defendant’s failure to mount a defense because doing so could lead the jury to erroneously conclude that the defendant has the burden of doing so.”).

However, it is well recognized that a defendant “may not make or invite an improper comment and later seek reversal based on that comment.” Clark v. State, 363 So. 2d 331, 335 (Fla. 1978), overruled on other grounds by DiGuilio, 491 So. 2d at 1137 n.14. In Tacoronte v. State, 419 So. 2d 789 (Fla. 3d DCA 1982),  [*8]  defense counsel cross-examined a detective on what happened when Tacoronte turned himself in: “At that point I told that sergeant-identified myself and told him I was taking custody of him and adding additional charges and you [referring to defense counsel] advised me not to speak to him [referring to the defendant]. I said I wouldn’t.” Id. at 791 (alterations in original). Arguing that “this testimony was a reference to defendant’s failure to make a statement following his arrest,” defense counsel unsuccessfully moved for a mistrial. Id.

On appeal, the court commented:

even assuming the testimony was improper comment on defendant’s silence, we find that this case falls within the exceptions announced by the supreme court in Clark v. State, 363 So. 2d 331 (Fla. 1978), holding that no error occurs when defense counsel comments upon or elicits testimony concerning the defendant’s exercise of his Fifth Amendment privilege[.]Id. (”Since the objectionable testimony was clearly responsive to the line of questions being asked, and was elicited by defense counsel on cross-examination, it does not constitute reversible error.”).

In Castle v. State, 305 So. 2d 794, 797 (Fla. 4th DCA 1974), in affirming  [*9]  the judgment, this court reasoned that:

[t]he answer given by the arresting police officer was clearly responsive to the line of questions being asked. It was not volunteered, but rather was solicited by the questions posed by Appellant’s own counsel. Appellant’s lawyer attempted to find out from this witness why the accused had been arrested by this witness on one date and not another, and the witness gave his reason, [that on the earlier date he had tried unsuccessfully to get a statement]. Consequently, there is no error to complain about in the first place. A criminal defendant may not take advantage on appeal of an error which he himself induced at trial[.]

Similar to the invited comments on silence, the defense may invite a burden-shifting comment by the state. See, e.g., Mitchell v. State, 678 So. 2d 1362, 1363 (Fla. 1st DCA 1996) (”[W]e conclude that the prosecutor’s [burden-shifting] remarks were an invited, fair reply to initial remarks made by defense counsel and, when considered in context, did not constitute prejudicial error so as to require a new trial.”).

Here, similar to the San Martin and Fernandez comments, the first challenged comment was directed at explaining why  [*10]  Farrell did not record Joyner’s statement and did not amount to the state asserting that Joyner’s silence should be used against him.

We have considered Grier, and deem it inapposite. In Grier, on direct examination, the state asked the interviewing officer whether Grier would give a recorded statement, and the officer answered, ‘”No, he wouldn’t. And that — He thought about it for a while. And then he said, ‘No. I’d rather have an attorney present.’” Grier, 934 So. 2d at 654. “Later, the officer again mentioned Grier’s requests for an attorney . . . .” Id.

Recognizing that the state could properly head off a defense suggestion that his oral statement should be disregarded because it was not recorded, this court, nonetheless, found error because the officer’s statement “went beyond explaining that Grier refused to go on tape; the officer also added the fact that Grier stated, ‘No. I’d rather have an attorney present.’” Id. at 655.

In Grier, however, the officer’s comment on the defendant’s right to an attorney was elicited by the state on direct examination and again repeated by the state. Here, defense counsel elicited the officer’s response while cross-examining the state’s witness,  [*11]  thus inviting the error of which he now complains. Similar to the officers’ responses in Tacoronte and Castle, Farrell’s response was solicited by defense counsel on cross-examination. Joyner’s counsel attempted to find out from Farrell why Joyner’s statement was not recorded, and the officer gave his reason.

Further, Farrell’s second comment is not a comment on Joyner’s failure to produce evidence. Answering that Joyner likely knows the names of two women whom Farrell did not list as witnesses was not, as Joyner argues, a “statement[] regarding Appellant’s obligation to produce the names of witness[es],” and did not appear to lead the jury to believe that Joyner carried the burden of introducing evidence. Further, even if the reply was an improper burden-shifting comment and was not an invited error, the comment fails to constitute fundamental error. See generally McDonald v. State, 743 So. 2d 501, 505 (Fla. 1999).

Therefore, the judgment and sentence are affirmed.

STEVENSON and TAYLOR, JJ., concur.

JACQUELINE RODRIQUES, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-4725

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

 

April 30, 2008, Decided

 

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

 

PRIOR HISTORY:    [*1] 

Appeal of order denying rule 3.850 appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T. Case No. 2002CF013702AXX.

 

COUNSEL:   Patrick J. Curry, Fort Lauderdale, for appellant.

No appearance required for appellee.

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

 

OPINION  

PER CURIAM.

We affirm the summary denial of the appellant’s motion to vacate plea, but we do so without prejudice.

Appellant claimed her plea entered on March 23, 2003 was involuntary, in part due to a failure of the court to give any immigration warning as to the consequences of the plea. The lower court attempted to refute the allegation by attaching the preprinted change of plea form, without more. This does not conclusively prove that appellant understood the consequences. See Hen Lin Lu v. State, 683 So. 2d 1110 (Fla. 4th DCA 1996). Had the motion been legally sufficient, we would have been compelled to reverse.

However, the motion fails to meet the specific pleading requirements of State v. Green, 944 So. 2d 208 (Fla. 2006), insomuch as it fails to make any allegation as to how the appellant could prove the warnings were not given and fails to make any allegation that the appellant  [*2]  is deportable solely due to the conviction challenged herein. Absent such specific allegations in the sworn motion, the pleading is legally insufficient and should have been dismissed without prejudice, as there remains time under Green for a timely motion. Because time remains under Green, we do not command appellant to file an amended motion within any given period of time, though we note the time constraints under Green will apply.

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

Carlos Acosta, Appellant, vs. The State of Florida, Appellee.

No. 3D07-2596

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

 

 

April 30, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

 

PRIOR HISTORY:    [*1] 

An Appeal from the Circuit Court for Miami-Dade County, Lawrence A. Schwartz, Judge. Lower Tribunal No. 02-35810.

 

COUNSEL:   Bennett H. Brummer, Public Defender, and Jessica Zagier, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.

JUDGES:   Before GERSTEN, C.J., and LAGOA, J., and DAMOORGIAN, Associate Judge.

OPINION BY:   DAMOORGIAN

OPINION  

DAMOORGIAN, Associate Judge.

Carlos Acosta appeals his enhanced sentence as a Prison Releasee Re-offender (PRR) and a Violent Career Criminal (VCC) for battery of a law enforcement officer (BOLEO). We reverse because a BOLEO conviction cannot serve to enhance a sentence under the PRR or VCC statutes.

The VCC and PRR statutes call for an enhanced sentence when the felony committed is one of the enumerated felonies or if the felony falls within the forcible felony catchall. See Fla. Stat. §§ 775.082 and 775.084 (2002). BOLEO is not one of the enumerated felonies in either the VCC or PRR statutes. Id. In Perkins v. State, 576 So. 2d 1310, 1313 (Fla. 1991), the supreme court held that the statutory elements of the felony must involve “use or threat of physical force or violence against any individual” for it  [*2]  to fall within the forcible felony catchall. In State v. Hearns, 961 So. 2d 211, 220 (Fla. 2007), a case decided after Acosta’s sentence was imposed, the supreme court found that BOLEO does not fall under the forcible felony catchall for either statute because its elements do not necessarily involve “use or threat of physical force or violence.” n1 Consequently, a BOLEO conviction may not serve to enhance a sentence under the VCC or PRR statutes. Thus, the issue becomes whether Hearns should be applied retroactively.

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In Johnson v. State, 858 So. 2d 1071, 1072 (Fla. 3d DCA 2003) (on rehearing), this Court found that spitting on a law enforcement officer does not amount to “the use or threat of use of physical force or violence”.
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In order to determine whether Hearns controls, we must first determine what the law was at the time Acosta was convicted. See State v. Barnum, 921 So. 2d 513, 521 (Fla. 2005) (in determining whether a judicial interpretation of a criminal statute applies retroactively, the proper question is not whether the law has changed, but rather what the state of the law was at the time of the defendant’s conviction). If a decision of a court has changed the state of the  [*3]  law, then it can only be applied retroactively if it meets the three-prong Witt test. Witt v. State, 387 So. 2d 922, 931 (Fla. 1980) (decision that changes the law will only be considered if it (1) emanates from the Florida or US supreme courts; (2) the decision must be constitutional in nature; and (3) it must constitute a development of fundamental significance).

However, the supreme court in Hearns did not change the law; instead, the court held that the trial court’s finding that BOLEO could fall within the forcible felony catchall “conflict[ed] with [its] decision in Perkins.” 961 So. 2d at 212. The district courts’ decisions were in conflict with Perkins because they applied a factual analysis in order to determine whether the offense charged involved the “use or threat of physical force or violence against any individual” as opposed to looking only at the elements of the offense. Thus, the Hearns court did not change the law. Since Perkins was decided in 1991, under the law at the time of Acosta’s conviction, BOLEO did not fall within the forcible felony catchall. Consequently, the three-prong Witt test is not applicable.

Therefore, the trial court imposed an illegal sentence  [*4]  because, at the time of Acosta’s conviction, a conviction for BOLEO could not result in an enhanced sentence under the VCC or PRR statutes.

Reversed and remanded for further proceedings consistent with this opinion.

Ricardo Gonzalez, Petitioner, vs. The State of Florida, Respondent.

Nos. 3D07-1366 & 3D06-2572

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

 

 

April 30, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

 

PRIOR HISTORY:    [*1] 

On Petition for Writ of Certiorari from the Circuit Court for Monroe County, Ruth Becker, Judge. Lower Tribunal Nos. 00-94, 00-95, 00-96, 00-97, 00-98, 00-99, 00-100, 00-101, 00-102, 00-103, 00-104, 00-107, 00-108, 00-109.

 

COUNSEL:   Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for petitioner.

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

JUDGES:   Before COPE, RAMIREZ, and SALTER, JJ. COPE and RAMIREZ, JJ., concur. SALTER, J., concurring in part and dissenting in part.

OPINION BY:   COPE

OPINION  

COPE, J.

This is a petition for writ of certiorari in which petitioner-defendant Ricardo Gonzalez seeks to quash the trial court’s order holding that it was without jurisdiction to entertain the defendant’s motion to reduce or modify sentence under Florida Rule of Criminal Procedure 3.800(c). We conclude that (a) the trial court was correct, and (b) the defendant received ineffective assistance of trial counsel.

Pursuant to a plea, the defendant was placed on probation in fourteen cases of burglary of a conveyance (a third-degree felony) arising in Marathon, Florida, and two cases of grand theft (a third-degree felony) arising in Plantation  [*2]  Key, Florida. In 2004, affidavits of violation of probation were filed. The defendant admitted the violations. The trial court revoked his probation and sentenced the defendant to five years imprisonment on each count. Some of the counts ran concurrently and some ran consecutively, for an overall total of twenty years incarceration.

The question to be considered is whether the defendant’s subsequently-filed motion to reduce or modify sentence was timely. More particularly, the question is whether the time runs from the date of the oral pronouncement of sentence, or the date of filing the written sentencing order.

The trial court pronounced sentence on the defendant on March 30, 2006. The written sentencing orders were signed and filed with the circuit court clerk on April 3, 2006. Rule 3.800(c) allows for a reduction or modification of “a legal sentence imposed by [the court] within 60 days after the imposition . . . .” Fla. R. Crim. P. 3.800(c). n1 The defendant filed his motion to reduce or modify sentence on May 31, 2006. The motion is untimely if measured from the date of the oral pronouncement, but timely if measured from the date of filing the written sentencing order.

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Rule 3.800(c)  [*3]  provides:

(c) Reduction and Modification. A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it within 60 days after the imposition, or within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal, or within 60 days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, within 60 days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari. This subdivision shall not be applicable to those cases in which the death sentence is imposed or those cases in which the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion.
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The trial court conducted a hearing in August 2006, and raised the question  [*4]  whether the court had jurisdiction to consider the motion to reduce or modify sentence. After the parties filed memoranda and the court conducted a further hearing, the court entered an order finding that it was without jurisdiction to entertain the defendant’s motion. This petition for writ of certiorari followed. n2

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Trial counsel filed a notice of appeal. The parties agree that the notice of appeal should be treated as a petition for writ of certiorari. See Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla. 1989).
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Rule 3.800(c) uses the term “imposition” of sentence. The State maintains that “imposition” of sentence means the oral pronouncement required by Florida Rule of Criminal Procedure 3.700, and that the oral pronouncement should start the time period for purposes of rule 3.800(c). We agree. See Weaver v. State, 588 So. 2d 53, 54 (Fla. 3d DCA 1991); see also L’Heureux v. State, 968 So. 2d 628, 630 (Fla. 2d DCA 2007); Scott v. State, 629 So. 2d 280, 281 (Fla. 5th DCA 1993). The trial court correctly ruled that the motion was untimely.

A court can grant relief where the ineffective assistance of trial counsel is apparent from the face of the appellate record. See Rios v. State, 730 So. 2d 831, 832 (Fla. 3d DCA 1999).  [*5]  In this case, review is by certiorari and the ineffective assistance of trial counsel is clear on the face of the certiorari record. That is so because trial counsel had been retained to file a timely rule 3.800(c) motion but filed the motion one day late. n3

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As May 29, 2006 was Memorial Day, the sixtieth day was May 30. The motion was filed on May 31.
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We believe the logic of Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999), applies to this situation. We therefore grant the following relief. The time period for consideration of the pending rule 3.800(c) motion will be reopened for a period of sixty days. This time will begin to run upon the expiration of the time for filing a motion for rehearing (or other postdecision motion) of this opinion or, if such a motion is filed, on the date of the disposition of such motion. The State and defense counsel shall confer and obtain a date for a hearing before the trial court within the sixty-day period. If for any reason a hearing date cannot be obtained within that time, then defense counsel shall file a motion for extension of time and obtain a prompt hearing thereon. See Abreu v. State, 660 So. 2d 703 (Fla. 1995).

The court would point out that  [*6]  the sixty-day time deadline of rule 3.800(c) is frequently misunderstood. The sixty-day period is not merely a filing deadline. The sixty-day period is intended to be a filing-and-decision deadline. The intent is that the motion be both filed and decided within the sixty-day period and, if that cannot be accomplished, then a motion for extension of time should be filed as well. See Abreu, 660 So. 2d at 704-05. A court can also extend the deadline on the court’s own motion. See id.; McCormick v. State, 961 So. 2d 1099, 1102 (Fla. 2d DCA 2007).

In summary, the trial court was entirely correct on the timeliness issue and we deny certiorari on that issue. For the reasons we have stated, we grant the petition in part and restart the sixty-day time period for consideration of the rule 3.800(c) motion.

Certiorari granted in part and denied in part. n4

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The defendant also argues that there are two scrivener’s errors in the judgments and sentences. The defendant may raise those claims in the trial court by motion on remand.
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COPE and RAMIREZ, JJ., concur.

CONCUR BY:   SALTER (In Part)

 

DISSENT BY:   SALTER (In Part)

DISSENT  

SALTER, J., concurring in part and dissenting in part.

I concur with the majority that the trial court correctly  [*7]  ruled that the defendant’s motion to reduce or modify sentence was untimely under Florida Rule of Criminal Procedure 3.800(c). n5

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I also concur with the majority’s decision to treat the defendant’s “appeal” as, in substance, a petition for certiorari.
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I respectfully dissent, however, from the further steps in which the majority (a) determines that the late filing constitutes ineffective assistance of trial counsel on its face and (b) grants the defendant a further sixty days n6 within which the motion may be heard and determined by the trial court.

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The majority also suggests that this period may be further extended if, for any reason, a hearing date cannot be obtained within the sixty days.
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Simply stated, rule 3.800(c) was promulgated by a higher court and is jurisdictional. See United States v. Diaz-Clark, 292 F.3d 1310 (11th Cir. 2002) (holding that the time for filing a motion to reduce or modify sentence under the counterpart federal rule, Federal Rule of Criminal Procedure 35(c), is jurisdictional); Griffin v. State, 946 So. 2d 610 (Fla. 2d DCA 2007) (determining that a sixty-day requirement in another part of the same rule, rule 3.800(b)(2)(B), is a jurisdictional bar). It is our  [*8]  obligation to apply these jurisdictional rules, not to rewrite or apply equitable principles to them, absent some specific authorization from the Florida Supreme Court.

In Steele v. Kehoe, 747 So. 2d 931, 934 (Fla. 1999), cited by the majority, the Florida Supreme Court amended rule 3.800(b) to allow a belated appeal in a case in which “the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.” The supreme court is empowered to apply “more flexible standards of due process” n7 to post-conviction remedies, but we are to follow such rulings, not make them. In my view, Steele does not authorize us to be “more flexible” with rule 3.800(c).

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Steele, 747 So. 2d at 934.
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Rule 3.800(c) grants the defendant a brief opportunity to seek reduction or modification of a legal sentence at several different points in the appellate process. In this case, the defendant has only lost his right to present his motion to the trial court before his appeal on the merits is resolved. He may still seek modification by filing his motion within the sixty-day period following the trial court’s receipt of a final appellate mandate or order (on the merits, or  [*9]  otherwise) as specified in the rule itself.

Here is what the petition tells us about this defendant’s untimely motion below:

In the motion, Mr. Gonzalez requested an evidentiary hearing so that he could present extensive psychological evidence in the form of both records and testimony. At the proposed hearing, Mr. Gonzalez and his mother would testify “as to the nature of his psychological history (and how it affects his ability to live his life and comport his conduct).” n8

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Pet. at p. 7; record references deleted.
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Respectfully, we are not in a position to say, as required by the second “prejudice” prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), that the defendant has been irrevocably prejudiced by his counsel’s error. n9 First, the defendant has not shown or suggested how the new post-sentencing psychological evidence would alter the sentencing process or result. Any such suggestion is speculative. Second, rule 3.800(c) by its very terms preserves another window within which the defendant may file (and obtain a determination on) the motion in question.

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I concur with the majority’s view that the first prong of Strickland, objectively deficient performance, is satisfied here. Gonzalez’s  [*10]  counsel was not just “one day late” as suggested by the majority, however, because he filed the motion one day late. The rule requires that the motion also be heard and determined within the sixty-day period allowed.
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I therefore dissent and would affirm the trial court’s denial of Gonzalez’s motion as untimely. The trial court properly applied a rule, and I see no reason for us to (in effect) reverse that court for doing what the rule requires.