Florida Criminal Law Opinions

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.

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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.
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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

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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).
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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

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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).
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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.

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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.

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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.

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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.

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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.

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