Florida Criminal Law Opinions

Jerry Camon, Appellant, vs. The State of Florida, Appellee.

No. 3D07-115

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, Peter R. Lopez, Judge. Lower Tribunal Nos. 05-5864; 05-34636; 06-228.

COUNSEL:   Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.

JUDGES:   Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.

OPINION BY:   SUAREZ

OPINION  

SUAREZ, J.

Jerry Camon seeks to reverse the trial court’s summary denial of his motion to withdraw his plea and for appointment of conflict-free counsel. We reverse, as Camon was entitled to the appointment of conflict-free counsel.

After rejecting initial plea offers by the State, Camon participated in the plea colloquy and entered pleas in three cases. After sentencing, Camon filed a timely pro se motion to withdraw his pleas pursuant to Florida Rule of Criminal Procedure 3.170(l), alleging coercion by his attorney in the plea process. The court summarily denied that motion and Camon did not appeal. Camon later filed an “amended” rule 3.170(l) motion to withdraw his pleas, a motion to appoint counsel, and a motion for evidentiary hearing, for the same reasons as before and adding claims of vindictive  [*2]  sentencing. The trial court denied the motion to withdraw as insufficient, citing to the plea colloquy. The clerk then advised the judge that there was also a motion to appoint conflict-free counsel to advise Camon on the rule 3.170(l) motion. The court denied the motion and Camon appeals.

A post-sentence motion to withdraw a plea pursuant to rule 3.170(l) is a critical stage of criminal proceedings. n1 The trial court is obligated to appoint conflict-free counsel if the defendant is, at the time of filing the rule 3.170(l) motion, represented by trial counsel and the motion is facially sufficient to show that a conflict between the defendant and trial counsel exists with regard to the plea. n2 In the facts presented here, it is unknown whether Camon was represented by counsel at the time he filed his motion to withdraw the plea. Camon made claims that his trial counsel coerced him into taking the plea. At that point, the trial court was obligated to appoint conflict-free counsel to advise Camon further. n3

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See Searcy v. State, 971 So. 2d 1008 (Fla. 3d DCA 2008); accord Schriber v. State, 959 So. 2d 1254, 1256 (Fla. 4th DCA 2007).2

Searcy v. State, 971 So. 2d 1008 (Fla. 3d DCA 2008).3

See  [*3]  Schriber, 959 So. 2d at 1254; Padgett v. State, 743 So. 2d 70 (Fla. 4th DCA 1999);
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We reverse and remand, directing the trial court to appoint conflict-free counsel for Camon to assist him in the preparation of a rule 3.170(l) motion to withdraw his plea. Then, if the motion to withdraw the plea raises legally sufficient allegations of coercion, the trial court should hold an evidentiary hearing. If the allegations are legally insufficient or conclusively refuted by the record, the trial court can deny the motion to withdraw as to the allegation of coercion without holding an evidentiary hearing. n4

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Wallace v. State, 939 So. 2d 1123 (Fla. 3d DCA 2006); Padgett, 743 So. 2d at 70.
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Reversed and remanded with directions.

Courtesy of David Edelstein

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DAVID W. BAKER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-2570

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 Sarasota County; Charles E. Roberts, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

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

OPINION BY:   CASANUEVA

OPINION  

CASANUEVA, Judge.

David W. Baker appeals from the trial court’s order of restitution stemming from a prosecution for grand theft, use of fraud or false statement to obtain credit or property, and fraudulent use of personal information. Because we agree with Mr. Baker that it was error for the trial court to proceed with the restitution hearing in his absence, we reverse and remand for a new restitution hearing.

FACTS

On November 7, 2006, Mr. Baker pleaded guilty to several charges stemming from his use of false personal information to purchase a truck from Matthews Currie Ford, a car dealership. Mr. Baker was sentenced to sixty days in jail followed by twenty-four months’ probation and was ordered to pay restitution, the amount to be determined at a separate hearing, subsequently set for April 9, 2007. The State attempted to  [*2]  notice Mr. Baker of the hearing via the United States mail, but it sent the notice to the wrong address. The State informed Mr. Baker’s counsel of the date of the hearing, but counsel was unable to locate his client in time for the hearing.

Mr. Baker did not attend the April 9, 2007, hearing. Despite his absence–and after hearing the prosecutor’s admission to sending the notice to the wrong address and defense counsel’s inability to contact his client–the trial court proceeded with the hearing, without making a finding whether Mr. Baker had waived his right to attend. The trial court thus implicitly found that Mr. Baker had voluntarily waived his presence at the hearing. The State then called one witness, a representative from Matthews Currie Ford, who testified regarding the monetary losses to both the dealership and the bank that financed the purchase. Based on this testimony, the trial court imposed the order for substantial restitution that Mr. Baker appeals, claiming error for the trial court to have proceeded in his absence.

DISCUSSION

“A  [*3]  defendant has the constitutional right to be present at all stages of the trial at which fundamental fairness might be thwarted by his absence.” M.W.G. v. State, 945 So. 2d 597, 599-600 (Fla. 2d DCA 2006) (citing Coney v. State, 653 So. 2d 1009, 1013 (Fla. 1995)). A restitution hearing has long been considered such a stage. Id. at 600. Therefore, unless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence. Id.; Miller v. State, 833 So. 2d 318, 319 (Fla. 2d DCA 2003).

A defendant’s waiver of the right to be present at all stages of the proceedings may be express, or it may be implied from the defendant’s voluntary absence. Capuzzo v. State, 596 So. 2d 438, 439-40 (Fla. 1992); Miller, 833 So. 2d at 319. In order for a defendant to voluntarily absent himself from a hearing, a defendant must have had notice of the hearing and intentionally avoided it or left the court during the proceeding. Capuzzo, 596 So. 2d at 440.

Here, the State presented no evidence to show that Mr. Baker expressly waived his right to appear at the restitution hearing or that he knew of the hearing and voluntarily  [*4]  absented himself from it. The State instead concedes that it sent the notice to the wrong address and was relying on Mr. Baker’s counsel to inform his client of the hearing, which counsel was unable to do. This evidence is insufficient to carry the State’s burden to show a voluntary and knowing waiver.

Because no evidence showed that Mr. Baker had actual notice or other knowledge of the restitution hearing, we conclude that it was error for the trial court to implicitly find that he had waived his presence and to conduct the hearing in his absence. In the absence of such waiver, the result of the hearing cannot stand. We acknowledge and appreciate the State’s concession of error.

Accordingly, we reverse the order imposing restitution and remand with instructions to hold a new restitution hearing with proper notice to Mr. Baker.

Reversed and remanded with instructions.

CANADY and LaROSE, JJ., Concur.

Courtesy of David Edelstein

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SCOTT ADRIAN WALDRON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-2007

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 

 

April 25, 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 Highlands County; Peter F. Estrada, Judge.

 

COUNSEL:   James Marion Moorman, Public Defender, and Dan Hallenberg, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

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

OPINION BY:   CASANUEVA

OPINION  

CASANUEVA, Judge.

Scott Adrian Waldron appeals his conviction for burglary of a structure and petit theft, contending that the trial court erred by instructing the jury on the inference arising from the unexplained possession of recently stolen property. Because there was insufficient evidence produced by the State at trial to merit this instruction, we reverse and remand for a new trial.

EVIDENCE BEFORE THE JURY

On February 1, 2006, the building that once housed Walker Memorial Hospital was empty and closed to the public. Its windows were boarded up and some of its doors were welded shut. Its caretaker was checking up on the building and, after entering it, he heard suspicious sounds. He called law enforcement and several officers arrived about fifteen minutes later. When some officers and the caretaker investigated further, they found  [*2]  inside the building two bags of tools, including cutters for bolts and wire, and rolled copper wire and tubing on the floor. The caretaker had been inside the building the day before and had not seen any tools or copper items pulled from the walls at that time. n1

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When the caretaker again checked the building a few days later, he noticed that the board covering a glass entrance door had been pried loose at the bottom and the glass panel of the door was knocked down, thus allowing access to the building but concealing the point of entry.
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One of the officers was checking the rear of the building and came upon Mr. Waldron walking on a sidewalk that separated the building from the nearby lake only about a hundred yards away. Mr. Waldron was carrying two fishing poles that the officer noticed were broken and that had lines that were not properly attached. Mr. Waldron’s hands were dirty and he had what appeared to be a fresh cut on one. In response to questioning, Mr. Waldron looked nervous and said he had been fishing in the nearby lake, and his hands were dirty because he had been digging for worms. Mr. Waldron admitted to the officer that he had been inside the building and looked around  [*3]  but denied that he had attempted to steal anything.

The copper wiring that was pulled from the walls and ceiling of the building had been encased in a black material that, when handled, left a black, sticky, grimy substance on one’s hand. The officer interviewing Mr. Waldron also noticed a similar substance on Mr. Waldron’s hands. At trial, Mr. Waldron denied that he had such substance on his hands. There was undisputed evidence at trial that copper was a valuable commodity, then selling for several dollars a pound.

Over objection from defense counsel, the trial court gave the jury the standard instruction on proof of possession of stolen property, which is based on section 812.022(2), Florida Statutes (2005). n2 The instruction tells the jury:

Proof of unexplained possession by an accused of property recently stolen by means of a burglary may justify a conviction of burglary with intent to steal that property if the circumstances of the burglary and of the possession of the stolen property, when considered in the light of all evidence in the case, convince you beyond a reasonable doubt that the defendant committed the burglary.Fla. Std. Jury Instr. (Crim.) 13.1. At the jury charge conference,  [*4]  the State convinced the trial court to give the instruction by arguing that the evidence showed that Mr. Waldron was in constructive possession of the recently stolen property. The State relied on Holcomb v. State, 946 So. 2d 633 (Fla. 4th DCA 2007) (rejecting the defendant’s argument that only actual possession and not constructive possession warrants the instruction).

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Section 812.022(2) provides in relevant part: “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.”
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DISCUSSION

Our supreme court has held that this instruction is permissible and not a comment on the evidence. Walker v. State, 896 So. 2d 712 (Fla. 2005). Because a person’s possession of the recently stolen property involves the fruits of the burglary, the possession is “inextricably intertwined with the crime itself.” Id. at 719. Unexplained possession of stolen property is sufficient to support a burglary conviction when it occurs as an adjunct to theft. Francis v. State, 808 So. 2d 110, 134 (Fla. 2001).

Because it was advanced by the State and relied upon  [*5]  by the trial court, we review Holcomb, 946 So. 2d 633. It is, however, distinguishable on its facts, and the trial court ought not to have relied upon it. Mr. Holcomb was found seated behind the steering wheel of a pickup truck in a part of a marina that was not open to the public. When a security guard tried to confront a second man seen exiting a boat, the second man got into the cab of Mr. Holcomb’s truck. The two attempted to flee but their flight ended when a locked gate barred their exit from the marina. The second man fled, leaving Mr. Holcomb to be arrested and ultimately charged with burglary and the theft of the recently stolen items located in the bed of his pickup truck. Id. at 633-34.

Here, the evidence is materially different from that in Holcomb. Unlike Mr. Holcomb, who had the stolen items in the bed of the pickup truck he was driving, Mr. Waldron only had fishing poles in his possession, poles that were not claimed to be stolen. Mr. Waldron was outside the building in which the stolen items were discovered, but no evidence was presented that he could exercise dominion and control over those items so far from his reach. Neither did the evidence suggest that Mr. Waldron  [*6]  had dominion and control over the building where the items were located. Although the State correctly relied on Holcomb for the proposition that evidence of constructive possession as well as of actual possession warrants the challenged instruction, the trial court erred in acceding to the State’s request for the instruction in the face of the deficiency in the State’s evidence.

Approximately one year before Mr. Waldron’s trial, in Bronson v. State, 926 So. 2d 480 (Fla. 2d DCA 2006), this court discussed when the instruction regarding the inference arising from the possession of recently stolen property should be given. Our record does not disclose that either party brought this case to the trial court’s attention.

“To receive the benefit of the statutory inference, the State must establish, pursuant to section 812.022(2), that a defendant had ‘possession of property recently stolen.’” Id. at 483. Bronson makes clear that to establish the requisite possession, the State must carry the burden of a two-prong evidentiary predicate. Id. In Mr. Waldron’s case, the first prong was met because the evidence showed that the copper items were removed from the walls and ceiling of the building  [*7]  without permission. Second, the State must also establish that the defendant had either actual or constructive possession of the property. Id. It is this second predicate that the State failed to lay to warrant the instruction in Mr. Waldron’s case.

The evidence that the State presented against Mr. Waldron is insufficient to establish that he had either actual or constructive possession of the copper wire and tubing that was removed from the walls of the former hospital and left on the floor in the building. Although removed from the walls and ceiling, the property had not been removed from the building when the officer discovered Mr. Waldron. Because it was clearly not on his person or in his nearby vehicle, unlike in Holcomb, 946 So. 2d at 634, he did not have actual possession of the property. Additionally, because Mr. Waldron was discovered outside the building, there is no record evidence to establish that he had the present ability to exercise dominion and control over the items that remained inside the building. Without proof of this critical element, there can be no support for constructive possession.

In Adams v. State, 693 So. 2d 1031 (Fla. 2d DCA 1997), this court reversed  [*8]  a conviction for grand theft by a jury that had been given the instruction on the inference arising from possession of recently stolen property. We noted:

The state did not present competent, substantial evidence to support Adams’ conviction for grand theft. Although the circumstantial evidence strongly suggests guilt, the state did not prove that Adams took the truck from the service department’s parking lot. The state proved that the pickup truck was parked “nearby” when Adams and her husband were arrested at a motor home six months after the truck was stolen from the lot. However, the state did not prove that Adams or her husband were in possession of the truck. Thus, the state cannot rely on the inference arising from the possession of recently-stolen property.Id. at 1032 (citation omitted). “The state must demonstrate that the possession was personal, i.e., involved a distinct and conscious assertion of possession by the accused, and that the possession was exclusive.” Bozeman v. State, 931 So. 2d 1006, 1008 (Fla. 4th DCA 2006) (affirming conviction for grand theft of a Chevrolet that was being pushed by a Mazda driven by defendant); see also K.C.B. v. State, 715 So. 2d 1083, 1083-84 (Fla. 3d DCA 1998)  [*9]  (finding insufficient evidence to support dominion and control element of constructive possession of contraband found in an apartment into which the defendant ran when he was chased by police, but for which he did not have a key and did not own or occupy; such evidence “establishes nothing more than mere presence”). Because the State’s evidence did not meet the requirements of the predicate’s second prong–to show that the defendant had actual or constructive possession of the recently stolen property–it was error to give the challenged instruction.

CONCLUSION

This case presented a highly contested, heavily factual scenario. Without the benefit of the inference provided by the challenged instruction, we are unable to conclude that there is no reasonable probability that the error contributed to this conviction. Thus, the State has not met its burden to establish that the error was harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) (holding that harmless error is found only when there is no reasonable possibility that the error contributed to verdict).

Reversed and remanded for a new trial.

SALCINES and VILLANTI, JJ., Concur.

Courtesy of David Edelstein

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JAMES W. MENEFEE, JR., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-2590

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 

 

April 25, 2008, Opinion Filed

 

 

PRIOR HISTORY:    [*1] 

Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

 

COUNSEL:   Wm. J. Sheppard and D. Gray Thomas, of Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   MONACO, J. PLEUS and COHEN, JJ., concur.

OPINION BY:   MONACO

OPINION  

MONACO, J.

In this appeal from a judgment and sentence for commission of the offense of misdemeanor stalking, the appellant, James W. Menefee, Jr., asserts that he was erroneously convicted because the method by which he chose to stalk was with his ham radio. More specifically, he contends that the federal government has preempted the field of regulation of ham radio operations, and that the State is without jurisdiction to prosecute him because the Federal Communications Commission (“FCC”) already regulates amateur radio operators and their transmissions. We conclude, however, that the field has not been so completely preempted by the federal authorities as to preclude a conviction of Mr. Menefee for his harassing and threatening conduct, and we, therefore, affirm.

Mr. Menefee was charged by amended information with aggravated stalking with  [*2]  credible threat in violation of section 784.048(3), Florida Statutes (2004). Mr. Menefee and the victim, Salvatore Viglione, both Florida residents, are licensed by the FCC as amateur radio operators. Mr. Menefee argued in a pretrial motion to dismiss that because the channel of communication used to harass Mr. Viglione is regulated by the federal government, the State is preempted from punishing him for the threatening comments he made on those airwaves. The trial court denied the motion, and the case proceeded to trial.

The State presented evidence that Mr. Menefee had for many days repeatedly threatened to kill Mr. Viglione over the radio airwaves, indicating, for example, that he intended to put a bullet between his eyes the next time he saw him. Among many other things, he also made utterly crude comments about the victim’s wife and daughter, and broadcast that Mr. Viglione was a convict and suffered from AIDS. Mr. Viglione testified that he was emotionally distressed as a result of Mr. Menefee’s conduct, and that he believed that the threats were credible. A jury, however, found Mr. Menefee guilty of the lesser included offense of misdemeanor stalking, and this appeal ensued.

Mr.  [*3]  Menefee argues that communications made by way of a licensed amateur radio operation are exclusively regulated by federal law, and that the State is, accordingly, precluded by the Supremacy Clause of the United States Constitution, n1 from regulating matters related to such ham radio broadcasts and their content. He therefore contends that the trial court erred in denying his motion to dismiss. While Mr. Menefee’s argument is intriguing, it misses the point. In prosecuting him the State was not seeking to regulate the air waves, rather it was seeking to punish him for his criminal conduct. n2

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Article VI, Clause 2.2

We are aware of People v. Vogler, 90 Misc. 2d 709, 395 N.Y.S.2d 881 (N.Y. Town Ct. 1977), which involved an attempt by the state to regulate the use of obscenity by a person broadcasting with a Citizen’s Band radio. While this case is distinguishable because obscenity transmissions are specifically controlled by the Federal Communications Act, we disagree in any event with the analysis and conclusions of the case.
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Under the Supremacy Clause, federal law may expressly or impliedly preempt state law in a given subject area. State v. Harden, 938 So. 2d 480, 485-86 (Fla. 2006), cert. denied, 127 S.Ct. 2097, 167 L. Ed. 2d 812 (2007);  [*4]  State v. Stepansky, 761 So. 2d 1027, 1030-31 (Fla.), cert. denied, 531 U.S. 959, 121 S. Ct. 385, 148 L. Ed. 2d 297 (2000). A state, accordingly, is not permitted to assert jurisdiction where Congress clearly intended to preempt a particular field of law. Harden, 938 So. 2d at 486; see Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S. Ct. 1124, 67 L. Ed. 2d 258 (1981). In this connection the United States Supreme Court has recognized three specific types of preemption: (1) express preemption; (2) implied field preemption; and (3) implied conflict preemption. Id.

Express preemption occurs when Congress has signaled its intent to preempt state law by using language in the federal statute that explicitly preempts state regulation. Id. (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992)); Hughes v. Attorney Gen. of Fla., 377 F.3d 1258, 1265 (11th Cir. 2004). Even if there is no unequivocal language, however, state legislation in a subject area may still be preempted by implied field preemption if “[the] scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982)  [*5]  (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947)). See also English v. Gen. Elec. Co., 496 U.S. 72, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990). Finally, a state regulation is preempted by an implied federal conflict where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000); Felder v. Casey, 487 U.S. 131, 138, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988); Perez v. Campbell, 402 U.S. 637, 649, 91 S. Ct. 1704, 29 L. Ed. 2d 233 (1971); Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941).

When conducting a preemption analysis in an area traditionally and ordinarily regulated by the states, there is a presumption against preemption that should be applied. Hughes v. State, 943 So. 2d 176, 185 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007); see also Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947) (asserting that when Congress legislates in a field that the states have traditionally occupied, the court “start[s] with the assumption that the historic police powers of the  [*6]  States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress”) (citation omitted). The United States Supreme Court has observed in this regard that “the States under our federal system have the principal responsibility for defining and prosecuting crimes.” Stepansky, 761 So. 2d at 1030-31 (quoting Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959)); see also United States v. Lopez, 514 U.S. 549, 561, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). It is clear that the criminal law is an area traditionally regulated by the states, and that stalking is codified in Florida as a criminal offense. Thus, if Mr. Meneffe is to succeed, he must overcome the presumption against preemption of this state criminal-control activity. Id.; Air Line Pilots Ass’n, Int’l v. UAL Corp., 874 F.2d 439 (7th Cir. 1989); State v. Klinakis, 206 Ga. App. 318, 425 S.E.2d 665, 669 (Ga. App. 1992).

As Mr. Menefee frankly acknowledges, neither the Federal Communications Act, nor the regulations implementing that legislation contain a provision expressly preempting the states from punishing those who use the radio airways to criminally harass a victim. Since express preemption is not argued, we turn now to a consideration of implied  [*7]  preemption.

The first determination we must make in this connection is whether the federal regulations governing ham radios are “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Harden, 938 So. 2d at 486. We begin by noting that so-called “implied field preemption” should not be inferred “simply because [an] agency’s regulations are comprehensive.” Hughes, 943 So. 2d at 186 (quoting R.J. Reynolds Tobacco Co. v. Durham County, N.C., 479 U.S. 130, 149, 107 S. Ct. 499, 93 L. Ed. 2d 449 (1986)).

As the “ultimate task in any pre-emption case is to determine whether state regulation is consistent with the structure and purpose of the statute as a whole,” we begin our consideration of implied field preemption by examining the object and policy underlying the Federal Communications Act. Gade, 505 U.S. at 98. The Act at 47 USC § 152 (1996), indicates that it governs:

[A]ll interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received within the United States, and to all persons engaged within the United States in such communication or such transmission of energy by radio, and  [*8]  to the licensing and regulating of all radio stations as hereinafter provided….In order to effectuate the Act, Congress created the FCC:

For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States… for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication….47 USC § 151 (1996).

In accordance with this grant of authority the FCC forbids amateur radio operators to transmit “communications intended to facilitate a criminal act… [and] obscene or indecent words or language.” 47 CFR § 97.113. Additionally, Congress has through statute prohibited the use of obscene, indecent, or profane language by means of radio communication. 18 USCA § 1464 (1994). The FCC, however, does not have free range to regulate such language, but can  [*9]  only do so “in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.” Id. For example, the United States Supreme Court has found an adequate compelling interest for such regulation in the government’s desire to protect children from indecent material in light of radio’s unique pervasiveness and accessibility to them. Action for Children’s Television v. F.C.C., 313 U.S. App. D.C. 94, 58 F.3d 654 (D.C. Cir. 1995) (citing F.C.C. v. Pacifica Found., 438 U.S. 726, 750-51, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978)). While the regulations prohibit ham transmissions of this language, and authorize the FCC to enforce its authority by fine, license forfeiture and other means, there is nothing contained within the Act or its implementing regulations that suggests that states may not take action to charge a ham radio operator criminally for conduct that would constitute a crime. The State, by implementing its criminal law, is not “regulating” the transmission, as such. It does not prohibit, monitor or block the transmission. Rather, it effects its presumptive right to enforce criminal laws if they are broken by means of the transmission; a right that does not otherwise interfere or conflict  [*10]  with the authority of the FCC to regulate ham operators.

In examining other cases that deal with the regulation of ham radio stations, we note that the states have been authorized to some extent to regulate the height of ham radio antennas. See, e.g., Pentel v. City of Mendota Heights, 13 F.3d 1261 (8th Cir. 1994); Marchand v. Town of Hudson, 147 N.H. 380, 788 A.2d 250 (N.H. 2001). See also Dispoto v. Marion County, 969 So. 2d 423 (Fla. 5th DCA 2007). In fact, the FCC has adopted a ruling that requires state and local governments only to afford “appropriate” recognition to federal interests in order to avoid “unnecessary” conflicts with FCC policy. In re Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952 (1985). Thus it is clear that the federal statute and regulations do not entirely preempt the ham radio transmission field because states may to some extent control station antennas. We conclude, therefore, that neither the Congress, nor the FCC impliedly intended to preempt the entire field of ham radio operation. There is room for the states to operate, so long as they recognize and give precedence to federal interests, particularly in view  [*11]  of the fact that the states have historically been responsible for the enforcement of their own criminal laws.

We turn now to the policy and object of the state statute that Mr. Menefee was convicted of violating to determine whether enforcement of it violates the doctrines of implied conflict preemption. Section 784.048, Florida Statutes, was enacted “to protect victims, their families and friends from the needless torment” caused by the “knowing and willful course of conduct by any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear of death or great bodily injury… .” 1992 Fl. ALS 208; 1992 Fla. Laws ch. 208; 1992 Fla. HB 97. More specifically, section 784.048(3), Florida Statutes (2004), provides that:

Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person’s child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree, punishable  [*12]  as provided in s. 775.082, s. 775.083, or s. 775.084.”Harass” is defined as “means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(1)(a), Fla. Stat. (2004). Additionally, a “credible threat” is “a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.” See § 784.048(1)(c), Fla. Stat. (2004). Thus, the statute in question was enacted to protect victims from intentional threatening conduct that causes substantial emotional distress in the form of a reasonable fear for one’s safety.

Mr. Menefee was charged and convicted for his criminal conduct in using ham radio transmissions as the tool for his crime. He could have chosen to use a telephone to do so, even though that medium is regulated by the FCC. He could have used letters to do so, even though the mail is regulated by the United States Postal Service. For that matter, he could have used a banner plane to stalk and threaten Mr. Viglione, even though that medium is  [*13]  regulated by the Federal Aviation Administration. By charging Mr. Menefee criminally, there simply was no regulation by Florida of ham radio operators. As we have been unable to find any language within the Federal Communications Act suggesting an implied conflict preemption of this criminal aspect of the use of ham radios, we cannot conclude that the trial court erred in denying the motion to dismiss.

Moreover, to hold otherwise would allow a gaping hole in the authority of the State to prohibit stalking and related offenses. Virtually all means of communication are to some extent controlled by the federal government. It seems clear that Congress would not have forbidden the states to prosecute crimes that were in some way accommodated by a regulated means of communication.

Accordingly, we affirm the judgment and sentence.

AFFIRMED.

PLEUS and COHEN, JJ., concur.

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STATE OF FLORIDA, Appellant, v. NGO LANH NGUYEN, Appellee.

Case Nos. 5D07-2163 and 5D07-2181

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 

 

April 25, 2008, Opinion Filed

 

 

PRIOR HISTORY:    [*1] 

Appeal from the Circuit Court for Orange County, Tim Shea, Judge.

 

COUNSEL:   Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.

Charles E. Willits, Orlando, for Appellee.

JUDGES:   PALMER, C.J. PLEUS and EVANDER, JJ., concur.

OPINION BY:   PALMER

OPINION  

PALMER, C.J.,

In this consolidated appeal, the State appeals the trial court’s orders dismissing Count I of two separate informations. We reverse. n1

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

Jurisdiction is proper pursuant to rule 9.140(c)(1)(A) of the Florida Rules of Appellate Procedure.
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The State filed two separate cases against Ngo Lanh Nguyen (defendant), an instructor at a martial arts fitness center. The victims alleged that, in addition to offering instructions in martial arts, the defendant offered “energy sessions” which were, in reality, massage sessions. The victims further alleged that the defendant acted improperly during these massage sessions. In each case, the defendant was charged with the felony of practicing a health care profession without a license in violation of section 456.065(2)(d)1 of the Florida Statutes (2005), and the misdemeanor of holding oneself out as a massage therapist without a license, in violation of section 480.047(1)(a) of the Florida Statutes  [*2]  (2005). In each information, Count I alleged the felony charge, while Count II alleged the misdemeanor charge.

The defendant moved to dismiss Count I in each case, arguing that the specific misdemeanor statute governing massage therapists controlled over the more general felony statute covering health care professionals. The trial court agreed and, therefore, granted the defendant’s dismissal motions. The State timely appealed. The appeals have been consolidated.

The State argues that the trial court erred in dismissing the felony counts because section 456.065(2)(d) of the Florida Statutes is unambiguous and expressly authorizes the State to prosecute an individual under both Chapter 456 and Chapter 480 of the Florida Statutes. We agree.

Under Chapter 456 of the Florida Statutes, which governs health professions and occupations, section 456.001(4) provides:

456.001. Definitions

As used in this chapter, the term:

***

(4) “Health care practitioner” means any person licensed under … chapter 480 [massage practice]…§456.001(4), Fla. Stat. (2005). Section 456.065(2)(d)1. of the Florida Statutes provides:

456.065. Unlicensed practice of a health care profession; intent; cease and desist notice;  [*3]  penalties; enforcement; citations; fees; allocation and disposition of moneys collected

***

(2) The penalties for unlicensed practice of a health care profession shall include the following:

***

(d) In addition to the administrative and civil remedies under paragraphs (b) and (c) and in addition to the criminal violations and penalties listed in the individual health care practice acts:

1. It is a felony of the third degree, punishable as provided in s. 775 .082, s. 775.083, or s. 775.084, to practice, attempt to practice, or offer to practice a health care profession without an active, valid Florida license to practice that profession. …§456.065 (2)(d)1., Fla. Stat. (2005)(emphasis added).

Under Chapter 480 of the Florida Statutes, which specifically governs massage practices, section 480.047(1)(a)&(2) provides:

480.047. Penalties

(1) It is unlawful for any person to:

(a) Hold himself or herself out as a massage therapist or to practice massage unless duly licensed under this chapter or unless otherwise specifically exempted from licensure under this chapter.

***

(2) Any person violating the provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in  [*4]  s. 775.082 or s. 775.083.§480.047(1)(a)&(2), Fla. Stat. (2005)(emphasis added).

Chapter 456 expressly authorizes punishment for the practice of a health care profession without a license in addition to the specific punishments meted out by the statute governing massage therapy. The plain language of section 456.065(2)(d)1. authorizes the State to charge an individual under that statute “in addition” to charging the individual under section 480.047. As such, the defendant was properly charged under both statutes. See State v. Hobbs, 974 So.2d 1119 (Fla. 5th DCA 2008)(holding court’s first consideration in interpreting a statute is to give effect to the intent of the Legislature as evidenced by the plain meaning of the text).

In closing, we note that a statute which authorizes prosecution of a particular criminal act as a felony is not rendered unconstitutional, as applied, even though that criminal act may also constitute a misdemeanor. State v. Cogswell, 521 So. 2d 1081 (Fla. 1988). As stated by the United States Supreme Court in United States v. Batchelder, 442 U.S. 114, 125, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979):

[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether  [*5]  to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. . . . The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.

Accordingly, we reverse the trial court’s dismissal orders and remand for reinstatement of Count I on each information.

REVERSED and REMANDED.

PLEUS and EVANDER, JJ., concur.

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TANYA McGLADE, Appellant, v. STATE OF FLORIDA, Appellee. LINDA McGLADE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-2936, Case No. 2D06-2943 CONSOLIDATED

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 

 

April 25, 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 Manatee County; Edward Nicholas, Judge.
McGlade v. State, 941 So. 2d 1185, 2006 Fla. App. LEXIS 17633 (Fla. Dist. Ct. App. 2d Dist., 2006)

 

COUNSEL:   James Marion Moorman, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellants.

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

JUDGES:   NORTHCUTT, Chief Judge. SALCINES and DAVIS, JJ., Concur.

OPINION BY:   NORTHCUTT

OPINION  

NORTHCUTT, Chief Judge.

The State accused Tanya McGlade and Linda McGlade of practicing midwifery without a license following the death of a relative after the home birth of her child. See § 467.201, Fla. Stat. (2004). A jury convicted them of the charge. The McGlades raise several issues on appeal, but we find merit only in their assertion that the jury instruction defining the charged crime was inaccurate. This error compels us to reverse their convictions and sentences and to remand for a new trial.

Section 467.201(1) provides that “[p]racticing midwifery, unless holding an active license to do so,” constitutes a third-degree felony. Midwifery is defined in section 467.003(8):

(8) “Midwifery” means the practice of supervising the conduct of a normal labor and childbirth, with the informed consent of the parent;  [*2]  the practice of advising the parents as to the progress of the childbirth; and the practice of rendering prenatal and postpartal care.(Emphasis supplied.) Thus the statute contemplates that the practice of midwifery comprises three necessary components: supervising labor and childbirth, advising as to the progress of childbirth, and rendering prenatal and postpartal care.

No standard jury instruction has been promulgated for this crime. Over the McGlades’ objection, the trial court instructed the jurors as follows:

[T]he State must prove . . . the Defendant did engage in the practice of supervising the conduct of normal labor and child birth, with the informed consent of Mara McGlade, and/or did advise Mara McGlade as to the progress of the childbirth, and/or did render prenatal or postpartal care of Mara McGlade.(Emphasis supplied.)

In the absence of a standard jury instruction, the trial court clearly attempted to craft a proper instruction by employing the statutory language. But the statute is written in the conjunctive; the instruction was in the disjunctive. See Patterson v. Union Corr. Inst., 697 So. 2d 993 (Fla. 1st DCA 1997) (stating that the use of the word “and” clearly indicates  [*3]  that all of the enumerated provisions must be satisfied). The instruction as given may have misled the jurors to believe that it was unnecessary for them to decide whether the McGlades engaged in all three components of the practice. Cf. Small v. State, 889 So. 2d 862, 864 (Fla. 1st DCA 2004) (reversing for a new trial where the instruction for battery on a pregnant woman did not require the jurors to determine whether the victim was pregnant and noting that the jurors likely would have believed that they did not have to decide this element of the crime). As instructed, then, the jury was permitted to convict the McGlades if it found that they engaged in only one component of midwifery.

A defendant is entitled to have the jury correctly and intelligently instructed on the essential and material elements of the crime with which she is charged. Chicone v. State, 684 So. 2d 736, 745 (Fla. 1996); Walters v. State, 710 So. 2d 606, 607 (Fla. 2d DCA 1998). The State maintains that we should affirm on this issue because, it contends, it presented sufficient evidence of all three components of the practice of midwifery. But it is beyond our purview to find facts based on the evidence; that is  [*4]  the duty of the jury before whom the evidence is presented. Manifestly, in order to properly decide the question of guilt based on its factual determinations, the jury must be correctly instructed on the elements of the crime charged. It cannot be harmless error when the court fails to do so, particularly when the defendant objects to the instruction. See Scott v. State, 808 So. 2d 166, 170-71 (Fla. 2002).

Two of the McGlades’ other issues relate to alleged errors during the trial that were not preserved for appellate review. These purported errors were not fundamental, and so we will not discuss them other than to observe that the McGlades may attempt to rectify them on retrial.

We reject the McGlades’ assertion that they were entitled to a jury instruction on the defense that they were engaging in the free exercise of their religion. Although the McGlades offered proof that their involvement in the home birth was substantially motivated by their religious beliefs, they offered no evidence to demonstrate that the midwifery licensure law substantially burdened the exercise of their religion. See § 761.03, Fla. Stat. (2004). Therefore, we affirm on that point.

Reversed and remanded for  [*5]  a new trial.

SALCINES and DAVIS, JJ., Concur.

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RANDOLPH WIGHTMAN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5055

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 

 

April 25, 2008, Opinion Filed

NOTICE:  

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

 

PRIOR HISTORY:    [*1] 

Appeal from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge.

 

COUNSEL:   James Marion Moorman, Public Defender, and James T. Miller, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   FULMER, Judge. NORTHCUTT, C.J., and WHATLEY, J., Concur.

OPINION BY:   FULMER

OPINION  

FULMER, Judge.

Randolph Wightman appeals his convictions for two counts of sexual battery on a child under twelve, for which he received concurrent life terms. Because the trial court erred in allowing the State to introduce evidence of multiple acts of uncharged crimes, we reverse for a new trial. n1

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

Our reversal renders moot the second issue raised on appeal pertaining to the victim’s identification of Wightman, for which Wightman also seeks a new trial. We therefore do not address it.
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The State charged Wightman in a two-count information with sexual battery occurring between the five-year time span of October 1984 and July 1989. Count one alleged penetration of and/or union with the vagina of R.B. by the mouth of Wightman. Count two alleged penetration of and/or union with the penis of Wightman by the mouth of R.B.  [*2]  At the time of trial in 2006, the victim was twenty-six years old.

When the first witness, the victim, R.B., testified, she indicated that it was difficult for her to remember things and she could not remember dates or times from when she was seven, eight, and nine years old. The defense objected to a general question by the prosecutor about Wightman becoming sexually abusive (“when you say he became sexually abusive, what specifically do you mean by that?”), arguing that the question was too general and “she may be getting into some collateral acts.” The defense counsel suggested the prosecutor could lead the witness “and go to the two acts that are alleged.” The prosecutor agreed to do that. The prosecutor then asked the victim if she could recall how many times Wightman “had you put your mouth on his penis.” The victim indicated she could not recall, prompting the prosecutor to ask, “More than a handful?” The defense then moved for mistrial, which was argued at the bench.

During the discussion on the motion, the defense pointed out that the State had not filed a notice of intent to rely on Williams rule evidence. n2 The prosecutor asserted that the State had charged “representative  [*3]  counts,” and claimed the defense has “known all along there are no specific dates and times.” The defense argued: “At this point she has testified to collateral acts and I don’t know under what authority she can . . . elicit testimony about collateral acts. There’s one specific act that is charged.” The prosecutor countered: “Again, they’re on notice of these incidents as one representative count. [The victim] can’t give a specific date and time; she can say it happened multiple times. That gives the act.”

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

See Williams v. State, 110 So. 2d 654 (Fla. 1959). The State did not file a Williams rule notice. The record does not reflect that any pretrial motions were filed, nor does it show a defense request for a statement of particulars.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

The court denied the motion, and the victim testified in general terms to molestation by oral sex that occurred repeatedly. Only one specific incident was recounted by both the victim and her mother. The victim and her mother gave conflicting accounts of what occurred during that incident. n3

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

The victim testified that Wightman was performing oral sex on her when her Mother walked in the room. When the victim was impeached with her prior inconsistent statements  [*4]  about that incident, having previously said at a deposition that she was giving him oral sex, she stated: “Well, I don’t recall. I was seven.” The mother testified that she saw Wightman laying on the bed and R.B. was kneeling beside him “sucking on his penis.”
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

On appeal, the State does not attempt to defend the prosecutor’s position at trial that the allegations were “representative counts,” and that general testimony of repeated abuse was permitted to prove the two counts alleged. Instead, the State advances two arguments that were not made below to justify the victim’s general testimony of numerous abusive acts.

First, the State argues that the evidence of uncharged crimes was not Williams rule evidence because it was relevant as inextricably intertwined evidence. We reject this justification because this case does not present a situation where “inextricably intertwined” evidence of uncharged acts is necessary to describe the crime charged. Cf. Griffin v. State, 639 So. 2d 966, 968-69 (Fla. 1994) (discussing why other-crime evidence was inextricably intertwined and thus relevant as an inseparable part of the act which was in issue). Here, the assertion that Wightman committed the similar  [*5]  acts of molestation multiple times on different undetermined dates was not necessary for an understanding that the two discrete acts charged in the information took place at any time.

The State next argues that the evidence was admissible under section 90.404(2)(b)(1), Florida Statutes (2006). This section expressly makes admissible other crimes or acts of child molestation. But in order to invoke this section at trial, the State was required to give the defendant ten days before trial “a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information.” § 90.404(2)(c)(1). And, any collateral crime evidence admitted under section 90.404(2)(b) is subject to a section 90.403 analysis for the danger of unfair prejudice. See McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006) (discussing the trial court’s responsibilities when admitting evidence of prior acts of molestation when offered to corroborate the victim’s testimony). Because Wightman was not given the pretrial notice and the other due process safeguards discussed in McLean were not employed, the State cannot invoke section 90.404(2)(b) to justify the admission  [*6]  of other-crime evidence in this case.

Accordingly, we reverse Wightman’s convictions because the trial court erred in allowing the victim to testify to general allegations of repeated acts of abuse and it appears that this error contributed to the verdict.

Reversed and remanded for a new trial.

NORTHCUTT, C.J., and WHATLEY, J., Concur.

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QUENTEN WALDEN, Petitioner, v. STATE OF FLORIDA, Respondent.

No. 4D08-1400

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

 

April 25, 2008, Decided

 

 

 

PRIOR HISTORY:    [*1] 

Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael G. Kaplan, Judge; L.T. Case No. 07-24232CF10A.

 

COUNSEL:   Sandra E. Mullgrav, Fort Lauderdale, for petitioner.

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

JUDGES:   STONE, KLEIN and GROSS, JJ., concur.

 

OPINION  

PER CURIAM.

Quenten Walden has filed a writ of prohibition seeking to prevent his criminal prosecution set for trial on May 15, 2008. We grant the petition on the authority of State v. Williams, 791 So. 2d 1088 (Fla. 2001).

After a July 13, 2006 fight involving rival neighborhoods, Walden was arrested for the attempted murder of Justin Matthews on July 19, 2006. The state filed an information charging Walden with attempted first degree murder on August 8, 2006. Walden waived speedy trial in the Matthews case and that case is not involved in this proceeding.

On September 6, 2006, while in custody on the Matthews case, Walden was arrested for the murder of Sherrod Smith. The murder occurred during the same July 13 criminal episode. By indictment, Walden was charged with the Smith murder on December 19, 2007.

On February  [*2]  12, 2008, Walden moved for discharge in the Smith murder case, arguing that the State had violated his right to speedy trial by failing to file charges against him within 175 days of his arrest. The state replied that Walden should have filed a notice of expiration of speedy trial and petitioned the court for a recapture period. See Fla. R. Crim. P. 3.191(p). The state argued that Walden knew that the state intended to file formal charges based on information provided in the Matthews case. The trial court agreed with the state, finding that Walden was required to file a notice of expiration of speedy trial, thus triggering the State’s obligation to bring him to trial during the recapture period.

Prohibition lies to review a trial court’s denial of a motion for discharge on speedy trial grounds. See, e.g., Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), rev. dismissed, 928 So. 2d 1176 (Fla. 2006).

The waiver of speedy trial in Matthews case has no effect on this case. Even though the two crimes arose from the same fight, distinct acts against different victims constitute separate crimes for the purpose of the speedy trial rule. See Clevenger v. State, 967 So. 2d 1039, 1041 (Fla. 5th DCA 2007);  [*3]  State v. Brandt, 460 So. 2d 444, 446 (Fla. 5th DCA 1984).

Rule 3.191(a) requires a defendant to be brought to trial within 175 days of his arrest for a felony offense. Here, the state filed formal charges over 290 days after the speedy trial time had expired. The state filed no motion to extend the speedy trial period. See Fla. R. Crim. P. 3.191(i) & (l).

This case is on all fours with Williams. There the state filed an information against a defendant 206 days after his arrest. 791 So. 2d at 1089. The defendant moved for discharge for violation of her speedy trial rights. The trial court treated the motion as a notice of expiration of speedy trial and set the case for trial within ten days. Id. The second district granted the defendant’s writ of prohibition, quashed the trial court’s order, and remanded the case for discharge.

Answering a certified question, the supreme court held that rule 3.191 should not be construed to allow the state to “effectively toll the running of the speedy trial period by allowing it to expire prior to filing of formal charges.” Id. The supreme court ruled that where the state did not file criminal charges until after the 175 day speedy trial period had expired,  [*4]  the state was not entitled to the rule 3.191(p) recapture period. Id. at 1091.

Walden is in the same position as the defendant in Williams. The state filed no charges in the Smith case until after the 175 day speedy trial time had expired. Williams requires that the petition for writ of prohibition be granted.

We distinguish State v. McCullers, 932 So. 2d 373 (Fla. 2d DCA 2006), the case relied upon by the circuit court. There a defendant was charged during the 175 day speedy trial period but arraigned afterwards. Id. at 376. The second district held that the state was entitled to the 10 day recapture period after the defendant moved for discharge. Id. The second district distinguished Williams as a case where the state’s failure to “file charges prior to the expiration of the speedy trial period made it impossible for the defendant to file a notice of expiration pursuant to rule 3.191(p)(2). . . .” Id. at 375. Here, the state’s filing of the information after the expiration of the speedy trial period takes this case out of the rule of McCullers and places it under the ambit of Williams.

We have considered the state’s citation to State v. Pfeiffer, 872 So. 2d 313 (Fla. 4th DCA 2004),  [*5]  but find it inapplicable, because that case involved a refiling of charges that had been timely filed. We observed that such a case was different than Williams, because the case was in existence at the time speedy trial expired, so it was not a situation where the failure to file charges served to “deprive the defendant of the opportunity to file a notice of expiration of speedy trial and avail himself of the rule’s protection.” Id. at 316.

We grant the petition for writ of prohibition, quash the trial court’s order of March 24, 2008, and remand the case for discharge.

STONE, KLEIN and GROSS, JJ., concur.

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MICHAEL L. BEIL, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-4019

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 

 

April 25, 2008, Opinion Filed

 

 

PRIOR HISTORY:    [*1] 

3.800 Appeal from the Circuit Court for Seminole County, O.H. Eaton, Jr., Judge.

 

COUNSEL:   Michael L. Beil, Gainesville, Pro se.

No Appearance for Appellee.

JUDGES:   MONACO, J. PALMER, C.J. and EVANDER, J., concur.

OPINION BY:   MONACO

OPINION  

MONACO, J.

Michael L. Beil seeks review of the summary denial of the motion for jail credit filed by him pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. We affirm for two reasons.

First, a criminal defendant is not entitled to jail credit for time spent in jail in another county while subject to a detainer on an unrelated charge. See Gethers v. State, 838 So. 2d 504 (Fla. 2003). Here, Mr. Beil asserts that he is entitled to additional jail credit for time spent in the Lake County jail because a detainer was lodged against him by Seminole County. The Seminole County charges are the foundation for the conviction and appeal that are the basis of the present case. As he was in the Lake County jail on charges unrelated to those filed by Seminole County, he is clearly not entitled to the additional credit.

Second, Mr. Beil entered into a plea bargain, part of which specifically included an agreed amount of jail credit. He was thereafter sentenced in accordance with that agreement.  [*2]  Because he waived his right to additional jail credit, as he was most certainly entitled to do, he cannot now claim it. See White v. State, 656 So. 2d 255 (Fla. 3d DCA 1995); Prangler v. State, 470 So. 2d 105 (Fla. 2d DCA 1985).

Accordingly, we affirm.

AFFIRMED.

PALMER, C.J. and EVANDER, J., concur.

Courtesy of David Edelstein

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