Florida Criminal Law Opinions

JEREMY COWELL PEER, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-6065

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

April 30, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1] 

An appeal from the Circuit Court for Bay County. Dedee S. Costello, Judge.

COUNSEL:   Nancy A. Daniels, Public Defender, and John B. Kelly, III, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., CONCUR.

OPINION  

PER CURIAM.

The appellant, Jeremy Peer, was convicted of two offenses relating to a motor vehicle accident and sentenced to 12 years in prison. We reverse and vacate the appellant’s conviction for leaving the scene of an accident causing injury, and reverse and remand for resentencing.

On April 17, 2005, the appellant was involved in an accident resulting in the death of Colleen Martin and injury to Monty Martin. He was charged with one count of leaving the scene of an accident causing death, Count I, and one count of leaving the scene of an accident causing injury, Count II. Subsequently, the trial court convicted the appellant on both charges, his first felony offense. Without ordering a pre-sentence investigation (PSI), the trial court sentenced the appellant to 12 years in prison as to Count I only.

Although the trial court sentenced the  [*2]  appellant only on Count I, we find that a conviction on both counts violates double jeopardy. Multiple convictions for separate crimes during a single episode are permissible only when each offense contains an element which the other does not. Multiple convictions are not authorized when (1) the offenses require identical elements of proof; (2) the offenses are degrees of the same crime; or (3) one of the offenses is a lesser-included offense of the other. See State v. Florida, 894 So. 2d 941, 945 (Fla. 2005). The offenses charged in Counts I and II are different degrees of the same crime and are described almost identically except for the harm caused to the victim. See §§ 316.027(1)(a) (b), Fla. Stat. (2005); Hardy v. State, 705 So. 2d 979, 980 (Fla. 4th DCA 1998). Thus, the appellant’s convictions were unauthorized and violated double jeopardy.

The trial court also sentenced the appellant to 12 years in prison on Count I without first ordering a PSI. Florida Rule of Criminal Procedure 3.710(a) provides that:

no sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years,  [*3]  until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.Rule 3.710(a) clearly mandates that the trial court first order a PSI before sentencing a first felony offender to more than probation. Because the appellant was sentenced to more than probation on his first felony conviction, rule 3.710 required the trial court to order a PSI. Thus, the trial court erred when it sentenced the appellant without first ordering a PSI.

Accordingly, we vacate the appellant’s conviction for leaving the scene of an accident causing injury, and reverse and remand to the trial court for resentencing on Count I, leaving the scene of an accident causing death, after the preparation and consideration of a PSI.

REVERSED and REMANDED.

BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., CONCUR.

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ISRAEL VIERRA, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-2159

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 pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court Hillsborough County; Manuel A. Lopez, Judge.

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

OPINION BY:   CASANUEVA

OPINION  

CASANUEVA, Judge.

Israel Vierra appeals the summary dismissal of his petition for writ of habeas corpus filed in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County. We reverse and remand for further proceedings.

In his petition, Mr. Vierra claimed that he was eligible for immediate release from his imprisonment at Zephyrhills Correctional Institution because the Florida Department of Corrections had improperly calculated his gain time. The circuit court summarily dismissed the petition because Mr. Vierra had not sufficiently demonstrated he had exhausted all administrative remedies. The circuit court also cited Bush v. State, 945 So. 2d 1207 (Fla. 2006), and ruled that if Mr. Vierra chose to refile his petition after exhausting all administrative remedies he should do so in Leon County.

We conclude that the court erred by failing to first consider whether the petition was properly filed in Hillsborough County. “[A] habeas petition filed in circuit court alleging entitlement to immediate  [*2]  release ’shall be filed with the clerk of the circuit court of the county in which the prisoner is detained.’” Bush, 945 So. 2d at 1213 n. 11 (quoting § 79.09, Fla. Stat. (2005)). Because Mr. Vierra was incarcerated in Pasco County the Hillsborough County court should have transferred the petition to the circuit court in Pasco County without consideration of the petition’s facial sufficiency or its merits. Moreover, pursuant to Bush and section 79.09, the court erred in directing Mr. Vierra to refile his petition if he chose in Leon County.

Accordingly, we reverse the order dismissing the petition and remand with directions to the circuit court to transfer the proceeding to the circuit court for the county in which Mr. Vierra is currently incarcerated.

Reversed and remanded for further proceedings.

SILBERMAN and KELLY, JJ., Concur.

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Rafael Perez, Appellant, vs. The State of Florida, Appellee.

No. 3D07-495

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, William Thomas, Judge. Lower Tribunal No. 06-41670.

COUNSEL:   Rafael Perez, in proper person.

Bill McCollum, Attorney General, and Richard L. Polin, Criminal Appeals Bureau Chief, for appellee.

JUDGES:   Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.

OPINION  

PER CURIAM.

Rafael Perez (”Perez”) appeals the denial of his petition for writ of mandamus. We reverse.

It is well settled that an official court reporter has a duty to transcribe court proceedings upon a request and an offer of payment. Turner v. State, 100 Fla. 1078, 130 So. 617, 618 (Fla. 1930). If the court reporter fails to transcribe the proceedings upon the request and offer, mandamus lies to compel the court reporter to perform this duty. State ex. rel. Brown v. Dewell, 123 Fla. 785, 167 So. 687 (Fla. 1936).

Additionally, upon receiving a petition for writ of mandamus, a trial court must first determine whether the petition is facially sufficient. If the petition is facially sufficient, the trial court must then require the respondent to show cause why the writ should not be issued. If the petition and response raise disputed factual issues, the trial court should resolve them upon proper evidence, which may include undisputed  [*2]  affidavits. Radford v. Brock, 914 So. 2d 1066, 1067 (Fla. 2d DCA 2005).

Here, Perez’ petition for writ of mandamus alleges sufficient grounds for mandamus. The petition alleges that Perez requested the court reporter to notify him of the cost for transcribing his sentencing hearing. Perez also alleges that the court reporter never responded. Faced with a legally sufficient petition, the trial court should have issued a rule to show cause to the court reporter.

Accordingly, we reverse the order summarily denying the petition for writ of mandamus, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

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ERIC PRINCE, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-2706

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 R. Levenson, Judge; L.T. Case No. 06-413 CF10A.

COUNSEL:   Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

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

OPINION BY:   POLEN

OPINION  

POLEN, J.

Appellant Eric Prince appeals the trial court’s denial of his motion for judgment of acquittal on the charge of grand theft auto and the trial court’s ruling on a discovery violation. We are unpersuaded by Prince’s argument regarding the discovery violation but find merit in the judgment of acquittal claim.

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. If, after viewing the evidence in a light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.Reynolds v. State, 934 So. 2d 1128, 1145 (Fla. 2006)  [*2]  (internal citations omitted). “In moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.’” Id. (quoting Beasley v. State, 774 So.2d 649, 657 (Fla.2000)).

Prince was accused of stealing a car from Ariel Munoz. Munoz was unable to identify Prince at the time the theft was committed or at trial. A few days after the car was stolen, Prince was arrested in connection with another crime. At the time of his arrest, Prince was a passenger in Munoz’s stolen car. The State charged Prince with grand theft auto under the theory that he knew or should have known the car was stolen. At trial, Prince denied stealing the vehicle or knowing it was stolen and the State did not introduce testimony identifying Prince as the person who stole the car.

We find the trial court erred in denying Prince’s motion for judgment of acquittal as to the charge of grand theft auto as the State failed to prove Prince was anything other than a passenger in the car. “Mere presence in a vehicle as an after acquired passenger, with knowledge that  [*3]  it has been stolen, is insufficient to convict for the charge of Grand Theft.” See State v. G.C., 572 So. 2d 1380 (Fla. 1991) (receded from on other grounds, I.T. v. State, 694 So. 2d 720 (Fla. 1997)). “[A] mere passenger in a vehicle-who has not exercised such possession, dominion, or control over the vehicle as to indicate an intent to participate in the “taking” of that vehicle-cannot be convicted of theft because there is insufficient proof of the specific criminal intent required by statute. G.C., 572 So. 2d at 1382.

We reverse Prince’s conviction as to the charge of grand theft auto and affirm on all other counts.

GROSS and MAY, JJ., concur.

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Vernon B. Porter, Appellant, vs. The State of Florida, Appellee.

No. 3D07-917

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 under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge. Lower Tribunal Nos. 00-19732; 00-27053.

COUNSEL:   Vernon B. Porter, in proper person.

Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.

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

OPINION  

PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

The defendant was charged with a single count of cocaine possession in case number 00-27053, and eight other counts, including attempted first degree murder, burglary, battery, and possession of a firearm by a violent career criminal in case number 00-19732. The defendant was placed on two years’ probation in both cases. In December 2001, the State filed affidavits of violation of probation in both cases, alleging the defendant violated his probation by committing three new criminal offenses: first degree murder, possession of a firearm by a convicted felon, and use or display of a firearm while committing a felony. After a hearing, the trial court entered orders revoking the defendant’s  [*2]  probation in both cases.

The defendant thereafter filed a rule 3.850 motion for post-conviction relief in the trial court. The trial court summarily denied the motion, and the defendant appealed. On February 1, 2006, this Court reversed the denial of the defendant’s motion without ordering the State to respond. We remanded the matter to the trial court and directed the trial court to “either summarily deny the motion and attach to its order those portions of the record which conclusively show that Porter is not entitled to relief, or it may conduct other appropriate proceedings and then rule on the motion”. Porter v. State, 920 So. 2d 1154, 1154 (Fla. 3d DCA 2006).

On February 22, 2006, the trial court denied the motion in an order setting forth its reasons, but did not include record attachments or citations. The defendant filed a motion for rehearing and this appeal.

In the defendant’s rule 3.850 motion, he raises seven claims, only one of which is legally sufficient. n1 It is the only claim that is not refuted by the record or the trial court’s order. In Ground Three of his motion, the defendant claims that he received ineffective assistance of trial counsel due to his attorney’s failure  [*3]  to properly investigate his alibi defense. Specifically, he alleges that counsel was ineffective for failing to investigate and secure hotel registration information, including hotel security videotapes, that would have corroborated the defendant’s alibi defense, which he presented through his testimony and the testimony of his witness, Lorenzo Wilson. This claim is not addressed in the trial court’s order.

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All of the defendant’s other claims are either legally insufficient or refuted by the defendant’s own appendix attached to his motion for post-conviction relief.
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Consequently, it appears that the defendant has raised a facially sufficient claim for rule 3.850 relief because the present record does not conclusively refute the defendant’s claim with respect to this point. Accordingly, we reverse and remand the case. On remand, if the trial court again enters an order denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting the defendant’s claim with respect to ground three of the defendant’s post-conviction motion. See Fla. R. App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that  [*4]  the defendant is entitled to no relief).

Reversed and remanded for further proceedings.

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