Florida Criminal Law Opinions

 

Justine Polite, Appellant,
v.
The State of Florida, Appellee. 

No. 3D06-1944.

 

District Court of Appeal of Florida, Third District.

 

Opinion filed May 28, 2008.

 

        An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge, Lower Tribunal No. 02-4527.

        Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

        Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorneys General, for appellee.

        Before COPE, GREEN, and RAMIREZ, JJ.

        RAMIREZ, J.

        Appellant seeks reversal of his plea and sentence. We reverse on the basis that defendant was affirmatively misadvised by his attorney and was therefore denied effective assistance of counsel.

Page 2

        Justine Polite entered a plea of no contest to charges of armed robbery, attempted carjacking, and violation of probation. The plea consisted of two years in state prison followed by two years of community control with the possibility of conversion to probation.

        During the plea colloquy, the trial court advised Polite of the potential punishments if found guilty of the pending charges. The court did not advise Polite of the maximum sentence if he violated the community control/probation imposed pursuant to the plea he was entering. Polite informed the trial court that he had thorough discussions with defense counsel, was satisfied with counsel’s representation, and was not promised anything different in order to induce him to take the plea.

        The trial court accepted the plea of no contest to the probation violation and the underlying charges. Polite was sentenced according to the plea as a youthful offender.

        Subsequently, Polite filed a motion for post-conviction relief claiming that his plea had not been entered knowingly and voluntarily. Polite claims denial of effective assistance of counsel because his attorney misadvised him as to the maximum sentence he could receive upon revocation of the community control/probation.

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        The trial court held an evidentiary hearing to examine the claim. The sole witness for the State was Polite’s trial counsel. Although the transcript of the evidentiary hearing was lost, Polite prepared a reconstructed record. The State did not object to the reconstructed record, and it was approved and settled by the trial court pursuant to Florida Rule of Appellate Procedure 9.200(b)(4).

        Trial counsel testified that he did not specifically remember advising Polite of the statutory maximum sentences for the charges he faced, but that it was his standard practice to advise all his clients of such details. Polite testified that trial counsel advised him that the maximum sentence he could receive was six years if he subsequently committed a technical or substantive violation of probation. Additionally, Polite stated he would have rejected the plea and gone to trial had he known the possible repercussions of a violation. The trial court denied the motion for post-conviction relief.

        The State contends that it presented competent substantial evidence to rebut Polite’s claim of ineffective assistance of counsel. Additionally, the State contends that if Polite’s statements are accepted as true, he is not entitled to relief as the possible sentence for a violation is a collateral matter. Polite asserts that he is entitled to relief because the State failed unequivocally to refute his claims of ineffective assistance of counsel. We agree with Polite and reverse.

Page 4

        First, the issue here is not a collateral consequence of the plea. The maximum penalty that could be imposed if community control/probation is violated is a direct consequence of the plea. Cruz v. State, 742 So. 2d 489 (Fla. 3d DCA 1999).

        As to the substantive claim, Strickland v. Washington, 466 U.S. 668 (1984), created a two-prong test for determining whether defense counsel provided constitutionally deficient assistance to a defendant.¹ The United States Supreme Court Hill v. Lockhart, 474 U.S. 52 (1985), applied the Strickland test to claims of ineffective assistance of counsel in pleading guilty to a crime. In Hill, the Supreme Court stated that in plea cases, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. 474 U.S. at 59.

        The State was unable unequivocally to refute Polite’s claim that his counsel misadvised him as to the greatest penalty he would face upon a violation of probation or that there was a reasonable probability that if Polite had this information he would not have accepted the plea. Polite therefore satisfies the Strickland and Hill standards.

Page 5

        When a defendant provides sufficient evidence in support of his claim of ineffective assistance of counsel, the burden shifts to the State to present competent substantial evidence which contradicts the defendant’s evidence. Williams v. State, 974 So. 2d 405 (Fla. 2d DCA 2007); Green v. State, 857 So. 2d 304 (Fla. 2d DCA 2003). Here, the State was unable to present conclusive evidence that Polite did not rely on defense counsel’s misadvise when entering into the negotiated plea.

        The Florida Supreme Court’s decision State v. Leroux, 689 So. 2d 235 (Fla. 1997), offers further guidance. Leroux establishes that “misrepresentations by counsel as to the length of a sentence . . . can be the basis for post-conviction relief in the form of leave to withdraw a guilty plea.” Id. At 236. Here, according to the reconstructed record, defense counsel affirmatively misadvised Polite as to the maximum sentence he would face upon a violation of probation, entitling Polite to withdraw his plea.

        Polite’s testimony, coupled with the transcript of the plea colloquy, provides sufficient evidence to support his claims. The State was unable to provide competent substantial evidence that rebutted Polite’s allegations. Polite is therefore entitled to post-conviction relief in the form of withdrawing his plea.

        Accordingly, we reverse Polite’s plea and remand for a trial on the merits.

        Not final until disposition of timely filed motion for rehearing.

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Notes:

 

1. First, the defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Next, the defendant must show that but for counsel’s unprofessional errors, there is a reasonable probability that the results of the proceeding would have been different.

 

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Courtesy of David Edelstein

 

STATE OF FLORIDA, Appellant,
v.
RICHARD LAWRENCE ROTHWELL, Appellee. 

Case No. 1D06-5713.

 

District Court of Appeal of Florida, First District.

 

Opinion filed May 27, 2008.

 

        An appeal from the Circuit Court for Nassau County, Robert M. Foster, Judge.

        Bill McCollum, Attorney General, and Carolyn Mosley and Joshua R. Heller, Assistant Attorneys General, Tallahassee, for Appellant.

        Bill White, Public Defender, and Brian D. Morrissey, Assistant Public Defender, Yulee, for Appellee.

        ALLEN, J.

        The state appeals an order dismissing a felony battery charge that was being prosecuted after the appellant had been found to be in contempt of court for violating a domestic violence injunction which prohibited the appellant from committing

Page 2

various acts of violence against the battery victim. In dismissing the felony battery charge the court ruled that the prosecution is precluded by principles of double jeopardy, in that the contempt was predicated on the same battery. However, the contempt and the felony battery each require proof of an element the other does not, and the felony battery prosecution does not violate double jeopardy protections and that charge should not have been dismissed.

        The domestic violence injunction was intended to keep the appellant from committing certain acts of violence, with battery specifically being listed as one of the prohibited acts. In the contempt order it was found that the appellant had violated the injunction by committing such a battery. That adjudication was entered in a manner which made it a criminal contempt, as described Pugliese v. Pugliese, 347 So. 2d 422 (Fla. 1977). Double jeopardy protections pertain upon that type of contempt, as indicated in cases such as Richardson v. Lewis, 639 So. 2d 1098 (Fla. 2d DCA 1994). See also United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed. 2d 556 (1993). However, double jeopardy does not necessarily preclude a separate criminal prosecution for felony battery in that this is a question of legislative intent, as to whether the legislature has authorized the subsequent prosecution in these circumstances. See e.g. M.P. v. State, 682 So. 2d 79 (Fla. 1996); see also Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed. 2d 535 (1983).

Page 3

        The Florida legislature has stated its intent in section 775.021(4), Florida Statutes. That enactment provides for convictions and sentences on multiple offenses arising from one incident if each offense requires proof of an element the other does not, and except for crimes which are degrees of the same offense as provided by statute or when one of the crimes is a lesser offense of the other and the statutory elements are subsumed by the greater offense. See §775.021(4)(a), (b), Fla. Stat. Application of the section 775.021(4) standard has resulted in criminal contempt adjudications and convictions for related substantive offenses being allowed when the substantive offense is not subsumed within the act of contempt. See State v. Johnson, 676 So. 2d 408 (Fla. 1996); Richardson, supra. On the other hand, when the elements of the substantive offense are entirely subsumed within an adjudication or conviction for violation of an injunction, separate convictions for the substantive offenses have been precluded under section 775.021(4). See Doty v. State, 884 So. 2d 547 (Fla. 4th DCA 2004); Young v. State, 827 So. 2d 1075 (Fla. 5th DCA 2002). This focus on the elements of the offense, rather than the conduct involved, likewise pertains under the Supreme Court’s decision in Dixon, supra. See also State v. Miranda, 644 So. 2d 342 (Fla. 2d DCA 1994).

        The appellant’s contempt adjudication required proof that he violated the injunction order, with the particular violation being based on the commission of a

Page 4

battery as defined in section 784.03(1), Florida Statutes. The existence of the injunction, and the appellant’s knowledge of that order, were necessary elements of the contempt. Johnson, supra. The separate felony battery charge was brought under section 784.03(2), Florida Statutes, with this offense being statutorily defined as the commission of a battery by a person who has a prior battery conviction. The prior battery conviction is a necessary element of this offense. R.R. v. State, 920 So. 2d 146 (Fla. 5th DCA 2006). Because the contempt adjudication did not require a prior battery conviction, and the felony battery does not require the existence or knowledge of an injunction order, the contempt and the felony battery each require proof of an element the other does not and neither offense is entirely subsumed within the other. Furthermore, a section 784.03(2) felony battery is not an enhancement or degree of a section 784.03(1) battery, and is instead a separate substantive offense. See Bates v. State, 825 So. 2d 1025 (Fla. 1st DCA 2002).

        Section 775.021(4) permits the felony battery prosecution in these circumstances. That prosecution thus does not violate double jeopardy protections, and the felony battery charge should not have been dismissed. The appealed order is therefore reversed, and the case is remanded.

        VAN NORTWICK and LEWIS, JJ., CONCUR.

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

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ROGER CARL MOLINE, Appellant,
v.
STATE OF FLORIDA, Appellee. 

Case No. 1D05-2815.

 

District Court of Appeal of Florida, First District.

 

Opinion filed May 27, 2008.

 

        An appeal from the Circuit Court for Clay County, Frederic A. Buttner, Judge.

        Appellant, pro se.

        Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

        PER CURIAM.

        The Florida Supreme Court quashed our decision in Moline v. State, 31 Fla. L. Weekly D701 (Fla. 1st DCA Mar. 3, 2006), State v. Moline, 976 So. 2d 576 (Fla. 2008), and remanded the case to this court for a “thorough review of the record” and application of a harmless error analysis based upon its decision Galindez v. State, 955 So. 2d 517 (Fla. 2007).

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        The supreme court’s decision did not, however, supersede or disapprove our decision Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005), which held that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), although decided after Isaac’s conviction and original sentence were final, apply to any resentencing that took place after Apprendi came down, even resentencings taking place before Blakely was decided. On this point, Isaac still controls, not as law of the case, but as governing precedent within the First District.

        In Moline, the Supreme Court noted that it could not conduct a harmless error analysis because the record did not contain enough information or record attachments for a review. Similarly, this court does not possess a sufficient record to allow such an analysis. In fact, the state has filed a motion to supplement the record on appeal seeking to add materials not before the trial court, thus implicitly conceding that the existing record does not show the error to be harmless.

        Consequently, we reverse the order under review and remand for the trial court to reexamine the appellant’s claim in light of Galindez. Should the trial court again deny the claim, it shall attach record portions establishing that no reasonable jury could have returned a verdict with findings at odds with the facts the trial court relied on as a basis for upward departure. See Galindez, 955 So. 2d at 523; Moline, 31 Fla. L. Weekly at D701.

Page 3

        REVERSED and REMANDED with directions.

        WOLF, KAHN, and BENTON, JJ., CONCUR.

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

Courtesy of David Edelstein

 

CHARLES W. MULLINS, Appellant,
v.
STATE OF FLORIDA, Appellee. 

Case No. 1D07-2412.

 

District Court of Appeal of Florida, First District.

 

Opinion filed May 27, 2008.

 

        An appeal from the Circuit Court for Bay County, Don T. Sirmons, Judge.

        Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, for Appellant.

        Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

        PER CURIAM.

        Charles Mullins appeals the denial of his motion to withdraw his plea and motion for trial. Mullins argues the trial court reversibly erred by failing to appoint conflict-free counsel upon Mullins’ timely representation that he was misinformed as to his sentence exposure. We reverse.

Page 2

        ”This Court has consistently held that, `once a defendant indicates his desire to avail himself of the [Florida Rule of Criminal Procedure] 3.170(l) procedure, the trial court must appoint conflict-free counsel to advise and assist the defendant in this regard.’” Mosley v. State, 932 So. 2d 1239 (Fla. 1^st DCA 2006) (citing Norman v. State, 897 So. 2d 553, 553 (Fla. 1^st DCA 2005) (quoting Lester v. State, 820 So. 2d 1078, 1078 (Fla. 1^st DCA 2002)). Because the trial court failed to do so here, its denials of Appellant’s motions are reversed and remanded. Upon remand, conflict-free counsel shall be appointed to assist Appellant in this cause.

        REVERSED and REMANDED for proceedings consistent with this opinion.

        ALLEN, DAVIS, and HAWKES, JJ., concur.

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

Courtesy of David Edelstein

Gus Lanier, Appellant/Petitioner,
v.
The State of Florida, Appellee/Respondent.No. 3D07-2928.

No. 3D07-2927.

No. 3D07-2926.

No. 3D07-2819.

District Court of Appeal of Florida, Third District.

Opinion filed May 21, 2008.

Appeals from the Circuit Court for Miami-Dade County, Jorge Perez, Judge, Lower Tribunal Nos. 02-27820, 05-9631, 07-18004.

A case of original jurisdiction — Mandamus.

Gus Lanier, in proper person.

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

Before GREEN, SHEPHERD, and CORTIÑAS, JJ.

SHEPHERD, J.

On November 5, 2007, Appellant, Gus Lanier, filed a Petition for Writ of Mandamus with this Court. On December 28, 2007, we ordered Lanier to show cause why he should not be prohibited from filing further pro se proceedings with this Court concerning his convictions and sentences stemming from lower tribunal case numbers 02-27820, 05-9631, and 07-18004. Having received no response from Lanier, see State v. Spencer, 751 So. 2d 47 (Fla. 1999), and having reviewed the State’s response and the record, we now prohibit Lanier from filing any additional pro se appeals, pleadings, motions, or petitions relating to these convictions and sentences.

I. FactsIn lower tribunal case number 02-27820, Lanier was charged with four counts of aggravated assault on a law enforcement officer, in violation of section 784.021, Florida Statutes (2002), and with resisting an officer without violence, in violation of section 843.02, Florida Statutes (2002).¹ In lower tribunal case number 05-9631, Lanier was charged with battery on a law enforcement officer, in violation of section 784.07(2)(b), Florida Statutes (2002), battery on a facility employee, in violation of section 784.078, Florida Statutes (2002), and threatening a public servant, in violation of section 838.021, Florida Statutes (2002).² In lower tribunal case number 07-18004, Lanier was charged with threatening to throw a destructive device—a bomb—in violation of section 790.162, Florida Statutes (2007), possession of cocaine, in violation of section 893.13, Florida Statutes (2007), and possession of drug paraphernalia, in violation of section 893.147(1), Florida Statutes (2007).³

This petition for mandamus is Lanier’s forty-fifth petition or motion for post conviction relief to reach this Court, thirty-one of which pertain to these case numbers. This is his eighteenth mandamus petition, eleven of which pertain to these case numbers. In the present petition, Lanier contends (1) he has been deprived of due process because the prosecutor withheld exculpatory evidence; and (2) the Department of Corrections deprived him of phone calls, visitation, and interviews with his investigator, and did not allow him to contact the court reporter. We find not merit in this latest petition.

II. Frivolous Appeals by Prisoners“We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Hepburn v. State, 934 So. 2d 515, 517 (Fla. 3d DCA 2005); Johnson v. State, 915 So. 2d 682, 684 (Fla. 3d DCA 2005). There is, however, no constitutional right to file a frivolous lawsuit. See Hepburn, 934 So. 2d at 517-18; see also Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996) (“Depriving someone of a frivolous claim . . . deprives him of nothing at all, except perhaps the punishment of . . . sanctions.”). As this Court stated in both Hicks v. State, 974 So. 2d 1116, 1118 (Fla. 3d DCA 2008), and Minor v. State, 963 So. 2d 797, 799 (Fla. 3d DCA 2007), “there comes a point where enough is enough.” Based upon careful review of Lanier’s filings in this Court, we believe he has reached that point.

III. ConclusionFor the foregoing reasons, we deny Lanier’s Petition for Writ of Mandamus. We further direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this Court any further appeals, pleadings, motions, petitions, or other papers relating to Lanier’s conviction and sentence in case numbers 3D07-2928, 3D07-2927, 3D07-2926, and 3D07-2819, unless they are filed by a Florida Bar member in good standing.⁴ Finally, we direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for consideration by that institution of disciplinary measures against Lanier pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2007).

Petition denied.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. Lanier has filed ten appeals or challenges with this Court stemming from lower tribunal number 02-27820. See, e.g., Case Nos. 3D07-2928; 3D07-2927; 3D07-2926; 3D06-2914; 3D06-2676; 3D06-2375; 3D06-246; 3D05-969; 3D04-2900. Lanier v. State, 915 So. 2d 1219 (Fla. 3d DCA 2005); Lanier v. State, 868 So. 2d 529 (Fla. 3d DCA 2004).

2. Lanier has filed seven appeals or challenges with this Court stemming from lower tribunal number 05-9631. See, e.g., Case Nos. 3D07-2928; 3D07-2927; 3D07-2926; 3D06-2914; 3D06-2676; 3D06-2375; 3D06-246.

3. Lanier has filed fourteen appeals or challenges with this Court stemming from lower tribunal number 07-18004. See, e.g., Lanier v. State, 967 So. 2d 210 (Fla. 3d DCA 2007) (denying petition for writ of mandamus in unpublished table opinion); Lanier v. State, 967 So. 2d 210 (Fla. 3d DCA 2007) (dismissing petition for writ of mandamus based on Logan v. State, 846 So. 2d 472 (Fla. 2003)); Lanier v. State, 961 So. 2d 951 (Fla. 3d DCA 2007); Lanier v. State, 965 So. 2d 139 (Fla. 3d DCA 2007) (denying motion for rehearing and for clarification in unpublished table opinion); Lanier v. State, 965 So. 2d 138 (Fla. 3d DCA 2007) (appeal dismissed); Lanier v. State, 965 So. 2d 138 (Fla. 3d DCA 2007) (denying petition for writ of mandamus in unpublished table opinion); Lanier v. State, 967 So. 2d 1152 (Fla. 3d DCA 2007) (denying petition for writ of mandamus). Lanier also appealed a denial of one of his petitions for writ of mandamus to the Florida Supreme Court, which dismissed the appeal in an unpublished table opinion. Lanier v. State, 969 So. 2d 1013 (Fla. 2007).

4. We note the Florida Supreme Court directed its clerk to reject Lanier’s pleadings because he had filed forty-eight meritless cases. Lanier v. State, 908 So. 2d 332 (Fla. 2005). Two years later, the Florida Supreme Court noted Lanier had filed twenty-two additional pro se proceedings. Lanier was sanctioned in some of his cases after he failed to respond to an order to show cause, and the court directed the clerk to reject any future filings under the same circumstances we have here. Lanier v. State, 973 So. 2d 1122 (Fla. 2007). As recently as March 27, 2008, the Florida Supreme Court again instructed its clerk to reject Lanier’s pro se filings. Lanier v. State, 33 Fla. L. Weekly S222 (Fla. Mar. 27, 2008).

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Courtesy of David Edelstein

MICHAEL J. WOLFF, Appellant,
v.
STATE OF FLORIDA, Appellee.No. 4D07-3604.

District Court of Appeal of Florida, Fourth District.

May 21, 2008.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County, Dan L. Vaughn, Judge, L.T. Case No. 312006CF002007A.

Carey Haughwout, Public Defender, and Anthony Calvello, 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.

PER CURIAM.

Michael Wolff appeals the trial court’s order on the state’s motion to determine restitution as a condition of Wolff’s probation. We reverse and remand for further proceedings.

Wolff was charged by information with one count of third-degree grand theft and one count of burglary of a conveyance. Wolff pleaded no contest to the charges. In exchange for the plea, the trial court adjudicated him guilty of the charges and sentenced him to six months in jail followed by one year of probation on both charges, to run concurrently. The trial court ordered that the probation could be terminated earlier upon payment of restitution.

At the restitution hearing, Nicholas Hearndon, the owner of Nick’s Automotive, testified that he was in custody of a Chevelle owned by Kenny Holmes, the victim in this case, to complete some repair work on the car. Hearndon described what happened to the car while it was in his custody: “It got burglarized over the weekend, numerous stereo components, automotive, different, different performance accessories and, and a lot of damages done to the interior of the vehicle. It was noticed upon [sic] on a Monday morning once I arrived to work.” Hearndon took the vehicle to Elusive Audio to have it repaired after the burglary because it was the company which originally installed the equipment. Hearndon paid for the repairs to the vehicle to show good faith to Holmes. He was charged $1,925.00, which included repairing the damage to the vehicle and replacing the stolen car audio equipment and automotive and performance accessories. The trial court ordered restitution in that amount.

Bennett v. State, 944 So. 2d 524 (Fla. 4th DCA 2006), this court stated:

The trial court’s order on restitution is reviewed using an abuse of discretion standard. Koile v. State, 902 So. 2d 822, 824 (Fla. 5th DCA 2005). “The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. Restitution must be proved by substantial competent evidence.” Id. “Such evidence must be established through more than mere speculation; it must be based on competent evidence.” Glaubius v. State, 688 So. 2d 913, 916 (Fla. 1997). A victim’s testimony, without documentation, is not enough to support an award of restitution. See State v. Schuette, 782 So. 2d 935, 937 (Fla. 4th DCA 2001).

Bennett, 944 So. 2d at 525-26.

Wolff argues that there was insufficient evidence to support the restitution amount because there was no evidence of the fair market value of the stolen car audio equipment and automotive and performance accessories at the time of the theft. We agree.

Domaceti v. State, 616 So. 2d 1148 (Fla. 4th DCA 1993), this court adopted the reasoning of the First District Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1993):

A trial court is not tied to fair market value (FMV) as the sole standard for determining the amount of restitution, and may, in fact, exercise discretion in determining that amount. State v. Hawthorne, 573 So. 2d 330, 332-33 (Fla. 1991). Nevertheless, absent circumstances tending to show that FMV does not adequately compensate the victim or otherwise serve the purpose of restitution, such as theft of a family heirloom or a new automobile, id. at 333 nn. 4-5, or theft of an older car that had been repaired shortly before the theft, as was the case in Hawthorne, the amount of restitution should be established through evidence of FMV at the time of the theft. Id. at 333. Fair market value may be established either through direct testimony or through production of evidence relating to all of the following four criteria: (1) the original cost, (2) the manner in which the items were used, (3) their general condition and quality, and (4) the percentage of depreciation. Id. at 332-33; Abbott v. State, 543 So. 2d 411, 412 (Fla. 1st DCA 1989).

Domaceti, 616 So. 2d at 1149 (quoting Mansingh, 588 So. 2d at 638).

The trial court erred in ordering restitution in the amount of $1,925.00 absent any evidence of the fair market value of the stolen equipment. Although, as the state argues, the trial court has discretion in determining the amount of restitution, and is not tied to fair market value as the sole standard, there are no circumstances in this case tending to show that the fair market value of the items does not adequately compensate the victim or otherwise serve the purpose of restitution. See Domaceti, 616 So. 2d at 1149 (citation omitted).

Therefore, we reverse and remand for a determination of how much of the $1,925.00 restitution award is comprised of the cost of repairs to the vehicle and how much is comprised of the replacement cost of car audio equipment and automotive or performance accessories. We find no error in the portion of the restitution award attributed to the cost to repair the damage to the vehicle. J.M. v. State, 661 So. 2d 1285, 1285-86 (Fla. 4th DCA 1995) (affirming portion of restitution award attributed to the cost of repairs to stolen vehicle). We reverse only as to the amount for replacement cost of the equipment and accessories, and direct that on remand, the trial court use the fair market value in re-calculating the award for those items. See J.L. v. State, 33 Fla. L. Weekly D480 (Fla. 4th DCA February 13, 2008) (concluding that it was error to award restitution for items stolen and damaged, based on estimates of replacement value rather than fair market value).

Reversed and Remanded for Further Proceedings.

SHAHOOD, C.J., HAZOURI and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing

Courtesy of David Edelstein

Jose Cruz, Appellant,
v.
The State of Florida, Appellee.No. 3D07-3153.

District Court of Appeal of Florida, Third District.

Opinion filed May 21, 2008.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Mark King Leban, Judge, Lower Tribunal No. 92-20576.

Jose Cruz, in proper person.

Bill McCollum, Attorney General, for appellee.

Before WELLS and SALTER, JJ., and SCHWARTZ, Senior Judge.

WELLS, J.

In his most recent postconviction motion, titled “Motion to Recall Judgment, Certified Question of Great Public Importance,” Jose Cruz once again raises a claim which was previously denied below and affirmed by this court. See Cruz v. State, 951 So. 2d 847 (Fla. 3d DCA 2007). Upon finding that Cruz has initiated numerous successive, pro se postconviction proceedings attacking his convictions and sentences in lower court case number 92-20576 for armed burglary of an occupied dwelling with an assault, armed kidnapping and two counts of armed robbery, the trial court issued an order to show cause why Cruz should not be prohibited from the filing of further pro se motions attacking his convictions and sentences in this case. Not satisfied that the defendant had shown good cause, the trial court thereafter prohibited the defendant from filing pro se motions challenging his convictions and sentences and denied Cruz’ most recent motion.

We treat the instant appeal from that order as an appeal from the denial of a motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, and affirm both the prohibition from filing further pro se motions, see State v. Spencer, 751 So. 2d 47 (Fla. 1999) (finding that upon a demonstration of abuse, courts may restrict a party from filing pro se pleadings after providing the litigant reasonable notice and opportunity to respond), and the denial of a successive Rule 3.850 motion.

Additionally, on March 31, 2008, we ordered Cruz to show cause why he should not be prevented from filing successive pro se motions in this court. After carefully considering Cruz’ response to this court’s show cause order,¹ we conclude that good cause has not been shown and prohibit him from filing any additional pro se papers relating to the convictions and sentences in this case. Id.; Johnson v. State, 915 So. 2d 682 (Fla. 3d DCA 2005) (finding that after repeated denials of multiple, successive, pro se filings concerning a criminal conviction and sentence, ordering that any future papers filed in this court with respect thereto must be reviewed and signed by an attorney licensed to practice law in this state).

Accordingly, Jose Cruz is now prohibited from filing any further pro se appeals, pleadings, motions, or petitions both here and in the lower court relating to his convictions and sentences in case number 92-20576. We direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to lower court case number 92-20576 unless they have been reviewed and signed by an attorney who is a duly licensed member of the Florida Bar in good standing.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. Cruz requested that his initial brief be accepted as the response to our show cause order, which we grant for purposes of this opinion.

Courtesy of David Edelstein

LEON TITEL, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 4D06-4993.

District Court of Appeal of Florida, Fourth District.

Opinion filed May 21, 2008.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michael G. Kaplan, Judge, L.T. Case No. 98-12550 CF10A.

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

KLEIN, J.

This is an appeal from a denial of a rule 3.850 motion for postconviction relief following an evidentiary hearing. Appellant, who was convicted of sexual battery and kidnapping, argues that his trial counsel was ineffective because he intended to strike a biased juror, but neglected to do so. The trial court found ineffective assistance, but no prejudice, and denied the motion. We reverse.

On voir dire the prosecutor asked:

[Prosecutor]: Does anybody have something predetermined in their mind, “If somebody is raped, they should do this?”

Walker: Yes, I do.

[Prosecutor]: What is it?

Walker: I’m dead set against that trauma a woman or child go through with any sexual abuse. I have a granddaughter involved in incest with a son-in-law. I’m dead set against it. I believe in the law of execution for rapists. I’m just telling the truth.

Prosecutor: I appreciate that.

Neither counsel asked juror Walker any further questions about this statement, and Walker was on the jury which convicted appellant.

After his appeal was affirmed appellant moved for postconviction relief, alleging that his counsel was ineffective for failing to strike Walker for bias. Appellant alleged other grounds, which were disposed of summarily, and this issue was given an evidentiary hearing. At the hearing defense counsel testified that in his voir dire notes he had mistakenly attributed the above comment to a different juror named Drobnis and struck Drobnis instead of Walker. He had intended to strike all jurors who had a family member who had been raped. The notes made during voir dire were consistent with defense counsel’s testimony. The trial court found that defense counsel was deficient for failing to strike this juror either for cause or peremptorily, but that appellant failed to demonstrate prejudice under Strickland v. Washington, 466 U.S. 668 (1984).

Carratelli v. State, 961 So. 2d 312 (Fla. 2007), our supreme court addressed, in the postconviction context, the failure of defense counsel to preserve for appellate review a challenge for cause to an allegedly biased juror. Before the trial in Carratelli, in which the defendant had been charged with six counts of vehicular homicide, there had been extensive media coverage. The defendant had claimed that, rather than driving recklessly, he had become unconscious because of a medical condition. The juror had heard other people in the community express skepticism about the defense, but had not participated in the conversations. He agreed that he could be fair and impartial, and make up his mind based on the evidence. Our supreme court concluded that this court had correctly affirmed the denial of postconviction relief in Carratelli, 915 So. 2d 1256 (Fla. 4th DCA 2005), and explained:

The record plainly shows that juror Inman held no firm opinion except that he could be fair, listen to the evidence, and follow the law. Thus, Carratelli fails to demonstrate prejudice under Strickland.

Before reaching this conclusion our supreme court reasoned:

Under Strickland, to demonstrate prejudice a defendant must show that there is a reasonable probability — one sufficient to undermine confidence in the outcome — that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 466 U.S. at 694, 104 S.Ct. 2052. In the context of the denial of challenges for cause, such prejudice can be shown only where one who was actually biased against the defendant sat as a juror. We therefore hold that where a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased.

Carratelli, 961 So. 2d at 324.

The present case differs from Carratelli in that this juror was never asked, after stating that rapists should be executed and that there was an incident in his family, if he “could be fair, listen to the evidence, and follow the law.” Carratelli, 961 So. 2d at 327. The issue we must decide is whether, under Carratelli, appellant has demonstrated that a juror was actually biased. Id. at 324. We now examine the facts in more detail.

Besides Walker, there were five other jurors who responded that there had been rapes in their families. All of these jurors were questioned individually, out of the presence of other jurors, as to whether they could be fair, and four of the five were eliminated, three for cause and one with a peremptory strike. The fifth satisfied the court that she was not biased and could be fair. Walker was the only one of the group who was not asked if he could be fair. Although, because he was not questioned further, we do not know what would have transpired, the defense had one peremptory challenge which was not used.

The state argues that appellant has not demonstrated that Walker was biased, but, on the contrary, our supreme court explained Bryant v. State, 601 So. 2d 529, 532 (Fla. 1992):

We hold that it is not defense counsel’s obligation to rehabilitate a juror who has responded to questions in a manner that would sustain a challenge for cause. The appropriate procedure, when the record preliminarily establishes that a juror’s views could prevent or substantially impair his or her duties, is for either the prosecutor or the judge to make sure the prospective juror can be an impartial member of the jury.

Based on what the record reflects in this case with regard to the other jurors who had rapes in their families, there is no doubt that the statements made by Walker, in the absence of rehabilitation, would have resulted in a for cause challenge being granted.

A somewhat similar situation was presented in Hughes v. U.S., 258 F.3d 453 (6th Cir. 2001), in which the defendant had been convicted for committing a robbery of a deputy U.S. marshal at gunpoint. On voir dire, the following colloquy occurred:

JUROR [Jeanne Orman]: I have a nephew on the police force in Wyandotte, and I know a couple of detectives, and I’m quite close to ‘em.

THE COURT: Anything in that relationship that would prevent you from being fair in this case?

JUROR: I don’t think I could be fair.

THE COURT: You don’t think you could be fair?

JUROR: No.

THE COURT: Okay. Anybody else? Okay. Where did we leave off?

There was no attempt to rehabilitate this juror, and she served on the jury. After his conviction, the defendant moved for postconviction relief, which was denied without an evidentiary hearing. The district court, however, granted the defendant a certificate of appealability on the issue of ineffective assistance in failing to strike the juror that did not think she could be fair. Because there was no evidentiary hearing, the court of appeals did not have the benefit of the testimony of trial counsel as to why the juror was not stricken, but the court held the juror was biased as a matter of law and reversed:

We find … that juror’s Orman’s declaration that “I don’t think I could be fair,” based on her personal relationships with a police officer and police detectives, in a case involving the theft of a federal marshal’s firearm and personal property at gunpoint, constituted an express admission of bias. …Orman never said that she would be able to render a fair and impartial verdict. …Orman had no difficulty in judging how she would perform as a juror at trial; she did not think that she could be fair. Given Orman’s express admission of bias, with no subsequent assurance of impartiality and no rehabilitation by counsel or the court by way of clarification through follow-up questions directed to the potential juror, we find Orman to have been actually biased in this case. In fact, without more, juror bias can always be presumed from such unequivocal statements as were made in this case.

258 F. 3d at 460.

The opinion was not unanimous, but the dissenting judge would only have remanded for an evidentiary hearing in order to find out why defense counsel did not strike the juror. It is obvious from the dissent that, if defense counsel had testified that he had intended to strike this juror but neglected to do so, as in this case, the decision to grant a new trial would have been unanimous. This court relied extensively on Hughes in its decision in Carratelli, 915 So. 2d at 1260, and our decision was approved by the Florida Supreme Court. Carratelli, 961 So. 2d at 327.

Because appellant has satisfied his burden of demonstrating that one of his jurors was biased, and that his trial counsel was ineffective for failing to strike the juror, appellant is entitled to a new trial. Reversed.

STEVENSON and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing

Courtesy of David Edelstein

 

BRIAN VICTORY, Appellant,
v.
STATE OF FLORIDA, Appellee. 

Case No. 5D07-3491.

 

District Court of Appeal of Florida, Fifth District.

 

Opinion filed May 16, 2008.

 

        3.850 Appeal from the Circuit Court for Orange County, Frank N. Kaney, Senior Judge.

        Brian A. Victory, Bristol, pro se.

        Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.

        MONACO, J.

        The appellant, Brian Victory, appeals the summary denial of his rule 3.850 motion and amended motion for post-conviction relief. We affirm the denial of relief on all grounds except the first ground in which Mr. Victory alleged that his counsel was inadequate because he failed to request an in camera hearing regarding the admissibility of prior sexual contact between the victim and her six year old brother for use as an alternative theory of innocence. As to that ground, we remand for an evidentiary hearing.

        Mr. Victory was charged with two counts of capital sexual battery in which the victim was alleged to be the eight-year old female child of his girlfriend. In the first count the State alleged that Mr. Victory committed the crime by penile penetration, while in the second count the State charged digital penetration. A jury acquitted Mr. Victory of the first count, but convicted him of the second, and he was sentenced to life imprisonment. His direct appeal was affirmed by this court. See Victory v. State, 895 So. 2d 430 (Table) (Fla. 5th DCA 2005).

        Shortly after the victim told her mother that Mr. Victory had perpetrated the acts for which he was prosecuted, the child was examined by a physician’s assistant. The physician’s assistant testified at trial that the victim had a slight irritation of the vaginal area, but there was no blood or discharge. The examination was essentially normal, and no damage to the hymen was found.

        At trial, a nurse testified that she also physically examined the victim on the day after the purported penile penetration. She related that she had seen a scar on the hymen inside the vaginal wall. She opined, as well, that the object causing the scarring could have been either blunt or sharp, but that in any event it induced sufficient injury to cause the tissue to scar. Most important, however, she testified that the level of healing was consistent with an injury that had occurred well before the prior evening.

        Defense counsel attempted at trial to inquire into an incident in which Mr. Victory had disciplined the victim and her younger brother for simulating sexual intercourse. The prosecutor objected and as a result, defense counsel was only permitted to elicit testimony that Mr. Victory had disciplined the children for some unspecified behavior. Mr. Victory asserts that the trial court disallowed the information because defense counsel had not laid the procedural foundation for its admission, even though the victim’s mother had also caught the children in a sexual position. Moreover, Mr. Victory claims that if the brother had testified, he would have admitted to digital penetration of his sister, and that “counsel was made aware of all this.” In denying relief, the trial court did not directly address these specific allegations in the amended motion, but held that the assertions lacked legal sufficiency. We conclude, however, that the appellant is entitled to an evidentiary hearing on this issue.

        Evidence of prior consensual sexual activity between a victim and someone other than the defendant would be admissible if the activity might have been the source of the injuries suffered by the victim. Section 794.022(2), Florida Statutes (2007), provides that specific instances of prior consensual sexual activity between a victim and any person other than the offender shall not be admitted into evidence, unless it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease. McGriff v. State, 601 So. 2d 1320 (Fla. 2d DCA 1992)(evidence of a victim’s prior sexual encounters with others is admissible to show that the defendant was not the source of the victim’s injuries). Indeed, the State concedes that evidence of sexual activity might in these circumstances be admissible, provided it is first established in an in camera hearing.

        Nevertheless, under the standard enunciated Strickland v. Washington, 466 U.S. 668 (1984), a convicted person seeking to establish that his or her attorney was ineffective must demonstrate that counsel’s performance was not only deficient, but also that a reasonable probability exists that but for counsel’s deficient representation, the results of the proceeding would have been different. The trial court summarily denied relief on the issue raised by the appellant concerning his alternative theory of defense. In accordance with the applicable standard of review, this court is required to reverse a summary denial of relief and remand for an evidentiary hearing or other appropriate relief “unless the record shows conclusively that the appellant is entitled to no relief.” See Fla. R. App. P. 9.141(b)(2)(D).

        Here, defense counsel did not seek an in camera hearing with respect to the purported sexual contact between the victim and her brother. While he mentioned to the court that his client had observed simulated sexual activity between the victim and her brother, we are unable to discern from the record whether he was aware of the appellant’s assertion that a digital penetration had taken place.

        Thus, there are a number of issues that cloud any determination of whether the Strickland standard has been met by Mr. Victory, and more particularly, whether the record shows he is entitled to no relief. Given the evidence of old vaginal scarring and the allegations of digital penetration resulting from sexual simulation between the victim and her brother, as well as the fact that defense counsel did not request a statutory in camera hearing on the admissibility of such information, there are too many uncertainties surrounding whether Strickland was satisfied. There is no evidence, for example, of whether defense counsel knew of the claims of digital penetration by the sibling, or of whether counsel made a strategic decision not to pursue that alternative defense.

        While the position of the dissent is certainly appreciated, the fact is that this court does not make credibility determinations. Our requirement is to reverse the summary denial of a rule 3.850 claim and require an evidentiary hearing if the claim of the defendant is not conclusively refuted by the record or by attachments of the trial judge. Neither are present in this case. The claim of Mr. Victory is that the healed damage to the victim’s vagina was caused by digital penetration by her brother. In addition to claiming to have seen the children simulating sex, he claims that the victim specifically told him that her brother was “sticking his fingers” where they did not belong. Mr. Victory has been sentenced to life imprisonment. We cannot judge credibility from afar. Only the trial court can do that.

        Accordingly, because the record fails to demonstrate conclusively that Mr. Victory is not entitled to the claimed relief, we conclude that an evidentiary hearing is necessary to resolve this claim of ineffective assistance, and therefore remand for such purpose. As to all other claims of ineffective assistance made by the appellant, we affirm.

        AFFIRMED in part, REVERSED in part, and REMANDED.

        TORPY, J., concurs.

        SAWAYA, J., dissents, with opinion.

        SAWAYA, J., dissenting..

        I respectfully dissent. One would think from reading the majority opinion that Victory solely alleges digital penetration into the eight-year-old victim’s vagina. Noticeably absent from the majority opinion, however, is the fact that Victory clearly and specifically alleges that the individual who committed the sexual battery—a six-year-old child and brother of the victim—did so by inserting his finger and penis into the vagina of the victim. Moreover, contrary to what one might conclude from the majority opinion, Victory does not simply allege that the six-year-old boy will admit that he inserted his finger into his sister’s vagina; instead, Victory actually proclaims that this six-year-old child will admit that he inserted his finger and penis into the victim’s vagina. Also noticeably absent from the majority opinion is the testimony in the record by the victim and the victim’s mother that the six-year-old brother did not commit the sexual abuse against the victim. I believe that Victory’s allegations are absurd and ludicrous on their face and that confining the discussion to digital penetration in the majority opinion does not make them any less so.

        During trial, defense counsel proffered to the trial court that all Victory was going to tell the jury was that he has “spanked them for seeing the kids simulate sex in the bed” to possibly show that the injury was caused by the six-year-old brother. The trial court properly found this testimony too speculative and allowed Victory to testify that he had disciplined the children for unspecified behavior. In the original version of his rule 3.850 motion, Victory did not allege the nature of the sexual behavior between the victim and her six-year-old brother to show that such behavior resulted in the damage to the victim’s vagina. The appearance of the specific claim that the six-year-old brother, in essence, had consensual intercourse with the victim and penetrated her by inserting his penis and finger into her vagina did not make its appearance until Victory filed his amended motion. It is readily apparent, at least to me, that Victory interjects new allegations at every opportunity.

        Section 794.022, Florida Sta tutes (The Rape Shield Law), excludes “[s]pecific instances of prior consensual sexual activity between the victim and any person other than the offender… [unless] it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease….” § 794.022(2), Fla. Stat. (2007). Deborah Scott, the nurse who performed the physical examination of the victim, testified that the object that caused the trauma could have been either blunt or sharp, but whatever it was, it produced enough injury to cause the child’s vaginal tissue to scar. Nurse Scott specifically testified that there was damage to the hymen with scar tissue that extended past the hymen inside the vaginal vault that “went inside onto that back wall of the vagina.” It is beyond belief that a pre-pubescent, six-year-old child could cause this type of injury as Victory alleges, especially injury that would produce scarring that far back into the victim’s vagina. I find Victory’s allegations—that the victim’s six-year-old brother caused the victim’s injury by engaging in consensual intercourse with her by inserting his penis and finger into her vagina—to be ridiculous and utterly devoid of any merit.

        In order to prove ineffective assistance of trial counsel, a defendant must establish: 1) counsel’s performance was deficient; and 2) the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004). In order to establish prejudice, the defendant must show that there exists a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Nelson, 875 So. 2d at 583. Adverting to the second prong, I do not believe that Victory can establish a reasonable probability that the outcome would have been different had counsel asked for and received an in camera hearing. First, Victory wo uld have testified only that he disciplined the children for simulating sexual intercourse, which hardly established that the six-year-old brother caused the victim’s injury. Moreover, I cannot conceive of any reasonable juror who would view Victory’s attempt to lay the blame for this crime on a six-year-old child by speculating that the child had sexual intercourse with his sister and penetrated her with his penis and finger with anything other than disbelief, especially in light of the testimony by the mother and the victim that it did not happen. Even if the trial judge found the brother competent to testify, given his very young age, I believe that the specter of a six-year-old child being summoned into a courtroom in front of jurors and lawyers, propped up on a booster seat so he could peer out over the rails of the witness box, and questioned about alleged sexual escapades with his eight-year-old sister on nothing more than Victory’s self-serving and baseless speculation would, in all probability, outrage the jury. Had that occurred, I firmly believe that we would be reviewing a claim for ineffective assistance of counsel alleging deficient performance for placing such absurd testimony before the jury.

        The majority reverts to the general rule that this court should not make credibility determinations and that an evidentiary hearing is required if the allegations are not conclusively refuted by the record. There is, however, an exception to the general rule that clearly applies in this case. The exception provides that an evidentiary hearing is not required when the allegations are absurd, ridiculous, and “inherently incredible.” See McLin v. State, 827 So. 2d 948, 955 (Fla. 2002) (recognizing that an evidentiary hearing is not required when the allegations are “inherently incredible”); Evans v. State, 843 So. 2d 938, 940 (Fla. 3d DCA 2003) (“Finally, the defendant is not entitled to a hearing on his claim in any event because, under the circumstances of this case, the claim is facially incredible…. This claim is so thoroughly contrary to common sense as to be inherently incredible, and does not warrant a hearing.”). Any view of this case, either close up or from afar, clearly reveals that Victory’s allegations of penile and digital penetration of the victim by the six-year-old brother are facially incredible and unworthy of an evidentiary hearing.

        In my view, remanding for an evidentiary hearing is a waste of judicial resources. Equally important, it is clear from Victory’s motion that he wants the six-year-old brother questioned about the allegations made by Victory that the child had sexual intercourse with his sister. I believe that it would be most unfortunate to subject the mother and sister to the specter of their son and brother being removed from his kindergarten or first grade class to be taken to the courthouse and questioned about whether he, at the age of six, had sexual intercourse with his eight-year-old sister. The trial judge got it right and applied the law and a good dose of common sense in summarily denying this claim. I would affirm.

Courtesy of David Edelstein

DENNIS T. HUTTO, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 1D08-0113

 

District Court of Appeal of Florida, First District.

 

Opinion filed May 15, 2008.

 

        An appeal from the Circuit Court for Duval County, Hugh A. Carithers, Judge.

        Dennis T. Hutto, pro se, Appellant.

        Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

        PER CURIAM.

        Appellant seeks review of the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court improperly denied the motion as successive, we reverse.

        Appellant claims that he is entitled to postconviction relief because his prior convictions for driving under the influence were uncounseled and thus improperly used to enhance the present DUI charge. He makes four claims based on the uncounseled convictions, essentially that the trial court erred in convicting him of felony DUI, that his sentence is illegal because the elements of the crime were not sufficiently proven, and that his counsel was ineffective for failing to investigate his case and determine that his previous DUI convictions were uncounseled and thus improperly used to enhance the instant DUI conviction. To the extent that the appellant makes claims of trial court error, those claims are not cognizable in a motion for postconviction relief. See Hodges v. State, 885 So. 2d 338, 366 (Fla. 2003) (holding that claims of trial court error should be raised on direct appeal, not in a rule 3.850 motion). However, appellant’s claim that his counsel was ineffective in failing to investigate and determine that his prior DUI convictions were uncounseled and thus improperly used to enhance his current DUI conviction is cognizable in a rule 3.850 motion. See Davis v. State, 710 So. 2d 116 (Fla. 1st DCA 1998) (holding that defense counsel has an obligation to ask a defendant whether his prior DUI convictions were counseled).

        The trial court denied appellant’s motion as successive based on a denial of a previous rule 3.850 motion. However, successive motions for postconviction relief are procedurally barred only when a prior motion for postconviction relief was adjudicated on the merits and not when the previous motion was summarily denied or dismissed for legal or procedural insufficiency. See Freeman v. State, 589 So. 2d 368 (Fla. 1st DCA 1991) (stating that a second rule 3.850 motion is not successive when the prior motion was not addressed on the merits). Because appellant’s initial motion was not addressed on the merits the instant motion was improperly denied as successive.

        We therefore reverse the trial court’s summary denial of appellant’s motion for postconviction relief and remand for an evidentiary hearing or for record attachments conclusively refuting appellant’s claim of ineffective assistance of counsel.

        AFFIRMED, in part, REVERSED, in part, AND REMANDED. BARFIELD, WEBSTER, and LEWIS, JJ., CONCUR.

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

Courtesy of David Edelstein