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.

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        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.

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        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.

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        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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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

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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).

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        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.

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        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.

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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.

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        ”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

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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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