Florida Criminal Law Opinions

WANDA L. CORBITT, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 1D06-4241

District Court of Appeal of Florida, First District.

Opinion filed June 27, 2008.

An appeal from the Circuit Court for Suwannee County. David W. Fina, Judge.

James C. Banks of the Law Firm of Banks & Morris, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant, Wanda L. Corbitt, challenges her convictions for trafficking in methamphetamine and possession of a listed chemical on several grounds. We agree that the trial court erred in denying the motion to suppress because the officers’ uninvited and warrantless entry into the side and backyard areas was unlawful. Waldo v. State, 975 So. 2d 542, 543 (Fla. 1st DCA 2008). For this reason, Appellant’s convictions must be reversed. As a result, we need not address the other issues raised by Appellant.

REVERSED and REMANDED.

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

MARK DEAN SCHWAB, Appellant,
v.
STATE OF FLORIDA, Appellee.No. SC08-1199.

Supreme Court of Florida.

June 27, 2008.

An Appeal from the Circuit Court in and for Brevard County, Charles M. Holcomb, Judge — Case No. 05-1991-7249-AXXX.

John W. Jennings, Capital Collateral Regional Counsel, Peter J. Cannon, Mark S. Gruber, and Daphney Gaylord, Assistant CCR Counsel-Middle Region, Tampa, Florida, for Appellant

Bill McCollum, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, Florida, for Appellee

PER CURIAM.

Mark Dean Schwab, a prisoner under sentence of death, appeals the circuit court’s order denying his third successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons stated below, we affirm the circuit court’s order denying relief.

Schwab was convicted of first-degree premeditated murder, sexual battery of a child, and kidnapping, after murdering eleven-year-old Junny Rios-Martinez in April 1991, and he was sentenced to death. This Court set forth the procedural history of this case in Schwab v. State, 33 Fla. L. Weekly S67 (Jan. 24, 2008), and Schwab v. State, 969 So. 2d 318 (Fla. 2007), cert. denied, 76 U.S.L.W. 3620 (May 19, 2008). Schwab’s execution was initially scheduled for November 15, 2007, but the United States Supreme Court issued a stay while it considered a challenge to Kentucky’s lethal injection protocol in Baze v. Rees, No. 07-5439. The United States Supreme Court denied the Eighth Amendment challenge to Kentucky’s lethal injection protocols, see Baze v. Rees, 128 S. Ct. 1520 (2008), and thereafter denied Schwab’s petition for a writ of certiorari and dissolved the stay. See Schwab v. Florida, 76 U.S.L.W. 3620 (May 19, 2008) (denying petition for writ of certiorari, which automatically terminated the stay pursuant to prior order in Schwab v. Florida, 128 S. Ct. 644 (2007)).

Governor Charlie Crist rescheduled Schwab’s execution, setting it for July 1, 2008. Schwab then filed a third successive motion for postconviction relief, again challenging whether Florida’s lethal injection protocol violates the Eighth Amendment. The circuit court denied the motion in a comprehensive order, and we affirm the circuit court’s denial of relief, which we attach and adopt. We agree with the circuit court that Schwab failed to allege newly discovered evidence that would result in a decision different than that reached in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007), cert. denied, 76 U.S.L.W. 3620 (May 19, 2008), and Schwab, 969 So. 2d at 326. The circuit court’s decision is consistent with our recent decisions in Lebron v. State, 33 Fla. L. Weekly S294 (Fla. May 01, 2008); Woodel v. State, 33 Fla. L. Weekly S290 (Fla. May 01, 2008); and Griffin v. State, No. SC06-1055, 2008 WL 2415856 (Fla. June 2, 2008).

No motion for rehearing will be entertained by the Court. The mandate shall issue immediately.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

Courtesy of David Edelstein

RICKY BARRETT, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D06-4531.

District Court of Appeal of Florida, Fourth District.

June 25, 2008.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Ana I. Gardiner, Judge, L.T. Case No. 06-3902 CFA.

Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.

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

CORRECTED OPINIONFARMER, J.

We grant defendant’s motion for clarification and substitute this corrected opinion for the original opinion.

In this conviction for armed burglary, we conclude that the evidence does not support a finding that defendant was armed while committing the burglary and therefore reverse that conviction.¹

Defendant admitted breaking into an automobile dealership for the purpose of taking something of value. Inside he found a safe. The safe being locked and heavy, he pushed it outside the premises into his vehicle and drove away from the scene. Later he was able to force open the safe with a crowbar. Inside he found some blank checks used in the business, some motor vehicle titles, and a loaded gun. He threw the titles into a dumpster, cashed a check, and sold the gun for crack cocaine. Through the cashed check he was identified and arrested. He was tried for armed burglary because he stole the safe in which the gun was stored.

Section 810.02(2)(b) defines burglary as a felony punishable by life “if, in the course of committing the offense, the offender … becomes armed within the … structure … with … a dangerous weapon.” § 810.02(2)(b), Fla. Stat. (2007). Hardee v. State, 534 So.2d 706 (Fla. 1988), the

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court was called upon to determine whether this text required that the gun be loaded with bullets. The court explained:

“A person having possession of a gun during a burglary is subject to a minimum mandatory sentence under section 775.087 regardless of whether the gun was loaded. We do not believe that the legislature intended a different construction of section 810.02(2)(b) which enhances the crime of burglary when the defendant `is armed or arms himself’ with a gun.” [e.s., c.o.]

534 So.2d at 708. As the Florida Supreme Court noted in Hardee, section 775.087(4) defines possession of a firearm by a convicted felon as follows: “Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense.” § 775.087(4), Fla. Stat. (2007). Hardee holds that the legislature intended the same construction for the armed burglary statute and the felony possession of a firearm statute. Giving the two provisions this common meaning of “possession” we conclude that it is necessary for the State to offer evidence “demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense.”

It is now established in Florida law that felony crimes of possession of forbidden substances or things require proof of guilty knowledge. See Washington v. State, 813 So.2d 59 (Fla. 2002) (knowledge of the illicit nature of a substance is an element of the crime of possession even though this element is not explicitly stated in the standard jury instructions); Scott v. State, 808 So.2d 166 (Fla. 2002) (State has the burden in prosecution for possession of controlled substance of proving the defendant’s possession was knowing); Chicone v. State, 684 So.2d 736 (Fla. 1996) (holding that existence of mens rea is the rule rather than an exception to the principles of Florida criminal jurisprudence; guilty knowledge is implicit in the concept of possession as provided in statutes prohibiting possession of controlled substance); Reynolds v. State, 111 So. 285 (Fla. 1926) (holding that crime of possession of liquor required “conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession”). The offense of arming oneself during a burglary means that the offender equipped himself with a firearm. To equip oneself with something is to possess it. Nothing in section 810.02(2)(b) suggests that the legislature meant to dispense with the presumptive element of knowledge.

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No evidence indicates that defendant became aware of the presence of the gun on the premises where the burglary was committed. No evidence demonstrates that defendant knew he “had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense.” In fact, the only evidence about the gun is from defendant’s recorded confession. In that evidence, he said he pushed the safe into his vehicle and drove it away, at which point the burglary was complete. The State offered no evidence that the safe was opened at the scene of the burglary.

Because the evidence does not demonstrate that defendant became armed during the burglary, it follows that his motion for judgment of acquittal on the armed burglary charge should have been granted. On remand, the trial court shall reduce the conviction for armed burglary to burglary of a structure.

Reversed.

WARNER, J., and CONNER, BURTON C., Associate Judge, concur.

Final upon disposition; no further motion for rehearing will be entertained.

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Notes:

1. We affirm the other convictions without further discussion.

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Courtesy of David Edelstein

AARON POWELL, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-1264

District Court of Appeal of Florida, Fourth District.

June 25, 2008.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Robert O. Collins, Judge, L.T. Case No. 02-4154 JR11A.

Carey Haughwout, Public Defender, and Ian Seldin, 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.

POLEN, J.

Appellant Aaron Powell timely appeals his involuntary commitment pursuant to the Sexually Violent Predator Act. Powell argues that the trial court erred in denying his motions for mistrial and new trial based on the state’s allegedly improper closing argument.

During closing argument, the state argued that Powell had no job skills and no support system, as his mother “didn’t bother to show up for the trial.” Defense counsel objected, stating it was improper argument. The trial court sustained the objection. The state also argued that Powell’s low IQ was not a factor to be considered in assessing his risk to reoffend, but suggested that his IQ “makes him that much more scarier to the children in this community.” Defense counsel objected, to which the trial court responded, “It’s closing argument, it’s not evidence, I explained that to them.” The state went on to argue before the jury that Dr. Shadle, the defense’s expert witness at trial, had never testified for the state and works only for defense attorneys. The state argued:

Everything, one hundred percent of what he does in this arena is for the defense, everything he does is for the defense. Let that color how you view his testimony… He has no better idea except to come in here and testify for the person who’s paying him —

Defense counsel objected, and the trial court overruled the objection, stating “It’s closing argument, it’s not evidence.”

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Furthermore, the state argued that Powell met the criteria for involuntary commitment. The state claimed the actuarial science, as brought out by the state’s expert witness, showed that Powell had a 52% chance to recidivate within the next 15 years. The following exchange then occurred:

STATE: … If you hesitate at all, 52% chance of general recidivating, but the kid he recidivates with it’s 100% chance. If you hesitate at all, you’re putting every child he comes in contact with at risk.

DEFENSE COUNSEL: Objection, Your Honor, improper argument.

THE COURT: Overruled.

DEFENSE COUNSEL: May I make a motion, Your Honor? I would like to reserve—

Defense counsel agreed to let the state conclude its closing argument before making a motion for mistrial.

Defense counsel’s motion for mistrial was denied without any reasoning, but the trial court did state, “We’ll come back. You can have as much time. I told you, the both of you can have as much time as you need as long as you finish by next Friday.” Powell filed a motion for new trial, which was also denied by the trial court.

Wide latitude is permitted in arguing to a jury. Moore v. State, 701 So. 2d 545, 551 (Fla. 1997) (citing Breedlove v. State, 413 So. 2d 1, 8 (Fla.1982)). It is within the judge’s discretion to control the comments made to a jury, and appellate courts will not interfere unless an abuse of discretion is shown. Occhicone v. State, 570 So. 2d 902, 904 (Fla.1990); Breedlove, 413 So.2d at 8. We are to look at the closing argument as a whole to determine whether that discretion was abused. Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007).

We note the following improper arguments made by the state: (1) Powell’s low IQ “makes him that much more scarier to the children in this community,” (2) Powell’s mother “didn’t bother to show up for the trial,” and (3) “If you hesitate at all, 52% chance of general recidivating, but the kid he recidivates with it’s 100% chance. If you hesitate at all, you’re putting every child he comes in contact with at risk.” We find that

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the cumulative effect of these improper closing argument remarks entitles Powell to a new trial.

We also note that after defense counsel objected to some of the state’s arguments, the trial court did not specifically sustain or overrule the objection, stating in one instance that the argument was “closing argument, it’s not evidence, I explained that to them.” For adequate appellate review, it is necessary that trial courts make specific rulings to objections raised.

Reversed.

FARMER and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing

Courtesy of David Edelstein

SCOTT ALFRED STROHM, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D06-2152.

District Court of Appeal of Florida, Fourth District.

June 25, 2008.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Charles E. Burton, Judge, L.T. Case No. 04-2105 CFA02.

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

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.

SHAHOOD, C.J.

Appellant, Scott Alfred Strohm, was charged by amended information with two counts of capital sexual battery against his daughter, T.S. The State nolle prossed count II before trial. The offense in count I was alleged to have occurred between 1990 and 1991.

Prior to trial, the State filed an Amended Notice of Intent to Offer Williams¹ Rule Evidence, seeking to introduce a conviction of lewd or lascivious molestation on April 11, 2005 and a conviction of rape in 1974. A pretrial hearing was held and the Williams Rule witnesses testified. After the hearing, the trial court decided to allow into evidence the testimony of the victim of the 1973 rape, but deny the testimony of the other Williams Rule witnesses.

At trial, T.S., appellant’s daughter born in 1983, testified. She testified that between August 1990 and May 1991, appellant sexually abused her on almost a daily basis.

The victim of the 1973 rape testified that in Iowa appellant raped her when she was twelve years old. The victim did not know the appellant.

The jury returned a verdict of guilty as charged on count I capital sexual battery in this case. Appellant raises five issues on appeal, four of which we hold to be without merit and affirm without discussion. As his second issue, which forms the basis of our reversal, appellant urges the

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trial court abused its discretion in admitting collateral crime evidence in that the 1973 rape was dissimilar and remote in time to the crime for which he was currently on trial. We agree.

McLean v. State, 934 So. 2d 1248 (Fla. 2006), the Florida Supreme Court stated:

To guide the trial courts in deciding whether to admit evidence of prior acts of child molestation when it is offered to corroborate the victim’s testimony, we discuss the steps that the trial courts should take.

Id. at 1262. The court further stated:

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

Id.

The 1973 rape for which appellant was convicted in 1974 was on a twelve-year-old who testified that she did not know appellant. The capital sexual battery in this case was on appellant’s daughter and occurred between August 1990 and May 1991 when the victim was eight years old.

In addition, there were substantial other dissimilarities in the crimes. In the 1973 rape the victim was vaginally penetrated while the crime in the instant case consisted of another form of sexual abuse.

The 1973 rape was remote in time to the capital sexual battery charge in this case, seventeen years prior. The 1973 rape was a one-time occurrence on a stranger to the appellant. In this case the sexual battery was on appellant’s daughter over a several month period. In this case there was no evidence of “the presence or lack of intervening circumstances.” McLean, 934 So. 2d at 1262.

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We conclude that it was error to admit the testimony of the 1973 rape victim. We, accordingly, reverse and remand for a new trial.

Reversed and Remanded For New Trial.

HAZOURI and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing

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Notes:

1. Williams v. State, 110 So. 2d 654 (Fla. 1959).

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Hugo Cimadevilla, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-2147.

District Court of Appeal of Florida, Third District.

Opinion filed June 25, 2008.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, William Thomas, Judge, Lower Tribunal Nos. 00-2178; 98-26513

Hugo Cimadevilla, in proper person.

Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.

Before COPE, GREEN, and RAMIREZ, JJ.

PER CURIAM.

Hugo Cimadevilla appeals an order denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

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Cimadevilla was charged by information on September 9, 1998, with armed burglary and resisting arrest without violence in Miami-Dade County, Eleventh Judicial Circuit state court. He pled guilty and was sentenced to two years probation. Subsequently, he was charged three times by way of violation of probation affidavits leading to new findings of guilty or pleas. He was still on probation on June 9, 2005, when Drug Enforcement Administration agents and/or members of the Florida Department of Law Enforcement searched the defendant’s residence. As a result, Cimadevilla was charged with possession of over 500 grams of cocaine and false identification papers. Two days later, an amended violation of probation affidavit was filed regarding, among other probation violations, the defendant’s cocaine possession.

On August 4, 2005, Cimadevilla pled guilty to the violation of his probation and was sentenced to forty months’ incarceration and three years’ probation. At the time he entered his plea to the state probation violation, the federal prosecution against the defendant had not been initiated. However, in September 2005, approximately one month after the state court plea, Cimadevilla was indicted in federal court for the cocaine and false papers that were found in his home on June 9, 2005. The same attorney represented Cimadevilla in both the state court and federal court cases. On or about August 23, 2006, Cimadevilla entered a guilty plea to the federal charge of possession with intent to distribute 500 grams or more

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of cocaine and was sentenced to 220 months in prison to be served consecutively to the time he received in the state court case.

Cimadevilla filed a “Motion to Vacate Judgment and Conviction or in the Alternative to Modify Sentence” pursuant to Florida Rule of Criminal Procedure 3.850, where he claimed that during his sentence colloquy, the court failed to provide notice of the consequences in the state court case regarding the possibility of the federal government pursuing charges against him and that any sentence would run consecutively. Cimadevilla also claimed that his counsel was ineffective for failing to advise him of the direct consequences of his guilty plea.

The trial court denied his motion, stating, “[n]either the Court nor the defendant’s attorney has an affirmative duty to advise the defendant regarding future sentence enhancements because such issues are collateral and a direct consequence of a plea,” and citing Major v. State, 814 So. 2d 424 (Fla. 2002). He then filed this appeal.

Cimadevilla’s sole argument on appeal is that the trial court erred in denying his rule 3.850 motion without conducting an evidentiary hearing or attaching portions of the record that conclusively refuted his claim. To uphold the trial court’s summary denial of claims raised in a rule 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. First, with respect to Cimadevilla’s claim that the trial court should have advised him that if the federal

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authorities filed charges, he could receive a consecutive federal sentence, this claim is legally invalid, and was properly denied by the trial court. See Major, 814 So. 2d at 431.

We also find his second claim to be facially insufficient. Cimadevilla alleges that he received ineffective assistance of trial counsel because his attorney failed to advise him of the possible consequences in federal court of having entered a plea in state court. However, “failure to advise” is not a basis for postconviction relief. Ey v. State, 33 Fla. L. Weekly S144 (Fla. Feb. 28, 2008); Major, 814 So. 2d at 430-31. Accordingly, we affirm the trial court’s summary denial of defendant’s rule 3.850 claim.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

MICHAEL HOSANG, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2239

District Court of Appeal of Florida, Fourth District.

June 25, 2008.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jorge Labarga, Judge; L.T. Case No. 05-6505 CFA02.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant Michael Hosang timely appeals convictions of attempted robbery with a firearm and burglary while armed with a firearm. He argues that the trial court erred in (1) denying his motions for mistrial and new trial based on the state’s improper remarks during closing argument, and (2) denying his motion for new trial where the verdict form was flawed and the jury instructions were confusing. We reverse on both grounds.

This case grew out of a home invasion robbery. During closing argument, defense counsel objected to the state’s argument:

THE STATE: The defense tried to make a big deal about this defendant having tattoos on his hand and none of the witnesses noticing. Two important things about that that you need to understand. First of all, if someone is holding a gun to someone’s head, are you going to be focused on the tattoos or on the barrel of the gun. And Alex and Gail Rybak told you they were focused on the barrel of the gun. Secondly, if you notice what was mysteriously left out of the testimony of this defendant, when did he get those tattoos? This is 18 months later. That was never brought out. You wonder why was that not brought out? And I’ll tell you why. Because he got those after. He got them after, ladies and gentleman.

DEFENSE COUNSEL: Objection, facts not in evidence.

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THE COURT: The jury will recall what the evidence was in the case.

Defense counsel moved for mistrial, arguing that the state’s comments about Hosang’s tattoos could lead the jury to infer that the state had knowledge of when Hosang received the tattoos. The trial court denied the motion, suggesting that “whatever happened is one of those things that happens during closing arguments, and I’m sure the jury heard the evidence and there was no evidence presented that he got those tattoos afterward. . . .”

Wide latitude is permitted in arguing to a jury. Moore v. State, 701 So. 2d 545, 551 (Fla. 1997) (citing Breedlove v. State, 413 So. 2d 1, 8 (Fla.1982)). But attorneys must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” Knoizen v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998) (citing Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993)).

We hold that the state’s remarks in closing argument were improper. See Spoor v. State, 975 So. 2d 1233 (Fla. 4th DCA 2008); Ford v. State, 702 So. 2d 279 (Fla. 4th DCA 1997). As this was a contested identification case, the error was not harmless.

In addition, Hosang argues that the jury instructions and verdict form were not clear as to when Hosang was required to have possessed a firearm. He claims this allowed the jury to find that Hosang possessed a firearm at some time other than during the commission of the attempted robbery or burglary, especially when there was evidence that Hosang possessed a firearm the day after the offenses.

As we are reversing on the first ground, we additionally reverse on this ground and note that the trial court should explicitly set out everything on the verdict form, including the reference to Hosang possessing the firearm during the commission or attempt to commit the robbery or burglary.

Reversed and remanded for a new trial.

WARNER and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing

Courtesy of David Edelstein

ARTHUR THOMPSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2418.

District Court of Appeal of Florida, Fourth District.

June 25, 2008.

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case No. 89-6825 CF10A.

Ryan J. Sydejko of Loren Rhoton, P.A., Tampa, for appellant.

Bill McCollum, Attorney General, Tallahassee, and August Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant, Arthur Thompson, was convicted by a jury, on July 22, 1991, of first-degree murder, burglary with assault and battery, and robbery, all arising from his uninvited entry into a trailer and killing of its resident. The trial court sentenced Thompson to life in prison as a habitual felony offender (HFO) with a 25-year mandatory minimum for the murder conviction, life in prison as a HFO for the burglary conviction, and 30 years in prison as a HFO for the robbery conviction. The sentences ran consecutively to each other. It was only the designation of appellant as a HFO that permitted the trial court to sentence him above the guidelines. See § 775.084(4)(e), Fla. Stat. (1989).

Appellant filed a rule 3.800(a) motion in the trial court seeking relief pursuant to Hale v. State, 630 So.2d 521 (Fla. 1993), which held that HFO sentences cannot run consecutively to each other when the offenses occur in a single criminal episode. Under State v. Callaway, 658 So.2d 983 (Fla. 1995), Hale can be applied retroactively. Teague v. State, 871 So.2d 301 (Fla. 1st DCA 2004) (holding that a Hale claim is cognizable in a rule 3.800(a) motion as long as the fact that multiple convictions arose from a single criminal episode is readily apparent from the face of the record). The trial court deleted the HFO designation from all three sentences and reduced the 30-year robbery sentence to 15 years, the statutory maximum sentence for a second-degree felony without enhancement. Otherwise, the sentences were unchanged.

Thompson appealed the changed sentence, arguing for a de novo resentencing hearing because the consecutive life sentence for the

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burglary conviction is still a sentence above the guidelines. See Brooks v. State, 937 So.2d 827, 828 (Fla. 2d DCA 2006) (finding that sentencing guidelines apply to resentencing following a successful rule 3.800(a) motion, but the state has the right to seek an upward departure).

A defendant need not be present when a court simply deletes a HFO designation without otherwise changing the sentence. Catalan v. State, 911 So.2d 203 (Fla. 3d DCA 2005). In this case, however, when the trial court deleted the HFO designation, there was no justification for a sentence above the guidelines. Dougherty v. State, 785 So.2d 1221, 1223 (Fla. 4th DCA 2001) (stating a defendant is entitled to be present at sentencing, except in “resentencing cases where all that is required on remand is a ministerial act of sentence correction”). Although, a departure sentence for the burglary conviction may be justified, the trial court must give reasons for imposing a departure sentence. Because appellant’s HFO designation was improper under Hale, a de novo resentencing hearing is necessary for the court to consider whether a sentence above the guidelines is justified.

Reversed and remanded for a de novo resentencing hearing.

SHAHOOD, C.J., FARMER and KLEIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Jorge Alberto Castillo, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-154

District Court of Appeal of Florida, Third District.

Opinion filed June 25, 2008.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge, Lower Tribunal No. 94-42646.

Eduardo Soto, Andrea Morey, Kate Walling, and Karla Lammers, for appellant.

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

Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.

SUAREZ, J.

Jorge Alberto Castillo seeks to reverse the trial court’s order denying his motion to vacate his plea pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand.

Castillo is a Peruvian citizen. In 1995, he pleaded guilty to a forgery charge and adjudication was withheld.¹ Castillo asserts that his application for permanent residency has since been denied and that he is subject to deportation. Castillo’s Rule 3.850 petition to vacate his plea and conviction is timely under Green,² as the record shows that Castillo has not previously been served with an Immigration and Naturalization Service (INS) Notice to Appear. In his petition, Castillo claims that he was not given the required deportation warnings in the 1995 plea colloquy, and that the withhold of adjudication should be vacated so that he may seek an INS waiver of the convictions remaining on his criminal record. The trial court summarily denied the petition.

On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D); Green, 944 So. 2d at 219 (Fla. 2006) (holding

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that the trial court may summarily deny the post-conviction petition only if it attaches record that conclusively refutes one or more of the petitioner’s claims; otherwise, the defendant must receive an evidentiary hearing). Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. Castillo has another conviction for purchasing cannabis. His sworn motion (filed by counsel) alleges that this was a minor offense and is eligible for a waiver of deportation under the federal Immigration and Nationality Act. The State’s response, filed in the trial court, alleged that the conviction was a felony, but the State failed to file the judgment and failed to address the claim that Castillo is eligible for a waiver.

2. State v. Green, 944 So. 2d 208 (Fla. 2006).

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Courtesy of David Edelstein

Jimil Troutman, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-459

District Court of Appeal of Florida, Third District.

Opinion filed June 25, 2008.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, William Thomas, Judge, Lower Tribunal No. 06-25000.

Jimil Troutman, in proper person.

Bill McCollum, Attorney General, for appellee.

Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

LAGOA, J.

Jimil Troutman (“Troutman”) appeals from the trial court’s order denying

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his motion to correct credit for jail time served filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s denial as we find that the record conclusively refutes Troutman’s claim.

On July 29, 2006, Troutman was arrested and charged with one count of robbery in case number 06-25000. On March 15, 2007, following a plea, Troutman was released from prison with a term of probation not to exceed five years. On October 13, 2007, Troutman was arrested for battery and other probation violations. During a November 7, 2007 probation revocation hearing, the trial court in case number 06-25000 adjudicated Troutman guilty, revoked his probation and sentenced him to serve 364 days in jail.

In his Rule 3.800(a) motion, Troutman contends that he is entitled to a credit of 230 days for time served from July 29, 2006 to March 15, 2007. The record, however, conclusively refutes Troutman’s claim. During the November 7, 2007 probation revocation hearing, Troutman specifically entered into a plea where he acknowledged that he would lose the gain time served prior to the October 13, 2007 arrest. Specifically, the record conclusively shows as follows:

THE COURT: Mr. Troutman, do you understand that as a condition of this plea, you will only receive credit for time served from the date of your last arrest?

That means that you will get credit for time served only from November 6th, 2007. No other time that you spent in on this case would you receive credit for. Do you understand that?

THE DEFENDANT: Yes, sir.

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THE COURT: Knowing that, do you still wish to enter into this admission?

THE DEFENDANT: Yes, sir.

* * * *THE CORRECTION OFFICER: He picked up a misdemeanor and he’s been in since 10-13.

THE COURT: All right. Give him credit for time served from 10-13. Good luck to you, sir.

Because the record conclusively establishes that Troutman is not entitled to relief, we affirm the trial court’s denial.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein