Florida Criminal Law Opinions

STATE OF FLORIDA, Petitioner,
v.
BERNARD BRADY, Respondent.Case No. 2D07-4660.

District Court of Appeal of Florida, Second District.

Opinion filed June 27, 2008.

Petition for Writ of Certiorari to the Circuit Court for the Sixth Judicial Circuit for Pasco County, sitting in its appellate capacity.

Bill McCollum, Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Petitioner.

Wm. Newt Hudson, Tarpon Springs, for Respondent.

WALLACE, Judge.

The State petitions this court for a writ of certiorari to quash an order of the circuit court acting in its appellate capacity. The circuit court order upheld the Pasco County Court’s dismissal on speedy trial grounds of a driving-under-the-influence (DUI) charge. Because the circuit court failed to apply the correct law concerning the effect of a waiver of speedy trial, we grant the petition and quash the circuit court’s order.

I. BACKGROUNDA. The Prior Appeal

This is the second appearance of this case before this court. In Brady v. State (Brady I), 934 So. 2d 659 (Fla. 2d DCA 2006), Bernard Brady petitioned this court for a writ of prohibition based on his claim of a violation of his right to a speedy trial under Florida Rule of Criminal Procedure 3.191. On March 24, 2006, we granted the petition by an unpublished order. We subsequently issued the opinion in Brady I to explain our earlier ruling.

In Brady I, we recited the pertinent facts as follows:

On October 8, 2005, Brady was arrested for driving under the influence (DUI) and for possession of a controlled substance. Upon his arrest, Brady was issued a uniform traffic citation for the DUI offense. The ninety-day speedy trial period for bringing Brady to trial on the misdemeanor DUI charge expired on January 6, 2006. Six days later, the State filed a two-count information in the Pasco County Circuit Court charging Brady with possession of a controlled substance, to-wit: carisoprodol, a third-degree felony (count one), and DUI, a first-degree misdemeanor (count two). Brady moved to dismiss count two of the information filed in the circuit court. On February 6, 2006, the circuit court orally denied Brady’s motion.

Id. at 661. The State filed the information in the circuit court more than ninety days after Mr. Brady’s arrest.

Based on these facts, Mr. Brady argued in Brady I “that the information was untimely filed with regard to the misdemeanor DUI charge and that the circuit court lacked jurisdiction over count two of the information.” Id. We agreed with Mr. Brady, and we granted his petition. In explaining our decision, we said, in pertinent part:

In this case, the State filed the two-count information in the circuit court after the expiration of the misdemeanor speedy trial time period. Furthermore, the county court is not automatically divested of jurisdiction when “misdemeanor and felony charges arising out of the same circumstances have been filed in both county and circuit courts.” State v. Coble, 704 So. 2d 197, 199 (Fla. 4th DCA 1998). “Rather, a motion to consolidate by either party is required to divest the county court of jurisdiction.” Id. at 199-200 (citing State v. Woodruff, 676 So. 2d 975, 977 n.2 (Fla. 1996) (stating that consolidation may be accomplished upon timely motion of a party)). Here, neither the State nor the defense filed a motion to consolidate the two cases prior to the expiration of the ninety-day speedy trial time period. Thus the county court was never divested of jurisdiction over the misdemeanor DUI charge, and the circuit court never properly obtained jurisdiction over that charge.

Id. at 662. Based on this analysis, we prohibited the circuit court from exercising further jurisdiction over Mr. Brady on count two (the DUI charge) of the information filed in the circuit court. Id. However, we specifically noted that our decision had no effect on the pending county court case.¹

B. The Subsequent Proceedings in the County Court

While Mr. Brady’s petition for a writ of prohibition to the circuit court was pending in this court, he filed a motion for discharge on speedy trial grounds in the county court. After our written opinion issued, the Pasco County Court held a hearing on Mr. Brady’s motion and granted it. The county court’s order provided that Mr. Brady “is hereby forever discharged from the alleged misdemeanor offense of driving under the influence.” The county court did not make any findings of fact or conclusions of law in either its oral ruling or in its written order. However, in announcing his ruling, the county judge is reported to have made a statement that appears to have been an attempt to quote from this court’s opinion in Brady I:

THE COURT: [”]The county court was never the best jurisdiction over the misdemeanor DUI charge and the circuit court never properly obtained jurisdiction over that charge.[”] Okay. I’m going to grant the motion to discharge.

(Emphasis added.) We doubt that the county judge actually made this statement in the form attributed to him. Instead, we are inclined to believe that the substitution of the words “the best” for “divested of” in the quoted material is the result of a transcription error. No matter how this error occurred, there is no doubt that the statement misquotes this court’s opinion and misstates our holding in Brady I:

Thus the county court was never divested of jurisdiction over the misdemeanor DUI charge, and the circuit court never obtained jurisdiction over that charge.

Id. (emphasis added).

C. The Circuit Court’s Opinion

Whatever the explanation for the misquotation from Brady I in the transcript of the hearing held in the county court, the circuit court’s written opinion affirming the order discharging Mr. Brady quotes without comment the lower tribunal’s purported conclusion that “the county court was never the best jurisdiction over the misdemeanor DUI charge.” (Emphasis added.) The circuit court’s uncritical repetition of the apparent transcription error in the record of the county court proceedings indicates that the circuit court misinterpreted our holding in Brady I. In addition to misinterpreting Brady I, the circuit court’s opinion never addressed the State’s only argument on appeal from the county court to the circuit court: that Mr. Brady had waived his right to a speedy trial on the DUI charge in the county court.

II. AN OVERVIEWThe question of whether Mr. Brady waived his right to a speedy trial on the DUI charge in the county court is at the heart of this case. The State contends that Mr. Brady waived his right to a speedy trial on the misdemeanor DUI charge in the county court at one of the hearings held prior to the issuance of our opinion in Brady I. To discuss this question, we must first review the events that occurred at the hearings held in the circuit court on January 27 and February 6, 2006, prior to the issuance of our opinion in Brady I. Next, we will review the proceedings at the post-Brady I hearing which resulted in the dismissal of the DUI charge in the county court. This review of the proceedings in the circuit court and in the county court will provide the foundation necessary for our discussion of the speedy trial issue. However, before proceeding to a review of the events at these hearings and a discussion of the question of waiver, we will note our standard of review.

III. THE STANDARD OF REVIEWOn review by certiorari of the decision of the circuit court acting in its appellate capacity, we do not give the parties an opportunity for a second appeal. Instead, we may grant such a petition only in “those instances in which the lower court did not afford procedural due process or departed from the essential requirements of the law.” Hous. Auth. of Tampa v. Burton, 874 So. 2d 6, 8 (Fla. 2d DCA 2004) (citing Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003)). “A failure to observe `the essential requirements of law’ has been held synonymous with a failure to apply `the correct law.’” Id. (citing Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)). “[I]n addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.” Kaklamanos, 843 So. 2d at 890. Here, the State does not argue that the circuit court deprived it of procedural due process. Therefore, we may not grant relief unless we determine that the circuit court departed from the essential requirements of the law with a resulting miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000); Combs v. State, 436 So. 2d 93, 95-96 (Fla. 1983).

IV. THE PRE-BRADY I HEARINGSA. The January 27, 2006, Hearing on the Notice of Speedy Trial Expiration

On January 27, 2006, defense counsel appeared in the circuit court at a hearing that had been scheduled by the State on the notice of expiration of speedy trial time that defense counsel had filed in the county court case. Circuit Court Judge Joseph A. Bulone presided at the hearing. Defense counsel argued that the circuit court did not have jurisdiction over the DUI charge—the charge then identified by the State as “count two” of the information filed in the circuit court. Defense counsel observed that four days earlier, on January 23, 2006, he had filed a notice of expiration of speedy trial time in the county court where his client was originally charged with DUI and where jurisdiction of the DUI charge remained.² Defense counsel offered the helpful suggestion that the State “ought to be setting that County Court case for trial.”

The prosecutor responded that the State had “encompassed the misdemeanor into the felony number” and that by rule this action removed the DUI charge from the county court. The prosecutor insisted that jurisdiction over the DUI charge had been transferred to the circuit court when the DUI charge was joined in an information with the felony charge for possession of a controlled substance—a charge identified in the information as “count one.” Based on the joinder of the DUI charge in the felony information, the prosecutor asserted that the hearing on Mr. Brady’s notice of expiration of speedy trial time was properly before the circuit court. The prosecutor informed Judge Bulone that as long as the misdemeanor DUI charge was tried with the felony charge, she would “be more than happy to try this [case] next week.”

After considering the pertinent facts and the requirements of the speedy trial rule, Judge Bulone noted that a hearing was required to be held within five days after the filing of a notice of expiration of speedy trial time and that a trial must commence within ten days after the hearing. See Fla. R. Crim. P. 3.191(p)(3); see also State v. McCullers, 932 So. 2d 373, 374 (Fla. 2d DCA 2006) (discussing rule 3.191(p)(3) and the “window of recapture”). Judge Bulone then set Mr. Brady’s trial for February 6, 2006, ten days after the January 27 hearing and fourteen days after Mr. Brady had filed his notice of expiration of speedy trial time.

B. The Motion to Dismiss Count Two and the February 6, 2006, Hearings

After the completion of the January 27 hearing, Mr. Brady filed a motion to dismiss the DUI charge—count two—as charged in the felony information. This motion was filed in the circuit court proceedings. Judge Bulone heard this motion on February 6, 2006, the day on which Mr. Brady’s trial had been scheduled. Judge Bulone denied the motion to dismiss count two, but he informed defense counsel that “in an abundance of caution, I have decided to assume that your Notice of Expiration is valid, and we’re going to give you your speedy trial when you want it, which would be today on the 14th day.”

Next, the court and counsel had an extended discussion about discovery issues that had become pressing because of the scheduling of the trial for later that day. At the conclusion of this discussion, Judge Bulone assured defense counsel that he would “do everything humanly possible to accommodate” Mr. Brady on the discovery issues. Judge Bulone continued by suggesting to defense counsel, “If you’d like to waive speedy trial at this point, waive your motion, you may.” Defense counsel responded that he would like to waive his right to speedy trial on count one—the felony charge—and to preserve his arguments and speedy trial issues on count two—the misdemeanor DUI charge.

Defense counsel than announced his intention to seek a writ of prohibition on count two:

[DEFENSE COUNSEL]: I’m going to file a Petition for Writ of Prohibition as to Count Two, which will automatically put a squelch to that, and that’s the proper remedy. The State agrees with that, and that will make the issue of Count Two go away, go away, preserving my right to argue that.

But that’s my proper remedy to speedy trial is to go by Writ of Prohibition.

After defense counsel made known his intentions to seek a writ of prohibition, a lengthy discussion between the court and counsel occurred concerning whether the two counts in the felony information could be severed for trial. At the conclusion of this discussion, defense counsel asserted that because the circuit court did not have jurisdiction over the DUI charge, the recapture period applicable to that charge was continuing to run in the county court.

The exchange between Judge Bulone and defense counsel that followed defense counsel’s assertion that the recapture period was continuing to run in county court is critical to the question of whether Mr. Brady waived his right to speedy trial on the DUI charge in the county court. Judge Bulone asked defense counsel a direct question: “Well, do you want your trial in County Court?” Defense counsel’s answer was equally direct: “No. . . . I’m going to file a Petition for [Writ of Prohibition].” (Emphasis added.) When Judge Bulone offered Mr. Brady a trial on the DUI charge in the county court a second time, the following exchange between the court and defense counsel occurred:

THE COURT: Well, there’s an order, and there’s been an order for a long time in this circuit that a Circuit Court Judge is also an acting County Court Judge; so if you would like to just proceed on the DUI [charge] in County Court, we can go ahead and do that.

[DEFENSE COUNSEL]: But my whole argument, Judge, is this. This Circuit Court has no jurisdiction over Count Two of the Felony Court Information because it was untimely filed.

THE COURT: So if you’re right, then a County Court Judge can go ahead and hear that; correct? [DEFENSE COUNSEL]: Correct.

THE COURT: All right, so by an administrative order, and I’m [an] acting County Court Judge, so if you would like a trial on Count Two, then we’ll go ahead and reset Count One in the future, we can do that, would you like to do that?

(Emphasis added.) Although defense counsel had answered in the negative only moments before when Judge Bulone had asked him if he wanted a trial on the DUI charge in the county court, this time defense counsel avoided a direct answer to the question. Instead, defense counsel reiterated his intention to “go ask the Second DCA for [a] Writ of Prohibition.” After further inconclusive wrangling between defense counsel and the prosecutor, Judge Bulone announced that Mr. Brady’s trial would begin at 2 p.m. that day—the fourteenth day after Mr. Brady had filed his notice of expiration of speedy trial time in the county court.

Nevertheless, there was no trial in Mr. Brady’s case that day. When the court and counsel reconvened to begin the trial at 2 p.m., defense counsel moved for a continuance so that he could prepare and file his petition for a writ of prohibition on count two of the circuit court case, the DUI charge. To this end, defense counsel announced that Mr. Brady would waive his right to a speedy trial on counts one and two of the circuit court case. After confirming Mr. Brady’s agreement to the speedy trial waiver, Judge Bulone continued the trial.

V. THE POST-BRADY I HEARING: RETURN TO THE COUNTY COURTWhile Mr. Brady’s petition for a writ of prohibition was pending in this court, he filed a motion for discharge in the county court on the misdemeanor DUI charge based on the State’s failure to bring him to trial within the recapture period. After our opinion in Brady I issued, the county court held a hearing on August 14, 2006, on Mr. Brady’s motion. Our review of the record of the hearing in the county court reveals that the parties had available to them transcripts of the two February 6, 2006, hearings that had been held in the circuit court before Judge Bulone. Nevertheless, the August 14 hearing in the county court featured an extended debate between defense counsel and the prosecutor about what had actually occurred during the two February 6 hearings before Judge Bulone.

The prosecutor argued that Mr. Brady had waived his right to speedy trial on the DUI charge before Judge Bulone on February 6, 2006. In support of this argument, the prosecutor observed that Judge Bulone “gave [defense counsel] the opportunity to have his case tried in county court and he said, `No, I want to file a writ of prohibition.’ ” Defense counsel had a different view of what had occurred at the February 6 hearings before Judge Bulone. In response to the prosecutor’s argument, defense counsel said:

[The State] never had Judge Bulone, the circuit court judge, come along and say, I’m going to sit as a county court judge. I’m going to have your calendar call hearing and I’m going to set your county court case within 10 days, which they arguably could have done.

They never did that. This case is dead. It’s been dead since the speedy trial clock ran on it back in February of this year.

Despite Judge Bulone’s repeated offers at the February 6 hearings to try the misdemeanor DUI charge as an acting county court judge, defense counsel argued that Judge Bulone was actually offering to try count two of the circuit court case. In support of this argument, defense counsel pointed out that Judge Bulone had never said, “I’m going to act as a county court judge and I’m going to try the DUI case in [traffic citation number] 057796.”

Defense counsel’s argument led the county court to focus on whether Judge Bulone had actually spoken the correct county court case number when he identified the case he was offering to try as an acting county court judge:

[DEFENSE COUNSEL]: For [the State] to take the position that my client was offered the opportunity to have Judge Bulone sit with a county court judge’s robe on and that we were going to try this county court case —

THE COURT: Under the county court case number?

[DEFENSE COUNSEL]: Never happened. Never was even imagined by anybody at the time of the hearing.

THE COURT: [Judge Bulone] said he would try it on count two of the felony?

[DEFENSE COUNSEL]: Correct.

In response, the prosecutor argued that Judge Bulone’s offer to try the misdemeanor DUI as an acting county court judge was unambiguous. The prosecutor concluded that it was inappropriate to “punish the Court and punish the people of the State of Florida because the judge did not specifically say, I’ll try Count No. CTC05555, or you know whatever the case number is, when we all know . . . what case he was talking about.” After hearing these extended arguments about what Judge Bulone had actually offered to do, the county court judge repeated the quotation from Brady I discussed above and—without further explanation—announced that he would grant the motion for discharge.

VI. DISCUSSIONA. Mr. Brady’s Waiver of his Right to Speedy Trial

We begin our discussion by noting the basic principle that a defendant may waive his or her right to a speedy trial. “[T]he right to a speedy trial is a personal right which may be waived by the conduct of defendant or his counsel.” State ex rel. Sheppard v. Duval, 287 So. 2d 370, 372 (Fla. 3d DCA 1973) (citing State v. Earnest, 265 So. 2d 397, 400 (Fla. 1st DCA 1972)). “It is clearly recognized that the periods of time established by the speedy trial rule may be waived by the defendants’ affirmative action.” State v. Stanzione, 315 So. 2d 500, 502 (Fla. 4th DCA 1975).

Here, Mr. Brady argues that his waiver of his right to a speedy trial on the misdemeanor DUI charge was effective only in the circuit court case, not in the county court case. He claims that the speedy trial clock continued running on the misdemeanor DUI charge in the county court and was never suspended on account of anything he said or did in the circuit court. The State responds that Mr. Brady waived speedy trial in the county court case when he declined the offer that Judge Bulone made at the February 6 hearing to try the misdemeanor DUI charge as an acting county court judge.

As we held in Brady I, the circuit court never acquired jurisdiction over the misdemeanor DUI charge. However, it does not follow from this conclusion that the speedy trial clock continued to run uninterrupted in the county court. At the January 27 hearing, the State offered to try Mr. Brady on both counts within the recapture period for the misdemeanor. When defense counsel argued at the February 6 hearing that the circuit court did not have jurisdiction to try Mr. Brady on count two—the misdemeanor DUI charge—Judge Bulone offered to invoke the administrative order then in effect,³ granting the judge the authority to sit as an acting county court judge and to try Mr. Brady on the county court charge. Defense counsel declined this offer.

Mr. Brady argues that Judge Bulone only offered to try the circuit court case because Judge Bulone did not verbalize the correct county court case number. Mr. Brady’s interpretation of the events at the February 6 hearing is that Judge Bulone was offering to sit as an acting county court judge and hear the circuit court case. This view defies logic and common sense. In addition, the transcript establishes that Judge Bulone knew very well that acceptance by Mr. Brady of the court’s proposal would mean that the judge would be sitting as an acting county court judge to hear the county court case:

THE COURT: . . . I have decided to assume that your Notice of Expiration is valid, and we’re going to give you your speedy trial when you want it, which would be today on the 14th day. But . . . because the traffic citation was filed [in county court], and there was one filed in this case; right?

[THE PROSECUTOR]: Yes, Judge.

THE COURT: . . . [I]t’s been a while since I’ve really done anything in County Court, but the State proceeds on traffic tickets on DUIs all the time, and they don’t file informations.

(Emphasis added.) If Judge Bulone had intended by his offer to try count two of the circuit court case, then he would have had no occasion to remark on the passage of time since he had “done anything in County Court” or to question whether a traffic citation for the DUI charge had been filed.⁴

Moreover, Judge Bulone’s offer to try the misdemeanor DUI charge as an acting county judge was motivated—at least in part—by the judge’s grasp of the implication in Mr. Brady’s argument that the recapture period was about to expire in the county court case while Mr. Brady sought a writ of prohibition against the prosecution of count two in the circuit court case. The following exchange between the court and defense counsel is instructive:

THE COURT: Here’s what I’m worried about, and I don’t know the answer. [Mr. Brady] filed a notice of Expiration of Speedy Trial, which means we have to have a trial within 15 days. And if I just say all right, we won’t have a trial on that, and allow [defense counsel] to file a Writ of Prohibition, then wouldn’t an Appellate Court say well, you had the 15 days to try the case, and that was your opportunity to do it, and you didn’t do it, so then in effect you have violated [the] speedy trial rule by not having a trial within 15 days?

. . . .

[DEFENSE COUNSEL]: Judge, I have to ask to continue it so that I can—for the Writ of Prohibition, and the Court just grants it, but it’s clear that it’s because I’m asking you to do it, it’s not because you aren’t going to give me the speedy trial that you’re trying to give me as you see it within the 15-day period. . . . How about if I don’t waive it as to anything, all right, and just ask the Court to continue the trial so that I can proceed to go after my Writ of Prohibition? THE COURT: All right, so you’re sure that an Appellate Court is not going to say well, in a Circuit Court you had 15 days to try the case, and that was your opportunity to do it, and you didn’t do it?

[DEFENSE COUNSEL]: I’m absolutely—I’ll absolutely represent to you that I will never argue to any Court that because the trial is not happening today, because I’m asking it not to happen, that that somehow gives me anymore rights. I’m just preserving the rights I’ve got up to this point, and my argument is that you don’t have any jurisdiction; that there is no 15 days, and so the record is clear, that those 15 days are continuing to run in County Court.

(Emphasis added.) Defense counsel’s warning that the recapture period was “continuing to run in County Court” immediately prompted Judge Bulone’s pointed question: “Well, do you want your trial in County Court?” As recounted earlier in this opinion, defense counsel’s response to this question was unequivocally in the negative.

The record of the proceedings on February 6 unambiguously demonstrates that Judge Bulone offered Mr. Brady an opportunity to be tried on the misdemeanor DUI charge within the recapture period by an acting county court judge in the county court. Both the State and the court were ready to proceed with the trial that day. Thus Judge Bulone scrupulously honored Mr. Brady’s right to a speedy trial on the misdemeanor DUI charge in county court. Instead of exercising his right to a speedy trial, Mr. Brady declined Judge Bulone’s offer. By declining Judge Bulone’s offer to try the misdemeanor DUI charge as an acting county court judge, Mr. Brady waived his right to a speedy trial on the DUI charge in the county court. See State v. Naveira, 873 So. 2d 300, 308 (Fla. 2004); State v. Gilliam, 884 So. 2d 128, 130 (Fla. 2d DCA 2004); Stanzione, 315 So. 2d at 502-03.

B. The Circuit Court’s Application of the Incorrect Law

In its opinion affirming the county court’s order discharging Mr. Brady, the circuit court based its decision on the proposition stated in Brady I that “a misdemeanor charge cannot be revived by consolidating or joining it with a felony charge after the time for speedy trial runs.” 934 So. 2d at 661 (emphasis added) (citing Alvarez v. State, 791 So. 2d 574, 575 (Fla. 4th DCA 2001)). However, the circuit court overlooked our statement in Brady I that “the county court was never divested of jurisdiction over the misdemeanor DUI charge.” Id. at 662. Had the circuit court properly understood our ruling in Brady I that the misdemeanor DUI charge remained pending in the county court, it would have realized that whether the State had properly revived the misdemeanor DUI charge in the felony information was no longer at issue. Thus the circuit court misinterpreted Brady I and applied the incorrect law about reviving misdemeanor charges in felony informations.

In addition, the circuit court did not apply the correct law when it failed to recognize the effect of Mr. Brady’s waiver of his speedy trial right. See State v. Wilson, 690 So. 2d 1361, 1363 (Fla. 2d DCA 1997). In its opinion affirming the county court’s order, the circuit court completely ignored the State’s waiver argument.

VII. CONCLUSIONThe result of these multiple applications of the incorrect law is a miscarriage of justice because it denies the State its right to bring Mr. Brady to trial on the DUI charge in the county court. See id. Accordingly, we grant the petition for writ of certiorari, and we quash the circuit court’s order that affirmed the county court’s order discharging Mr. Brady.

Petition granted; order quashed.

FULMER and DAVIS, JJ., Concur.

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

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Notes:

1. Our prior unpublished order included a similar cautionary note.

2. Mr. Brady was arrested on October 8, 2005. Thus the ninety-day speedy trial window for the DUI charge expired on January 6, 2006. See Fla. R. Crim. P. 3.191(a).

3. The Sixth Circuit’s website identifies this administrative order as number 2005-057, entered on September 23, 2005, entitled “Appointment of Circuit Judges as Acting County Judges, Appointment of County Judges as Acting Circuit Judges, and Appointment of County Judges as Acting County Judges in Another County.” See http://www.jud6.org/LegalCommunity/LegalPractice/AOSAndRules/aos/aos2005/2005.ht m.

4. In county court, a uniform traffic citation may be used to initiate the prosecution of a DUI charge. See Fla. R. Traf. Ct. 6.010, 6.040(b); Hurley v. State, 322 So. 2d 506, 507 (Fla. 1975); see also Ivory v. State, 588 So. 2d 1007, 1009 (Fla. 5th DCA 1991) (stating that the “Florida Rules for Traffic Courts evince a clear intent that the uniform traffic citation constitute the charging document”).

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VIRGIL O’KEITH STEWART, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 5D07-3733.

District Court of Appeal of Florida, Fifth District.

Opinion filed June 27, 2008

3.850 Appeal from the Circuit Court for Marion County, Hale R. Stancil, Judge.

Virgil O. Stewart, Cross City, pro se.

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

The appellant, Virgil O’Keith Stewart, seeks review of the denial of his rule 3.850 motion for post-conviction relief based on his trial counsel’s failure to inform him that he had a statute of limitations defense to two of the five charges to which he entered pleas of guilty. Because the trial court, in considering the evidence presented to it at an evidentiary hearing addressing this issue, applied the wrong statute of limitations to the analysis, we reverse and remand for further proceedings.

In 2001, while Mr. Stewart was in prison for unrelated crimes, warrants were issued on five charges alleging offenses in Marion County. Although a detainer was placed on him for these 2001 charges, he was not arrested on them until 2005. It was at that point that criminal informations were filed by the State with respect to the Marion County offenses.

The Marion County informations charged Mr. Stewart with the commission of five crimes. In case 2001-CF-002342-A he was charged with the burglary of a non-dwelling structure,¹ a third degree felony, and petit theft,² a misdemeanor. In case 2001-CF-002340-A Mr. Stewart was charged with grand theft of an automobile,³ a third degree felony. Finally, in case 2001-CF-002341-A, he was charged with another burglary of a non-dwelling structure and with grand theft,⁴ both third degree felonies. After consulting with counsel, Mr. Stewart agreed to plead guilty to all five charges. In exchange, he was sentenced to five years in prison for the burglary in case 2341-A, and probation on all other charges, to be served consecutively to the prison sentence.

Mr. Stewart sought rule 3.850 relief with respect to each of these charges on the basis that the statute of limitations had already run when the informations were filed, and that his attorney was ineffective in failing to inform him of that fact. He now concedes that the statute had not run on the felony theft charges, inasmuch as those offenses are subject to a five-year statute of limitations.⁵ Not surprisingly, however, the only prison sentence he received based on these pleas was with respect to one of the burglary charges. Thus, he posits that the only reason he is in prison for these offenses is because his lawyer failed to advise him that he had a valid limitations defense.

Section 775.15, Florida Statutes (2001), provides in pertinent part:

(2) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:

(a) A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.

(b) A prosecution for any other felony must be commenced within 3 years after it is committed.

….

(4) An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct or the defendants complicity therein is terminated. Time starts to run on the day after the offense is committed.

(5)(a) Prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document.

The trial court conducted an evidentiary hearing on these issues at which Mr. Stewart’s counsel testified that he could not remember whether or not he had addressed a possible statute of limitations defense with his client, although that would ordinarily be his practice. He concluded, however, by saying that “Whether or not I did was a legal issue that you’re correct we never addressed.” Evidently, the trial judge thought that the burglaries were first degree fe lonies, thus subject to a four-year statute of limitations, when in fact they were third degree crimes⁶ subject to a three-year limitations period. Moreover, the trial court evidently believed that the “prosecution” of the burglary charges commenced when the warrants were issued in 2001, rather than when the informations were filed.⁷ Subparagraph (5)(a), of course, says otherwise. The trial court accordingly denied the motion for post-conviction relief.

We note that the placement of a detainer on Mr. Stewart while he was in prison does not cure the problem. A detainer merely advises prison officials that a prisoner has other charges pending, and requests notification of the prisoner’s release. It is not the equivalent of the process contemplated by section 775.15(5). See Lett v. State, 837 So. 2d 614, 615 (Fla. 4th DCA 2003).

Mr. Stewart established that his counsel was ineffective in failing to investigate the statute of limitations defense and in failing to notify him of the availability of that defense. See Cordes v. State, 842 So. 2d 874, 875 (Fla. 2d DCA 2003).⁸ The State appears to agree that the analysis by the trial court was erroneous, and that Mr. Stewart “arguably had a defense to the burglary charges.” It suggests, however, that if the burglary charges were dismissed, the trial court would probably have given him the same sentence, but simply structured differently. This calls for far too much speculation under the facts of this case, and accordingly a reversal is required. That, however, does not put an end to our analysis.

Mr. Stewart suggests that he does not wish to withdraw his pleas on the theft charges, but only as to the burglary charges. This, of course, would leave him subject only to a probationary placement. We conclude that Mr. Stewart is not free to pick and choose among the counts that he wishes to subject to a plea withdrawal, particularly where his pleas to all charges put the trial judge in position either to fashion an omnibus sentence appropriate to the severity of the crimes and the circumstances of the defendant, or to agree to impose a negotiated sentence. See, e.g., Howard v. State, 932 So. 2d 482, 484 (Fla. 4th DCA 2006). Just as we are not free to speculate that if the burglaries had been dismissed, the trial court would have meted out the same sentence, as argued by the State, we are likewise not free to speculate that the trial judge would not have done so.

Accordingly, we reverse the denial of the motion for post-conviction relief with respect to the burglary charges because of the evident ineffective assistance of counsel, and remand this case to the trial court with instructions to allow Mr. Stewart either to go to trial on the theft counts or to enter another plea with respect to them.

REVERSED and REMANDED with instructions.

GRIFFIN and ORFINGER, JJ., concur.

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Notes:

1. Fla. Stat. § 810.02 (2001).

2. Fla. Stat. § 812.014 (2001).

3. Fla. Stat. § 812.014 (2001).

4. Fla. Stat. § 812.014 (2001).

5. Violations of section 812.014, Florida Statutes, are subject to a five year limitations period pursuant to section 812.035, Florida Statutes.

6. The informations identify the crimes as third degree felonies, not otherwise enhanced.

7. If this were so, it would have speedy trial implications.

8. The Cordes court pointed out that in cases involving a request to withdraw a plea due to ineffective assistance of counsel, the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), is satisfied by proof “that there is a reasonable probability that, but for counsel’s errors [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Cordes, 842 So. 2d at 875 (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985). See also Brown v. State, 943 So. 2d 899, 901 (Fla. 5th DCA 2006).

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HERBERT SHULER, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 2D06-4668.

District Court of Appeal of Florida, Second District.

Opinion filed June 27, 2008.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Highlands County, Peter F. Estrada, Judge.

CANADY, Judge.

This postconviction appeal requires us to consider the relationship between the Florida Contraband Forfeiture Act, § 932.701-.707, Fla. Stat. (2004) (the Act), and the statutory procedure for return of unclaimed personal property that has been lawfully seized as evidence or pursuant to a criminal investigation, § 705.105, Fla. Stat. (2004). We reverse the postconviction court’s order in this case and hold that the court erred when it summarily denied the defendant’s motion for an adversarial preliminary hearing under the Act by making unsupported factual findings and premature legal conclusions that the defendant’s property was not seized pursuant to the Act and that the money had vested in the custody of the Highlands County Sheriff’s Office pursuant to section 705.105.

In August 2006, approximately a year after he was convicted for possession of cocaine with intent to sell and three misdemeanor drug offenses, Herbert D. Shuler filed a motion for an adversarial preliminary hearing under the Contraband Forfeiture Act. Mr. Shuler alleged that the arresting officers had never given him notice pursuant to the Act that he could contest probable cause for their seizure of $665 discovered in his wallet at the crime scene. See § 932.703(2)(a). Attached to his motion was the arrest affidavit, which described the drug transaction leading to Mr. Shuler’s arrest and which noted that “[t]he defendant’s wallet containing his identification and $665 was also recovered from the center of the front seat of the vehicle.”

The postconviction court denied Mr. Shuler’s motion for a probable cause hearing based on the sheriff’s response to the motion. The sheriff contended that the “Florida Contraband Act only pertains to felony acts giving rise to identification of contraband articles.” The incident leading to the seizure of Mr. Shuler’s currency, the sheriff asserted, did not include an arrest for a felony; rather, Mr. Shuler’s commission of the several misdemeanors arising out of these events constituted a violation of his probation for a previous drug felony rather than a new felony. Therefore, the sheriff concluded that the Act did not apply to the seizure of the money in Mr. Shuler’s wallet. The sheriff further asserted that “all applicable reports of the Sheriff’s Office”—without more specific information about those reports—referred to the money as evidence of a crime rather than contraband.

The postconviction court apparently agreed with the sheriff’s response in spite of the fact that it was totally unsupported by fact or law. Nothing in the record attachments to the postconviction court’s order demonstrates that on the date in question, March 3, 2005, Mr. Shuler was not arrested for a new felony. To the contrary, a notation at the top of the arrest affidavit reads: “Poss of Cocaine W/I/T/S W/I 1000′ Church,” which can only be interpreted to mean “possession of cocaine with intent to sell within 1000 feet of a church,” a violation of section 893.13(1)(e)(1), a first-degree felony. Nor is there any record evidence that Mr. Shuler was on probation when he committed these offenses. Moreover, whether or not the crime for which Mr. Shuler was arrested is a felony is not determinative of whether the Act applies.

Section 932.701(2)(a) defines a contraband article as “[a]ny controlled substance as defined in chapter 893 . . . or currency or other means of exchange that was used, was attempted to be used, or was intended to be used in violation of any provision of chapter 893,” provided that the State establishes upon “clearly sufficient” facts that there is “probable cause to believe that a nexus exists between the article seized and the narcotics activity.” Thus, the Act would apparently apply to the seizure of Mr. Shuler’s money as suspected contraband connected with narcotics activity, regardless of whether the crimes constituted felonies.¹

If Mr. Shuler’s $665 was seized as contraband, he was entitled to notice at the time of seizure of his right to an adversarial probable cause hearing to determine the existence of a nexus between the currency and the drug offenses for which he was arrested. § 932.703(2)(a). Even more significant, if Mr. Shuler’s money was seized as contraband, he would be specifically precluded from utilizing the procedure for return of unclaimed evidence, § 705.105, by that statute’s very terms, which defines “unclaimed evidence” as “any tangible personal property, including cash, not included within the definition of `contraband article,’ as provided in s. 932.701(2).” § 705.101(6) (emphasis added). Thus, without a factual determination that Mr. Shuler had not used these funds or did not intend to use them to facilitate drug transactions, as he claims in his motion, he would be left with no legal means to secure their return. See Cloud v. State, 810 So. 2d 573, 574 (Fla. 2d DCA 2002) (holding that upon review of applicable arrest reports, section 705.105 did not apply to the defendant’s motion for return of $1900 seized when he was arrested but further holding that the record was insufficient for a determination of whether the defendant’s money had been properly seized pursuant to the Act).

We hold that the postconviction court erred when it denied Mr. Shuler’s motion for an adversarial probable cause hearing based solely upon the allegations of the sheriff’s response without attaching any documents conclusively refuting Mr. Shuler’s claim or making any independent evidentiary findings that the seized currency was or was not contraband as defined in the Act. We reverse and remand for the postconviction court to hold an evidentiary hearing to make such a determination. If the currency was seized as contraband, the postconviction court should consider whether the sheriff instituted appropriate proceedings under the Act or otherwise established probable cause that a nexus existed between the seized money and the chapter 893 offenses for which Mr. Shuler was arrested. See Wilson v. State, 957 So. 2d 1264, 1265 (Fla. 2d DCA 2007); Wilson v. State, 924 So. 2d 969, 970 (Fla. 2d DCA 2006). If the currency was not seized as contraband but for some other evidentiary purpose—a highly improbable scenario in the typical drug transaction—then the postconviction court must determine whether the statutory limitations on the return of unclaimed evidence would preclude Mr. Shuler from recovering the money. See White v. State, 926 So. 2d 473, 474 (Fla. 2d DCA 2006).

Reversed and remanded for further proceedings.

ALTENBERND and SALCINES, JJ., Concur.

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

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Notes:

1. In contrast, section 932.701(2)(a)(5) of the Act applies to “personal property, including, but not limited to . . . currency, which was used or was attempted to be used as an instrumentality in the commission of . . . any felony.” However, in Mr. Shuler’s case, the more specific subsection, 932.701(2)(a)(1), controls.

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DEAN JOSEPH JOSLIN, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 2D06-4521.

Case No. 2D07-3585.

District Court of Appeal of Florida, Second District.

Opinion filed June 27, 2008.

Appeal from the Circuit Court for Pinellas County, Richard A. Luce, Judge.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.

STRINGER, Judge.

In case number 2D06-4521, Dean Joslin seeks review of the trial court’s order revoking his probation. In case number 2D07-3585, Joslin seeks review of the order modifying his probation conditions, which was rendered after the trial court granted relief pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Joslin’s only argument on appeal pertains to the revocation of his probation in case number 2D06-4521. We reverse the revocation order because the court found a violation based on conduct not alleged in the affidavit of violation of probation and the evidence was not sufficient to support the court’s finding of a second violation.

In June 1995, Joslin entered no contest pleas to two counts of lewd, lascivious, or indecent assault or act on or in the presence of a child. Joslin was ultimately sentenced to twelve years in prison, suspended after seven years with five years of probation. Sometime in early 2004, Joslin filed a pro se motion to clarify his probation. In May 2004, the court rendered an order clarifying Joslin’s probation. That order stated that Joslin was to have “no unsupervised contact with children under the age of eighteen (18) years without adult supervision.”

Joslin was subsequently charged with violating his probation by having unsupervised contact with his seventeen-year-old nephew. Joslin admitted to the violation, and the court reinstated his probation. At the hearing on the violation, Joslin asked the court if the terms of his probation prohibited him from residing with his girlfriend and her toddler nephew, Zack, who were present at the hearing. The court acknowledged that Joslin was not prohibited from residing with a minor but reminded Joslin that he was prohibited from having unsupervised contact with minors. The court also advised Joslin’s girlfriend that Joslin was not to be left alone with the child.

On March 28, 2006, Joslin was charged with three violations of his probation. The corrected affidavit of violation of probation alleged that Joslin violated the condition prohibiting unsupervised contact with minors by (1) living with a five-year—2 old child named Zack and (2) having two children under eighteen, Timothy and Tiffany, spend the night on or about March 10-12, 2005,¹ without knowledge or consent of his probation officer. The affidavit also alleged that Joslin violated condition ten of his probation by erroneously informing his probation officer that he went to court and got permission to reside with a child under eighteen.

At the probation revocation hearing, Joslin’s probation officer, William Roberts, testified that he instructed Joslin that he was not supposed to have unsupervised contact with minors as a condition of his probation. When Roberts discovered that a minor was living in the house with Joslin, he confronted Joslin. Joslin told Roberts that he had permission from the court to reside with the minor. Joslin also told the probation officer that his girlfriend’s children, Timothy and Tiffany, had stayed at the house from March 10-12, 2006. Roberts acknowledged that he had no evidence of unsupervised contact with any of the minors, but Roberts was under the impression that Joslin was not permitted to live with a minor.

Roberts testified that Evelyn Brewer and others from Joslin’s neighborhood called him to find out why Joslin was allowed to live in their neighborhood. Brewer also called the supervisor of the probation program several times to complain about Joslin. Brewer apparently was hoping that the fact that she ran a daycare in the area would be enough to restrict Joslin from living there. Another neighbor who called Roberts was Denise Dunlap. Dunlap also contacted a supervisor about Joslin.

Evelyn Brewer testified that she became aware that Joslin had a conviction for a sexual offense after he moved into the house next door. She could not recall calling the probation office but thought it was possible that she did so. Brewer testified that “[o]ne time” she saw Joslin in his backyard with a preschool age boy. She could not recall the date or even the month that this happened. Joslin was picking up sticks or something similar off the ground at the time. She did not see any other adults in the area, but she could not see the west side of the yard.

Brewer also saw Joslin standing by his garage with three teenagers one time. She did not see any other adults present from her location at the window. However, she could not see the west portion of the yard. She could not recall when this happened.

Lanny Dunlap testified that he lives across the street behind Joslin’s house. His front window is 200 feet from the back of Joslin’s house. Dunlap testified that he saw Joslin in Joslin’s backyard with a preschool age child twice. Dunlap could not be sure there were no other adults present because the entire yard was not visible from his house. Dunlap could not recall when he first observed Joslin with the child, but it was in the spring of 2006. On the second occasion, Dunlap drove past and saw Joslin with a young child in the backyard. While Dunlap did not notice any adults in the vicinity, he also did not look in the pool area to see if anyone was there.

Denise Dunlap, Mr. Dunlap’s wife, testified that a neighbor down the street told her about Joslin. She also runs a home daycare, and she was very concerned about Joslin. She called the probation office to see what could be done about the situation. One day, Mrs. Dunlap saw Joslin in the backyard with a child. She could not recall exactly where she was standing or what day it was. Mrs. Dunlap testified that there were no other adults in sight but admitted that there was a building, a fence, and weeds obstructing her view.

Mrs. Dunlap also testified regarding a party at Joslin’s house that a couple of preteen children and several adults attended. After the party, Mrs. Dunlap saw Joslin standing with the children outside by the driveway. The driveway is on the side of Joslin’s house a few feet from the pool area. Mrs. Dunlap did not see any other adults around, but she could not see if anyone was in the pool area.

The trial court found that Joslin (1) violated the condition prohibiting unsupervised contact with minors by having unsupervised contact with Zack and (2) violated condition ten by informing his probation officer that he had permission to reside with a minor but failing to inform the officer that the contact was required to be supervised. The court did not find a violation based on unsupervised contact with Timothy or Tiffany. The court ordered Joslin to serve 2.5 years in prison followed by 2.5 more years of probation.

On appeal, Joslin argues that (1) the affidavit did not effectively allege a violation of probation for having unsupervised contact with Zack, (2) the court found a violation of condition ten based on conduct not alleged in the affidavit of violation of probation, and (3) the evidence was not sufficient to support the court’s finding that he had unsupervised contact with Zack. In his first argument, Joslin claims that the affidavit did not effectively allege a violation of probation because it alleged that he violated the prohibition against unsupervised contact with a minor but did not allege that he was unsupervised at any time when he shared a home with Zack. However, Joslin did not object or move to dismiss on this basis. In fact, defense counsel “assumed” the allegation at issue concerned unsupervised contact when he made his argument that the evidence did not support a violation of that condition. Thus, Joslin has not preserved this issue for review.

In Joslin’s second argument, he claims that the court found a violation of condition ten based on conduct not alleged in the affidavit of violation of probation. The court found that Joslin violated condition ten of his probation by informing his probation officer that he had permission to reside with a minor but failing to inform the officer that the contact was required to be supervised. While it may be true that Joslin did not inform his probation officer about this limitation on his contact with Zack, this omission was not alleged in the affidavit of violation of probation. The affidavit alleged that Joslin violated condition ten of his probation by erroneously informing his probation officer that he went to court and got permission to reside with a child under eighteen. It is not proper for a court to find a violation based on conduct not alleged in the affidavit of violation of probation. Grimsley v. State, 830 So. 2d 118, 120 (Fla. 2d DCA 2002); Parminter v. State, 762 So. 2d 966, 967 (Fla. 2d DCA 2000). Thus, the court erred in finding a violation on this basis.

In Joslin’s third argument, he claims that the evidence was not sufficient to support the court’s finding that he had unsupervised contact with Zack. We agree. While three witnesses testified that they saw Joslin in his backyard with a young boy on various occasions, none of these witnesses could say that Joslin and the boy were unsupervised. That is, not one of the witnesses had an unobstructed view of the backyard. Accordingly, the evidence did not support the court’s finding that Joslin violated his probation by having unsupervised contact with Zack.

Reversed.

WALLACE, J., Concurs.

VILLANTI, J., Concurs in result only.

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Notes:

1. The State orally amended these dates to March 10-12, 2006, at the revocation hearing.

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VILLANTI, Judge, Concurring.

I agree with the majority that the revocation of Joslin’s probation must be reversed, but I write separately because I disagree with the majority’s reason for this outcome.

As the majority points out, Joslin was prohibited by trial court order from having unsupervised contact with a minor. When Joslin asked the court whether he was prohibited from living with his girlfriend’s five-year-old nephew, Zack, the court said no but reminded Joslin that he was not to have unsupervised contact with Zack. However, the corrected affidavit of violation of probation alleged that Joslin violated his probation simply by “RESIDING with a 5 year old child by the name of Zack” and not that there was any unsupervised contact.

After the presentation of evidence at the revocation of probation hearing, Joslin’s counsel argued against the trial court finding any violation of Joslin’s probation based solely on his contact with Zack, arguing that the State had failed to prove that “any violation occurred at all involving Mr. Joslin.” Joslin’s counsel then argued that the affidavit did not allege a violation, stating, “the affidavit still says the violation is because Mr. Joslin was residing and, therefore, assuming that he was having unsupervised contact with minors.” (Emphasis added.) In my view, this argument is sufficient to put the trial court on notice that Joslin was contending that the written affidavit did not allege a violation of his probation. Because I believe that this argument was sufficient to preserve the issue, I would reverse on this basis. Moreover, even if this argument was legally insufficient to preserve the issue, I would still reverse on this basis because revocation of probation based on conduct not alleged in the affidavit of violation of probation constitutes fundamental error that can be raised for the first time on appeal. See, e.g., DeJesus v. State, 848 So. 2d 1276, 1278 (Fla. 2d DCA 2003) (holding that “`[r]evocation of probation on grounds never alleged in writing violates due process and is fundamental error’ “) (quoting Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999)); Ray v. State, 855 So. 2d 1260, 1261 (Fla. 4th DCA 2003); Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997).

I point out, however, that had the affidavit alleged that Joslin had unsupervised contact with Zack, I would have been inclined to affirm the revocation even though the evidence did not conclusively establish that an adult was not supervising Joslin from the house or a part of the yard not visible to the witnesses. The State is not required in a probation violation case to put on conclusive evidence that a violation occurred; it must only establish by the greater weight of the evidence that a willful, material violation occurred. Further, “[o]n appeal from the trial court’s decision on the issue [of revocation of probation], the standard of review is abuse of discretion. That is, the appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [a] violation was both willful and substantial.” State v. Carter, 835 So. 2d 259, 262 (Fla. 2002) (citations omitted). Given the State’s lessened burden of proof and the deference due to the trial court’s decision, I would have affirmed the revocation in this case had the affidavit charged unsupervised contact.

Finally, I believe that this case stands as a cautionary tale for trial courts that may be inclined to permit sex offenders to live with designated minors. I note that section 948.30(1)(e), Florida Statutes (2007), which was not in effect when Joslin committed his crimes, now sets forth detailed requirements before any contact between convicted sex offenders and minors may occur. Since no sex offender is entitled to have contact with a minor as a matter of right, a trial court granting such contact should consider setting forth detailed parameters concerning that contact, whether or not the new statute applies, especially including the physical distance within which the responsible supervising adult must be when a sex offender is in the presence of a minor. As this case demonstrates, proof of a violation of a nebulous condition of probation is difficult to establish not only for the probation officer, but also for the prosecutor and judge. Thus, even though the nebulous conditions of probation that allowed sex offenders to have certain types of contact with minors in the past have now largely been eliminated by statute, there is still reason for the trial court to provide the greatest guidance possible when permitting such contact.

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

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JOSE BALMORI, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 2D06-4450.

District Court of Appeal of Florida, Second District.

Opinion filed June 27, 2008.

Appeal from the Circuit Court for Sarasota County, Charles E. Roberts, Judge.

James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, and Timothy J. Ferreri, Assistant Public Defender (substituted as counsel of record), Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Jose Balmori appeals an order denying his motion for postconviction relief in which he raised ten claims of ineffective assistance of counsel. The postconviction court summarily denied two of his claims, and it denied the remaining eight claims after an evidentiary hearing. We affirm without discussion the denial of the eight claims addressed at the evidentiary hearing. However, we reverse the summary denial of the other two claims, and we remand this case to the postconviction court for reconsideration of these two claims.

The Underlying Conviction and Theory of DefenseIn 2003, a jury found Mr. Balmori guilty of attempted trafficking in heroin over twenty-eight grams but less than thirty kilograms. See §§ 893.135(1)(c)(1)(c), 777.04(4)(c), Fla. Stat. (2002). The trial court sentenced him to eight years in prison. This court subsequently affirmed Mr. Balmori’s conviction but instructed the trial court to correct a scrivener’s error in the written judgment that incorrectly identified the offense as a first-degree felony when it should have been designated as a second-degree felony. Balmori v. State, 924 So. 2d 7 (Fla. 2d DCA 2005).

At trial, Mr. Balmori admitted that on September 6, 2002, law enforcement apprehended him as he was returning to Sarasota County after a day trip to Miami. However, he denied any knowledge of the 130 grams of heroin that the officers found inside a white plastic grocery bag sitting on the passenger seat of his car. Defense counsel suggested in his closing argument that the heroin may have been “planted” without Mr. Balmori’s knowledge either by law enforcement officers or by some other party using Mr. Balmori as an unwitting “mule” to transport the contraband.

According to Mr. Balmori, he did not travel to Miami and back to transport heroin as the State contended. Instead, his trip to Miami was for a legitimate purpose, i.e., to pick up a mechanical part for his semi-trailer truck. Mr. Balmori explained that he could purchase the part from a junkyard salvage shop in Miami for $700 less than the same part would cost him in Sarasota or Tampa. Mr. Balmori’s testimony that the car had been in an automobile repair shop during the week before his trip to Miami lent some plausibility to the theory that the heroin had been planted in his car. Mr. Balmori claimed that it was entirely possible for him to be unaware that a contraband substance was in a plastic bag on the passenger seat next to him because he regularly left scattered about the vehicle the plastic supermarket bags in which his wife packed his daily lunches. This somewhat novel explanation for the unwitting transport by automobile of a contraband substance might be characterized as “the messy car defense.”

The Postconviction MotionIn February 2006, Mr. Balmori filed his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In claims number three and five of the motion, Mr. Balmori alleged that he had specifically informed his trial counsel of detailed facts, evidence, and potential witnesses that would have supported his claims and lent additional credibility to his explanation of how he could have remained unaware of the presence of heroin in his car. This information included a work order from the repair shop showing the dates and times during which the vehicle was at the shop. Mr. Balmori also alleged that he explained to his trial counsel that the shop employees could have testified about what persons—including a confidential informant who worked at the shop—had access to his vehicle during this time. Mr. Balmori theorized that anyone with access to the shop, including the confidential informant, could have put the heroin in his car without his knowledge. Mr. Balmori also alleged that he had given his trial counsel the name and location of the junkyard salvage shop in Miami and the actual receipt for the purchase of the truck part. This receipt recorded the date and time of purchase, as well as the code number of the salvage shop employee responsible for selling Mr. Balmori the truck part. This particular employee had also given Mr. Balmori instructions about where he could pick up the part.

Mr. Balmori alleged that this evidence would have bolstered his credibility with the jury because it would have corroborated his claim “that he did not go to Miami for drugs.” Moreover, Mr. Balmori claimed that this evidence would have supported the defense theory that the person who had set him up as a “mule” was in fact the confidential informant who worked at the repair shop and who had directed Mr. Balmori to the junkyard salvage shop at a prearranged time. In accordance with his trial testimony, Mr. Balmori claimed that he and other family members regularly tossed empty shopping bags in the car, and it “was an everyday natural thing for him to see” numerous shopping bags in the car “and never imagine[ ] that an illegal substance was [inside].”

Mr. Balmori further asserted in his postconviction motion that despite having received all of this information which would likely have led to evidence supporting his “messy car defense,” his trial counsel provided ineffective assistance when he failed to investigate any of the leads and failed to interview any of the potential witnesses. According to Mr. Balmori, if trial counsel had investigated his claims and presented this evidence and witness testimony at trial, there was a reasonable probability that the jury would have acquitted him.

The Denial of ReliefOn February 9, 2006, the postconviction court summarily denied claims three and five of Mr. Balmori’s motion. The postconviction court noted that Mr. Balmori himself had “testified at trial to the same information as the proposed testimony” and attached to its order a copy of the pages from the trial transcript containing Mr. Balmori’s testimony. The postconviction court ruled that “the failure by counsel to present cumulative evidence would not constitute ineffective assistance of counsel.” On this basis, the postconviction court concluded that Mr. Balmori was not entitled to any relief on claims three and five of his motion. The postconviction court cited Whitfield v. State, 923 So. 2d 375 (Fla. 2005), in support of its ruling.

The Test for Establishing a Claim of Ineffective Assistance of CounselThe legal standard for establishing a claim of ineffective assistance of counsel is a two-pronged one:

[(1) T]he claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. [(2) T]he clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citing Strickland v. Washington, 466 U.S. 668 (1984)). To establish this second prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In this context, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Under Florida Rule of Criminal Procedure 3.850(d), a postconviction defendant who alleges ineffective assistance of counsel is entitled to an evidentiary hearing on his or her claims if the defendant alleges specific facts which are not conclusively rebutted in the record and which demonstrate a deficiency in trial counsel’s performance that prejudiced the outcome of the trial. See Floyd v. State, 808 So. 2d 175, 182 (Fla. 2002). When a postconviction court summarily denies a defendant’s motion without an evidentiary hearing, an appellate court “must accept a defendant’s factual allegations as true to the extent they are not refuted by the record.” Id. (citing Occhicone v. State, 768 So. 2d 1037, 1041 (Fla. 2000)). We review the postconviction court’s summary denial of a rule 3.850 motion under the de novo standard. See Willacy v. State, 967 So. 2d 131, 138-39 (Fla. 2007).

DiscussionA rule 3.850 motion should not be summarily denied unless “the motion, files, and records in the case conclusively show that the movant is entitled to no relief.” Fla. R. Crim. P. 3.850(d). In Mr. Balmori’s postconviction motion, he alleged both the failure to investigate evidence—i.e., business records—and the failure to locate and interview witnesses whose testimony would have corroborated his theory of defense. The trial court denied these claims on the theory that the documentary evidence and witness testimony would have been cumulative to Mr. Balmori’s own testimony, citing Whitfield, 923 So. 2d 375. We disagree with this conclusion.

We conclude that the trial court’s reliance on Whitfield was misplaced for two reasons. First, Whitfield addressed a postconviction claim that was denied after an evidentiary hearing. Id. at 380. Thus neither the circuit court nor the appellate court was required to accept the facts stated in the defendant’s motion as true unless refuted by the written record. Instead, they were able to evaluate the defendant’s claims against the testimony presented at the postconviction evidentiary hearing. Second, the postconviction court in Whitfield considered the defendant’s claim that trial counsel was ineffective for failing to call four witnesses who should have been called to corroborate his voluntary intoxication defense. Id. The Supreme Court of Florida found that at trial, “defense counsel presented significant evidence of [the defendant’s] drug use problems through several witnesses, including their expert witness, . . . police officers, and [a] lay witness.” Id. (emphasis added). In Whitfield, the defendant claimed that trial counsel should have called additional witnesses to testify. The testimony of these additional witnesses was cumulative to the testimony of other witnesses who were called and not to the testimony of the defendant himself. Thus Whitfield does not stand for the proposition that trial counsel cannot be found to be ineffective for failing to call witnesses whose testimony would have corroborated the defendant’s testimony concerning facts essential to establish a defense to the offense or offenses charged. This reading of Whitfield is confirmed by the two cases that the Supreme Court of Florida chose to discuss in support of its holding on this point. Id. Cole v. State, 841 So. 2d 409 (Fla. 2003), and Marquard v. State, 850 So. 2d 417 (Fla. 2002), both addressed postconviction claims that trial counsel was ineffective for failing to call additional witnesses who would have provided testimony similar to that already given by at least one other witness, not just by the defendant.

Here, Mr. Balmori was the only witness to testify for the defense. At trial, the State had to prove beyond a reasonable doubt that Mr. Balmori was “knowingly in actual or constructive possession” of the heroin found in his car. § 893.135(1)(c)(1) (emphasis added). Specifically, the State had to prove that he had “guilty knowledge” of the heroin’s presence.¹ Garcia v. State, 901 So. 2d 788, 793 (Fla. 2005). Because Mr. Balmori’s knowledge of the heroin’s presence was certainly the primary disputed issue at trial, his credibility with the jury was essential to his defense.

We find that, taking all of the allegations in claims three and five of Mr. Balmori’s postconviction motion as true where not refuted by the record, providing independent business records would have corroborated his claims that he drove to Miami for a legitimate reason and that others had access to his vehicle immediately before the trip. To be sure, this documentary evidence may have been duplicative of the content of Mr. Balmori’s testimony, but it was not duplicative of its evidentiary value. Instead, the force of this evidence would have been incremental in value to Mr. Balmori’s testimony. Similarly, the testimony of the witnesses who were not interviewed or called to testify by counsel—especially where they were independent of Mr. Balmori—would likely have incrementally increased his credibility with the jury. Cf. Meus v. State, 968 So. 2d 706, 711 (Fla. 2d DCA 2007) (observing that the testimony of an independent and unbiased witness that would have corroborated the testimony of the defense’s paid expert “would have been crucial to the defense”); Peals v. State, 744 So. 2d 1181, 1182 (Fla. 2d DCA 1999) (finding that the defendant may have been prejudiced by counsel’s failure to corroborate the exculpatory testimony of a witness² whom “the jury may have been disinclined to believe” because she admitted at trial that she had initially lied to the police). Because we are required to accept Mr. Balmori’s allegations as true for the purpose of this review, the corroborating evidence and testimony could possibly have provided the incremental amount of reasonable doubt necessary to win an acquittal.

In sum, we conclude that the documents and witnesses Mr. Balmori allegedly asked his trial counsel to investigate would not have been cumulative to Mr. Balmori’s trial testimony. It follows that the postconviction court erred when it summarily denied Mr. Balmori’s claims that his trial counsel provided ineffective assistance in failing to investigate evidence and witnesses that would have supported Mr. Balmori’s defense. Accordingly, we reverse the postconviction court’s order to the extent that it denied Mr. Balmori any relief on claims three and five of his motion, and we remand for the postconviction court to reconsider these claims. Upon remand, the postconviction court shall determine if the case files and records conclusively refute claims three and five on other grounds. If they do not, the postconviction court shall hold an evidentiary hearing on claims three and five only. In all other respects, we affirm the postconviction court’s order denying Mr. Balmori’s rule 3.850 motion.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and LaROSE, JJ., Concur.

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

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Notes:

1. Since the date of the alleged offense was September 6, 2002, the State was not required to prove that Mr. Balmori had knowledge of the heroin’s illicit nature. See Garcia v. State, 901 So. 2d 788, 792 n.1 (Fla. 2005) (citing § 893.101, Fla. Stat. (2002), which went into effect on May 13, 2002); Whitehurst v. State, 852 So. 2d 902, 903 (Fla. 2d DCA 2003).

2. The witness in Peals was the alleged victim who had initially accused the defendant of attacking her but then exonerated him in her trial testimony. The Peals court found that because of the victim’s shifting version of events, “the jury may have been disinclined to believe her testimony.” Id. Thus, the court found that the defendant had presented a facially sufficient claim of ineffective assistance of counsel when he alleged that trial counsel failed to corroborate the victim’s testimony that was favorable to the defense by failing to investigate, discover information, and depose medical personnel on the results of the victim’s toxicology reports. The Peals court specifically rejected the postconviction court’s conclusion that corroborating testimony by medical personnel would have been cumulative to the victim’s testimony about her own intoxication. Id.

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