Florida Criminal Law Opinions

 

 

 

 

        Appeal from the Circuit Court for Polk County, Neil Roddenbery, Judge.

        James Marion Moorman, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant.

        Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

        VILLANTI, Judge.

        Carlos Antunes-Salgado appeals from his convictions for trafficking in cocaine (400 grams or more) and conspiracy to traffic in cocaine (400 grams or more). Because Antunes-Salgado’s counsel was ineffective and because the ineffectiveness is

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apparent on the face of the record, we reverse and remand for a new trial. This resolution renders Antunes-Salgado’s other issues moot.

        In early October 2005, a confidential informant (CI) arranged with an individual named Ofelia Tranquilino for the purchase of a large quantity of cocaine. During the cell phone calls that led up to the transaction, Tranquilino told the CI that other people would be with her at the transaction, but she did not tell the CI who those people would be.

        Tranquilino subsequently arrived at the transaction location in a pickup truck. Martin Salvidia-Serena was driving, Tranquilino was in the passenger seat, and Antunes-Salgado was in the back seat behind the driver. Rumaldo Varga, Javier Reynoso, and Victor Romero-Reynoso arrived in a separate vehicle. Tranquilino got out of the pickup truck and approached the CI. She and the CI then returned to the pickup truck, and shortly thereafter the CI gave a signal to the police that indicated that the drugs were in the truck. When the police stormed the truck, they found five kilograms of cocaine in a closed pink “Hello Kitty” backpack on the floorboards between Antunes-Salgado’s feet. Postarrest and post-Miranda,¹ Antunes-Salgado admitted that he knew the cocaine was in the backpack, but he told the officers that the cocaine belonged to Tranquilino and that his only involvement in the offense was to show the CI the cocaine in the backpack when he was told to do so by Tranquilino.

        Antunes-Salgado was subsequently charged with both trafficking in cocaine and conspiracy to traffic in cocaine based on these events. None of Antunes-Salgado’s

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codefendants was present at his trial.² Instead, the State sought to prove the existence of the conspiracy through the postarrest and post-Miranda statements of Antunes-Salgado’s codefendants as related by the police officer who took their statements. According to the officer, Tranquilino told him that Antunes-Salgado offered to pay Tranquilino $500 to deliver the cocaine. She also told the officer that Antunes-Salgado gave her the telephone number for the CI and gave her the cocaine on the morning of the transaction. The officer testified that Salvidia-Serena told him that Antunes-Salgado had agreed to forgive a debt Salvidia-Serena owed him if Salvidia-Serena would agree to drive Antunes-Salgado to the transaction. The officer further testified that Javier Reynoso said that Antunes-Salgado had offered to pay him $500 if he would follow Antunes-Salgado to the transaction. The two remaining codefendants each told the officer that they were, in essence, just along for the ride. Each of these statements minimized the respective declarant’s involvement in the offenses and shifted the bulk of the involvement to Antunes-Salgado.

        Defense counsel did not object to the admission of the codefendants’ statements to the officer. Instead, just before the start of trial, defense counsel volunteered that he believed that the codefendants’ statements were admissible under section 90.803(18)(e), Florida Statutes (2005), and he sought to have the court give the cautionary instruction provided for by that statute. However, defense counsel also told the court that he had not researched the admissibility issue, saying, “I have case law. I’ve been trying to look at it and I’ll be looking at it from time to time during the morning to see if I can give the Court a little more guidance on how to handle this. I haven’t had

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the situation before. There are some cases that are very lengthy and I’m trying to get to the meat of them.” (Emphasis added.) The court did not question defense counsel’s concession of the admissibility of these statements, and it agreed to give the cautionary instruction as requested.

        Based on defense counsel’s concession, the State presented the hearsay statements of each of Antunes-Salgado’s codefendants during its case-in-chief. The State presented no other evidence to establish that Antunes-Salgado and the codefendants had a specific agreement to commit the crimes. The jury subsequently convicted Antunes-Salgado of both trafficking and conspiracy, and the trial court sentenced Antunes-Salgado to twenty-five years in prison with a fifteen-year minimum mandatory term on each count.

        In this appeal, Antunes-Salgado admits that the issue of the admissibility of his codefendants’ statements was not preserved for appellate review. However, he argues that defense counsel was ineffective for conceding the admissibility of these statements, which were the sole evidence supporting the conspiracy charge. On the specific facts of this case, we agree.

        Ineffective assistance of counsel is found when counsel’s performance falls outside the range of reasonable professional assistance and when there is a reasonable probability that the results of the proceeding would have been different but for the inadequate performance. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). As a general rule, claims of ineffective assistance of counsel may not be raised on direct appeal. See, e.g., Bruno v. State, 807 So. 2d 55, 63 (Fla. 2001); Stewart v. State, 420 So. 2d 862, 864 n.4 (Fla. 1982); Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d

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DCA 2002). However, “appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Corzo, 806 So. 2d at 645. To obtain relief on the basis of ineffective assistance of counsel on direct appeal, the facts upon which the claim is based must be clearly evident in the record. Stewart, 420 So. 2d at 864. Moreover, the ineffectiveness must be so clear that “it would be a waste of judicial resources to require the trial court to address the issue.” Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987); see also Ross v. State, 726 So. 2d 317, 318 (Fla. 2d DCA 1998).

        Here, the State charged Antunes-Salgado with conspiracy to traffic in cocaine pursuant to section 893.135(5), Florida Statutes (2005). This section provides that “[a]ny person who agrees, conspires, combines, or confederates with another person” to traffic in cocaine is guilty of conspiracy to traffic. In order to obtain a conviction for this offense, the State had to prove more than that Antunes-Salgado was present at the scene of the offense with knowledge of the offense. See, e.g., Chaparro v. State, 873 So. 2d 631, 633 (Fla. 2d DCA 2004); Mickenberg v. State, 640 So. 2d 1210, 1211 (Fla. 2d DCA 1994); Baxter v. State, 586 So. 2d 1196, 1199 (Fla. 2d DCA 1991); Jimenez v. State, 535 So. 2d 343, 344 (Fla. 2d DCA 1988). The State also had to prove more than that Antunes-Salgado aided or abetted the crime. See, e.g., Baxter, 586 So. 2d at 1199; Ramirez v. State, 371 So. 2d 1063, 1065 (Fla. 3d DCA 1979). Instead, the State had to prove the existence of an express or implied agreement between Antunes-Salgado and at least one other person to commit the trafficking offense at issue. See Jimenez, 535 So. 2d at 344.

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        To meet its burden to prove that Antunes-Salgado was involved in a conspiracy, the State relied on the postarrest statements made by his codefendants to police during formal, post-Miranda interrogations as testified to by the police officer who took the statements. Defense counsel conceded to the admissibility of these statements; however, the statements were not admissible for four different reasons.

        First, contrary to defense counsel’s belief at trial, the statements were not admissible under section 90.803(18)(e). Section 90.803(18)(e) provides for the admission of statements made by coconspirators during the course of the conspiracy and in furtherance of it. Longstanding Florida caselaw holds that statements made after the crime has been committed and that do not “further” the conspiracy are inadmissible under section 90.803(18)(e). See, e.g., Brooks v. State, 787 So. 2d 765, 772 (Fla. 2001) (holding that statements made by coconspirator long before any agreement to commit a crime was made did not “further” the conspiracy and were therefore inadmissible); Usher v. State, 642 So. 2d 29, 31 (Fla. 2d DCA 1994) (holding that statements made by a coconspirator after the kidnapping had been accomplished were not admissible under section 90.803(18)(e)); Isom v. State, 619 So. 2d 369, 372 (Fla. 3d DCA 1993) (holding that coconspirator’s postarrest statements were not in furtherance of the conspiracy and so were not admissible under section 90.803(18)(e)); Thomas v. State, 349 So. 2d 743, 744 (Fla. 1st DCA 1977) (holding that coconspirator’s statement to police during the course of the conspiracy was intended to expose the conspiracy rather than further it and so was not admissible under section 90.803(18)(e)).

        Here, there is no question that Antunes-Salgado’s alleged coconspirators’ postarrest and post-Miranda statements occurred after the conspiracy was over and did

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nothing to “further” the conspiracy. Therefore, the statements were inadmissible under section 90.803(18)(e), and defense counsel was ineffective for conceding admissibility on this basis.

        Second, the statements are not admissible under section 90.804(2)(c) as statements against interest. Section 90.804(2)(c) permits the admission of statements which are “so far contrary to the declarant’s pecuniary or proprietary interest . . . that a person in the declarant’s position would not have made the statement unless he or she believed it to be true.” However, this statute does not provide for the admission of the portions of a nontestifying codefendant’s confession that implicate the defendant. See, e.g., Lilly v. Virginia, 527 U.S. 116, 134 (1999) (holding that the portions of a non-testifying accomplice’s confession that implicate the defendant do not fall within any hearsay exception); Williamson v. United States, 512 U.S. 594, 600-01 (1994) (holding that the federal counterpart to section 90.804(2)(c) “does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory”); Brooks, 787 So. 2d at 775 (same).

        Here, while Antunes-Salgado’s codefendants’ statements were partially self-inculpatory, the State also presented those portions of the statements that implicated Antunes-Salgado and that shifted the majority of the guilt to him. These portions of the statements were inadmissible under section 90.804(2)(c) and Lilly and Williamson, and defense counsel was ineffective for failing to object on this basis.

        Third, even if the codefendants’ statements could somehow be shoehorned into a hearsay exception, they were inadmissible under Crawford v. Washington, 541 U.S. 36 (2004). Crawford prohibits the admission of “testimonial”

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hearsay because it violates the Confrontation Clause. Id. at 51. While Crawford notes that statements of coconspirators are generally nontestimonial, that statement in Crawford was made in reference to statements made in furtherance of the conspiracy. Id. at 56. Moreover, Crawford specifically holds that statements made during police interrogations are testimonial and therefore inadmissible. Id. at 53.

        Here, Antunes-Salgado’s codefendants’ post-Miranda statements to the police were clearly testimonial and thus clearly inadmissible under Crawford. The statements were made in response to a police interrogation, and they were not statements made in furtherance of the conspiracy. Therefore, defense counsel was ineffective for failing to object on this basis as well.

        Fourth, contrary to the State’s assertion in this appeal, the statements at issue are not nonhearsay “verbal acts.” “Verbal acts” are statements made during the course of an act or transaction that explain the nature of the act. See, e.g., Banks v. State, 790 So. 2d 1094, 1097-98 (Fla. 2001); Harris v. State, 544 So. 2d 322, 323 (Fla. 4th DCA 1989). These types of statements are not hearsay because they are not offered for the truth of the matter asserted but instead are offered to show the effect of the statement on the defendant because that effect has some independent legal significance.

        For example, in Banks, an undercover police officer was standing at a pay phone when a car driven by Banks approached. 790 So. 2d at 1096. Banks’ passenger, Goodman, spoke to the officer and asked her what she needed. Id. The officer first asked Goodman whether Banks was “straight up.” Id. After Goodman replied that he was, the officer asked Goodman if she could purchase drugs from him.

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Id. Goodman told the officer that it would be no problem, but he was concerned about a car that he believed to be an undercover police car, so the officer offered to meet them in an alley a short distance away. Id. A few minutes later, Banks drove into the alley with Goodman still in the passenger seat. Id. Goodman then sold the officer the drugs. Id. Goodman did not testify at trial, and Banks challenged the admission of Goodman’s statements as hearsay; however, the trial court admitted the statements.

        On appeal, the supreme court noted that many of the statements Goodman made to the officer arranging the drug sale and arranging to meet in the alley appeared to be admissible as “verbal acts” because those statements explained Banks’ conduct in driving the car into the alley after the initial encounter. Id. at 1099 n.3. That conduct had independent legal significance because it implicated Banks in the transaction. Id. However, the statement that Banks was “straight up” was not a verbal act because it did not explain the nature of the act or transaction but rather simply implicated Banks in the transaction. Id. at 1098. Therefore, the statement directly incriminating Banks was not a verbal act and was not admissible. Id.

        Similarly, Stevens v. State, 642 So. 2d 828 (Fla. 2d DCA 1994), the State sought to admit an officer’s testimony concerning his conversation with Stevens’ codefendant, Hill. The officer testified that he told Hill that he needed “a dime,” or $10 worth of cocaine. Id. at 829. At that point, Hill walked toward Stevens and yelled, “I need a dime.” Id. Stevens then reached into his pocket, grabbed a bunch of plastic baggies, and gave one to Hill. Id. Hill then returned to the officer with a bag of cocaine. Id. This court held that the admission of Hill’s statement, “I need a dime,” was proper because it was a “verbal act.” Id. The statement was not offered for the truth of the

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matter, but rather to explain Stevens’ actions in response to the statement, which established that he was involved in the crime itself. Id.

        As these cases demonstrate, a “verbal act” is a statement that is relevant because it explains some observed act by the defendant. Thus, for example, had Tranquilino told the CI that Antunes-Salgado would be accompanying her to the transaction, that statement would have been a “verbal act” because it would have served to explain Antunes-Salgado’s presence in the back seat of the truck and might have established his involvement in the transaction. However, none of the statements actually offered by the State at trial were relevant to explain any act by Antunes-Salgado. Instead, the statements are relevant only to prove the truth of the matter asserted in them; i.e., that Antunes-Salgado had an agreement with the codefendants to deliver cocaine to the CI. While the State contends that the statements were not hearsay because they were not offered to prove that Antunes-Salgado actually paid for his codefendants’ assistance, the State cannot point to any purpose for the admission of these statements other than to prove the truth of the matter asserted in them concerning an alleged agreement between Antunes-Salgado and the codefendants to deliver cocaine. “When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label.” Keen v. State, 775 So. 2d 263, 274 (Fla. 2000). Thus, the statements were not “verbal acts,” and defense counsel was ineffective for not objecting to their admission on this basis.

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        Having determined that defense counsel’s concession to the admissibility of these statements constituted ineffective assistance, we must next consider whether Antunes-Salgado was prejudiced by their admission. Here, it is clear that he was. Without these statements, the State’s only evidence to support a finding of a conspiracy was Antunes-Salgado’s presence in the vehicle at the time the transaction was supposed to occur and his possible constructive possession of the drugs in question. While these facts might establish that Antunes-Salgado was a principal to the transaction or aided and abetted the delivery, they are insufficient to establish a conspiracy. See, e.g., Chaparro, 873 So. 2d at 633; Mickenberg, 640 So. 2d at 1211; Baxter, 586 So. 2d at 1199. The “agreement” element of the conspiracy charge was established solely through the inadmissible hearsay statements of Antunes-Salgado’s codefendants. Therefore, the prejudice to Antunes-Salgado from the admission of these statements is patent.

        Moreover, this court cannot say that the improper admission of these statements was harmless as they relate to the trafficking conviction. To prove the trafficking offense, the State had to prove that Antunes-Salgado knowingly sold, purchased, manufactured, or delivered the cocaine or that he was knowingly in actual or constructive possession of it. § 893.135(1)(b)(1). Here, the State did present some evidence apart from the codefendants’ statements that would support a jury’s finding that Antunes-Salgado was in actual or constructive possession of the cocaine. However, that evidence was disputed at trial. Because of the disputes in the evidence and the sheer number of codefendants’ statements admitted into evidence, this court cannot say beyond a reasonable doubt that the admission of the statements did not

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have some effect on the jury’s determination of the trafficking charge. See State v. DiGuilio, 491 So. 2d 1129, 1138-39 (Fla. 1986) (holding that to establish harmless error, the State must prove beyond a reasonable doubt that the error did not contribute to the verdict and that to find an error harmless this court must be able to “say beyond a reasonable doubt that the error did not affect the verdict”). Therefore, on this record, we cannot say that the error was harmless as to that charge.

        Finally, having determined that counsel was ineffective and that AntunesSalgado was prejudiced, we must consider whether there was any conceivable tactical reason that would excuse the apparent ineffectiveness. Here, there is not. The record on appeal does not show that defense counsel sought any pretrial rulings excluding these hearsay statements. There are no written motions in limine filed and no transcripts of any pretrial hearings addressing the issue. Moreover, after jury selection and immediately before opening statements, defense counsel told the trial court that he believed that the codefendants’ statements were admissible but that he had not researched the issue and had not faced this situation previously. Thus, by his own admission, defense counsel made critical concessions favorable to the State without knowing or having fully researched the law or the accuracy of his interpretation of it. In other words, counsel conceded the admissibility of inadmissible statements that ultimately convicted his client without having researched the admissibility issue. Generally, important legal concessions are made after, not before, the applicable law is researched. Because defense counsel’s own statements establish that there was no reasonable strategic or tactical reason for his decision not to object, a hearing at which

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defense counsel would be required to reiterate his prior explanations would be a waste of judicial resources.

        Reversed and remanded for a new trial on both charges.

        WALLACE, J., Concurs.

        WHATLEY, J., Concurs in result only.

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

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Notes:

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Courtesy of David Edelstein

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        Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert H. Newman, Judge; L.T. Case No. 06-985CF10A.

        Carey Haughwout, Public Defender, and John Pauly, Jr. and Harris Printz, Assistant Public Defenders, West Palm Beach, for appellant.

        Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

        STONE, J.

        We reverse Michel’s conviction for simple battery. The face of the record demonstrates ineffective assistance of counsel arising out of the trial court’s failure to give an instruction on the justifiable use of non-deadly force. The record also shows that this failure was prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984).

        Michel was charged with aggravated battery. The charge arose out of a physical altercation between Michel and the victim, where the victim sustained cuts to the face and neck. Michel testified, asserting self-defense.

        The details of the fight were disputed, with Michel testifying that the victim started the fight and that in the course of the fight, which involved pushing and hitting, Michel saw the victim reach for something that looked like a knife. Michel said she believed the victim would use the knife and that Michel then grabbed something off the coffee table, an “eyebrow razor,” and said “you better let me go,” before cutting the victim.

        The initial jury instructions prepared b y th e state included instructions on both the justifiable use of non-deadly force and the justifiable use of deadly force, but the state questioned whether giving both would be appropriate. Defense counsel initially indicated that he wanted both instructions given. The court told the attorneys to “review them and see what you can come up with.” The state responded that it

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would not have a problem if defense counsel wanted to give both instructions. The self-defense instructions were not discussed further.

        During closing arguments, both counsel discussed the elements of the justifiable use of deadly force and whether deadly force was justified, because Michel was in reasonable fear for her safety.

        The jury instructions included an instruction for the lesser-included offense of simple battery. The instructions also included an instruction on the justifiable use of deadly force, but did not include an instruction on justifiable use of non-deadly force. No objections were made to the instructions. During deliberations, the jury requested a “full definition of aggravated battery and battery.” The judge responded by giving them a complete copy of the jury instructions. The jury found Michel guilty of the lesser-included offense of battery.

        Defense counsel filed a motion for new trial, acknowledging that he had agreed with the state and court to fundamental error by not requesting the inclusion of an instruction on the justifiable use of non-deadly force, which was “the Defendant’s only defense to the charge of simple battery.” During argument on the motion, defense counsel explained that “neither one of us recognized that it would have been a defense, [to] the simple battery. We chose to just give the self-defense use of deadly force.”

        We conclude that Michel’s ineffective assistance of counsel claim is apparent on the face of the record. Prejudice to Michel from trial counsel’s failure to request the instruction is apparent on the face of the record, as that failure essentially deprived Michel of a defense. See Aversano v. State, 966 So. 2d 493 (Fla. 4th DCA 2007).

        We recognize that ineffective assistance of counsel claims should rarely be raised on direct appeal because they are generally fact-specific. See Gore v. State, 784 So. 2d 418, 437-38 (Fla. 2001). However, such a claim can be raised where the face of the record demonstrates ineffective assistance of counsel. Bruno v. State, 807 So. 2d 55, 63 n.14 (Fla. 2001); see, e.g., Aversano, 966 So. 2d at 495 (ineffective assistance of counsel apparent on face of record based on failure to request a specific jury instruction).

        Under Florida law, a person is justified in using deadly force in self-defense when he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm or to prevent the imminent commission of a forcible felony. Cruz v. State, 971 So. 2d 178,

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182 (Fla. 5th DCA 2007). Non-deadly force may be used when and to the extent that a person reasonably believes that the use of force is necessary to defend himself or herself or another against the imminent use of unlawful force. Id. “Deadly force” is defined by statute as force likely to cause death or great bodily harm. Id. A defendant uses deadly force where the natural, probable, and foreseeable consequences of the defendant’s acts are death. Id. The focus is on the nature of the force used and not the end result.

        When the evidence presented at trial for battery does not establish, as a matter of law, whether the force used by the defendant was deadly or non-deadly, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force. Mathis v. State, 973 So. 2d 1153 (Fla. 1st DCA 2006), rev. denied, 954 So. 2d 1156 (Fla. 2007); Grimsley v. State, 939 So. 2d 123 (Fla. 2d DCA 2006). A deadly weapon, such as a knife, can be used without deadly force. DeLuge v. State, 710 So. 2d 83, 84 (Fla. 5th DCA 1988) (citing Howard v. State, 698 So. 2d 923 (Fla. 4th DCA 1997)).

        Here, the parties dispute the details of the altercation. By one view of the evidence, if believed by the jury, the force used did not amount to the use of deadly force. Accordingly, Michel was entitled to an instruction on the use of non-deadly force. See id.

        This court has recognized that it is patently unreasonable to fail to request an instruction that provides a legal defense to undisputed facts. Aversano, 966 So. 2d at 495. “A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.” Gregory v. State, 937 So. 2d 180, 182 (Fla. 4th DCA 2006) (citations omitted). We note that counsel’s candid admission, here, makes it clear that the omission was not a matter of strategy.

        Michel’s only defense to the lesser-included offense of simple battery was self-defense. Thus, the failure to request the instruction on the justifiable use of non-deadly force negated her only defense. The absence of this instruction was magnified when the jury requested a full definition of aggravated battery and battery, and the court responded by giving them a complete copy of the jury instructions, which included an instruction on the justifiable use of deadly force, but not the justifiable use of non-deadly force. Thus, even if the jury believed that Michel acted in self-defense, which there was evidence to support, they did not have the legal basis to find her not guilty of the simple battery.

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        Under these circumstances, the record demonstrates a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694; see also Mathis, 973 So. 2d at 1158.

        As both prongs of Strickland are satisfied, we reverse and remand for a new trial.

        FARMER and KLEIN, JJ., concur.

        Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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        Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Howard Zeidwig, Judge; L.T. Case No. 06-003247-DL.

        Carey Haughwout, Public Defender, and Elisabeth Porter, 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.

        MAY, J.

        A juvenile appeals an order revoking his probation and committing him to a high risk residential program with special conditions of DNA testing and a sex offender program. We affirm the revocation of probation, but find error in the disposition order and reverse.

        The State originally charged the juvenile with making a false fire alarm. The juvenile entered a guilty plea, and the trial court withheld adjudication and placed him on probation. Subsequently, the State filed a Petition for Violation of Probation, alleging the juvenile committed “the offense of Lewd Lascivious Exhibition and Exposure of Sex Organs . . . .” At the violation hearing, evidence and argument were presented regarding two incidents, the lewd and lascivious offense and a wholly separate uncharged offense of battery on a school employee. The trial court found the juvenile had violated his probation based on both offenses.

        The Department of Juvenile Justice (DJJ) filed a Pre-Disposition Report, noting two violations of probation. The Report recommended commitment to a moderate risk program followed by conditional release. The Report indicated a need for DNA testing and recommended the juvenile be placed in a residential environment for juvenile sex offenders.

        At the disposition hearing, the trial court announced that it would depart from DJJ’s recommendation. The trial court adjudicated the juvenile delinquent on the charge of making a false fire alarm, committed him to a high risk residential program, and ordered a sex offender

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program and DNA testing. The trial court indicated the reasons for the harsher disposition, including the juvenile’s sexually deviant behaviors. The court further explained that the juvenile’s twenty-nine disciplinary referrals at school since the violation hearing indicated the need to depart from the recommended disposition.

        The juvenile filed a motion to correct the disposition order, arguing that the trial court had failed to justify the need for the higher restrictiveness level. Th e juvenile then filed a second motion and requested the court to strike the higher level commitment program, the DNA testing, and the sex offender program from the disposition order. The motion raised the fact that the trial court had relied on the battery offense, which was not alleged in the violation, to revoke the juvenile’s probation. The motion also disputed the trial court’s reliance on pure hearsay to find a violation on the exposure allegation.

        The trial court denied the motions. In this appeal, the juvenile argues that the trial court erred in revoking his probation, enhancing the commitment level, and in ordering the special conditions.

        A court may not revoke a defendant’s probation for a violation not alleged in the affidavit of violation. Ray v. State, 855 So. 2d 1260, 1261 (Fla. 4th DCA 2003). Here, the record indicates that the charge of battery on a school employee was never alleged in the affidavit of violation of probation. Thus, the trial court erred in relying on that allegation in revoking the juvenile’s probation. However, because the State sufficiently proved the lewd and lascivious exhibition offense that was alleged in the affidavit of violation, reinstatement of the juvenile’s probation is unwarranted. Thomas v. State, 902 So. 2d 900, 900 (Fla. 4th DCA 2005). On remand, the uncharged violation should be stricken from the order of revocation. Id.

        The juvenile argues that the lewd and lascivious conduct offense was supported only by hearsay testimony. We disagree. The victim’s hearsay testimony — recounted by two separate witnesses — was corroborated by direct evidence of the juvenile’s behavior at the time of the incident, as well as of the victim’s immediate reaction to that behavior. This was sufficient evidence from which the trial court found that the juvenile had violated his probation. See Russell v. State, No. SC06-335, 33 Fla. L. Weekly S302 (Fla. May 1, 2008) (trial court correctly found defendant in violation of probation by considering more than just the victim’s hearsay statement). Thus, the trial court did not abuse its discretion in revoking the juvenile’s probation.

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        The errors in this case occurred in the disposition order rendered by the court. “A trial court’s decision to depart from the DJJ’s recommendation is reviewed under an abuse of discretion standard and must be supported by competent and substantial evidence.” A.W. v. State, 862 So. 2d 858, 859 (Fla. 4th DCA 2003). Although the trial court made a compelling case for the need of a structured environment, the court gave no explanation why the commitment level recommended by the DJJ was inadequate. K.R.T. v. State, 928 So. 2d 511, 512 (Fla. 1st DCA 2006) (reversing departure where the “evidence could not . . . support a finding that moderate-risk residential placement would not suffice to control and rehabilitate appellant”). For this reason, we reverse the commitment to a high risk residential program.

        Next, the juvenile correctly argues that the trial court did not have authority to order his placement in a sex offender program. While the conduct resulting in the violation of probation was of a sexual nature, the underlying offense was not. Therefore, the trial court erred in imposing this additional requirement in the disposition order. Sturges v. State, 980 So. 2d 1108 (Fla. 4th DCA 2008) (reversing “for resentencing without sexual offender probation” and providing that the trial court “may impose probation and special conditions of probation which reasonably relate to the underlying charges”).

        Additionally, the trial court erred in requiring DNA testing of the juvenile. Section 943.325, Florida Statutes (2007), requires any person convicted of certain enumerated offenses to submit to DNA testing. This provision “applies to juvenile offenders as well as adults.” A.M. v. State, 958 So. 2d 461, 464 (Fla. 2d DCA 2007). The new law violations charged in the violation of probation affidavit are among those enumerated in the DNA statute. § 943.325(1) (conviction of offenses in chapter 800). However, the juvenile was not adjudicated delinquent of an enumerated offense. He was adjudicated of the underlying charge of making a false fire alarm. This requirement must also be stricken from the disposition order.

        Reversed in part, affirmed in part, and remanded.

        Stevenson and GROSS, JJ., concur.

        Not final until disposition of timely filed motion for rehearing

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        An Appeal from the Circuit Court for Miami-Dade County, Peter Adrien, Judge, Lower Tribunal No. 03-25210.

        Woodward and Reizenstein, and Philip Reizenstein, for appellant.

        Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.

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

        RAMIREZ, J.

        George Davalos appeals the trial court’s order denying his motion to withdraw his plea or, in the alternative, mitigate his sentence. We reverse because

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the trial court imposed a much harsher sentence than that which resulted from the plea negotiations.

        The State of Florida charged Davalos with trafficking in cocaine, possession of cocaine, and possession of cannabis. Prior to jury selection, Davalos informed the trial court that he was considering a plea offer of seven years imprisonment with a seven-year drug trafficking minimum mandatory sentence. Following a recess, the trial court learned that Davalos had already rejected the offer.

        The trial court thereafter conducted a plea colloquy during which the court discussed the seven-year plea offer and whether Davalos qualified as a habitual offender. Davalos also conferred with defense counsel about the plea offer. During the court proceedings, a sidebar conference took place. Thereafter, the trial court determined that Davalos knowingly, intelligently, and voluntarily rejected the plea offer. The court made no habitual offender determination.

        The following day, the State withdrew the plea offer of seven-years and offered Davalos ten years. Defense counsel at this time expressed Davalos’ interest to plea open to the court, asked the court to indicate how it intended to sentence Davalos, and expressed concern over the State’s unexpected three-year plea offer increase in light of the fact that no new facts had emerged to merit the State’s increase. A sidebar conference immediately followed after which the court

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invited Davalos to plead to the court and affirmed that it would take “everything into determination” at sentencing. Davalos then pled guilty. The trial court engaged in a colloquy and determined that Davalos’ decision to enter his plea was made knowingly, intelligently, and voluntarily. The trial court accepted the plea.

        At the sentencing hearing, the trial court qualified Davalos as a habitual offender. The State argued that Davalos’ decision to reject the State’s plea offer, and then later decide to plead to the court, was an “attempt to gauge the system.” Defense counsel argued that it was improper for the trial court to take such matters into consideration during sentencing. The trial court agreed that it would be improper to punish someone based on their rejection of a plea offer.

        The trial court sentenced Davalos as a habitual offender to thirty years’ imprisonment for the trafficking charge with a seven-year mandatory minimum, five years for the possession of cocaine charge, and 364 days for the possession of cannabis, all sentences to run concurrent.

        Almost immediately after the imposition of the sentence, Davalos moved to withdraw his plea. In Davalos’ motion to withdraw his plea, he argued that his defense counsel, in front of his family, told him that based on her discussion at sidebar, the trial court judge was “more on [their] side” and that he should plead guilty. The trial court denied Davalos’ request to withdraw the plea. Davalos

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subsequently hired new counsel and again moved to withdraw his plea. The trial court denied Davalos’ motion.

        We do not agree that the trial court correctly denied Davalos’ motions to withdraw his plea. Florida Rules of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) provide for an appeal of a denial of a motion to withdraw a plea after the imposition of sentence if the defendant alleges that the plea was involuntary. The standard of review for a trial court’s denial of a motion to withdraw a plea is abuse of discretion. Wallace v. State, 939 So. 2d 1123, 1124 (Fla. 3d DCA 2006).

        On appeal, Davalos argues that his sentence was the product of judicial vindictiveness because the State offered him a sentence of seven years and then ten years, and the trial court sentenced him to thirty years after which he declined the offers. In response, the State argues that vindictive “is a term of art which expresses the legal effect of a given course of action, and does not imply any personal or subjective animosity between the court and the defendant.” Longley v. State, 902 So. 2d 925, 928 n.5 (Fla. 5th DCA 2005).

        However, “a `totality of circumstances’ review [is] more appropriate to determine if the defendant’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations.” Id. at 928. The Florida Supreme Court has used the totality of circumstances analysis in

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determining claims of judicial vindictiveness. See, e.g., Wilson v. State, 845 So. 2d 142, 155 (Fla. 2003).

        Under the totality of the circumstances in this case, the trial court’s denial of Davalos’ motions to withdraw his pleas constituted an abuse of discretion. This, in effect, violated Davalos’ right to due process. There is a huge disparity between the plea offers and the ultimate sentence imposed. This resulted in a prison term that was three times greater than the sentence offered Davalos in the first plea offer.

        We recognize that vindictiveness cannot be found on the length of the sentence alone. See, e.g., Blanco v. State, 849 So. 2d 381 (Fla. 3d DCA 2003); Nairn v. State, 837 So. 2d 519 (Fla. 3d DCA 2003). However, the record lacks any facts that could explain the reason for the increased sentence other than the fact that Davalos exercised his right to decline the plea offers. The facts of the case did not change in the twenty-four hour period during which Davalos changed his plea from not guilty to guilty. The Florida Supreme Court has found “that a prosecutor may offer to recommend a more lenient sentence or reduction in charges during the plea negotiation process, and that a prosecutor may threaten a defendant with increased charges if he or she does not enter a plea.” Wilson, 845 So. 2d at 150. It is thus highly unlikely that Davalos would change his plea in such a short period of time, unless he believed that he would receive a shorter sentence.

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        Furthermore, the record does not conclusively refute Davalos’ allegation that he entered his plea based upon his counsel’s promise of a seven-year sentence. The record reflects that the trial court held a sidebar conference after defense counsel advised the court that the prosecution no longer offered seven years and that she wanted Davalos to plead open to the court. The record also reflects that defense counsel thereafter spoke with Davalos and his family. Davalos’ plea followed.

        We therefore reverse the trial court’s denial of the motions to withdraw Davalos’ plea. We also remand the case with instructions for a new sentencing hearing before a different judge.

        Reversed and remanded.

        Not final until disposition of timely filed motion for rehearing.

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        An appeal from the Circuit Court for Duval County, John M Merrett, Judge.

        Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

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

        PER CURIAM.

        Joshua Holt, Appellant, appeals his conviction for armed robbery, arguing that the trial court erred by refusing to strike the jury after jurors were made aware of

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another robbery count pending against him. The State cross-appeals, arguing that the trial court erred in refusing to give portions of the standard jury instructions. We agree with both arguments. Accordingly, we reverse on both the appeal and cross appeal and remand for a new trial.

        Appellant was charged with two counts of armed robbery against two different victims. Appellant’s counsel moved to sever the counts, and the trial court denied the request. Before jury selection, but in the presence of the prospective jurors, the trial court stated that Appellant was charged with two counts of armed robbery: the first on August 9, 2006, against Michael Humphrey, Jr., and the second on or between August 8 and 9, 2006, against Jamaal Credle. Following jury selection, but prior to trial, the prosecutor informed the judge that the alleged victim of the robbery in count two was being represented by the public defender’s office in another matter, creating a conflict with Appellant’s representation. The prosecutor requested that Appellant be tried on count one only. The trial court reconsidered and granted Appellant’s motion to sever count two after the State withdrew its opposition to it. Appellant then moved to strike the jury panel on the grounds that the jury’s knowledge that he had been charged with two counts of armed robbery would be unfairly prejudicial to his defense. The trial court denied the motion to strike the jury. During trial, the judge asked the jurors whether they had any questions, and a juror asked why Appellant was

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only being tried on one count when the jury had been informed previously that there were two counts. The trial judge responded that the other count had been severed and that the jury was to consider only the remaining count before it.

        The State requested that the trial court give the standard jury instructions. The trial court declined to read two specific portions of the instructions. The trial court did not provide any reason for the decision to excise these portions of the standard jury instructions. The jury found Appellant guilty of armed robbery. This appeal follows.

        On direct appeal, Appellant argues that the trial court erred in denying his motion to strike the jury. Defendants have a constitutional right to a trial by an impartial jury. See Richardson v. State, 666 So. 2d 223, 224 (Fla. 2d DCA 1995). This right is lost when there is a possibility that jurors are unfairly prejudiced by the knowledge of additional charges against a defendant other than those being tried. See Jackson v. State, 729 So. 2d 947, 950 (Fla. 1st DCA 1998). In Jackson, we held that the trial court reversibly erred in inadvertently mentioning to the jury that the defendant was charged with four counts when two of the counts had been severed, even though the judge did not identify the counts. Id. Similarly, Pender v. State, 530 So. 2d 391, 393 (Fla. 1st DCA 1988), we held that the trial court erred by conducting trial by a jury who had been informed during voir dire that the defendant was charged with two counts of burglary and grand theft when the court subsequently

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severed the counts and proceeded on only one count of burglary and theft. Id. at 393-394.

        Appellant contends that the trial court’s error in refusing to strike the jury was not harmless under the State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986), harmless error test. The harmless error test requires the state to prove beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. Id. at 1135. In Pender, 530 So. 2d at 394, we held that the trial court’s error in failing to strike the jury was not harmless beyond a reasonable doubt under the DiGuilio standard. We recognized that, even though evidence of the defendant’s guilt was overwhelming, harmless error analysis does not re-weigh the sufficiency of the evidence but focuses on how the error affects the trier of fact. Id. at 394.

        Applying the harmless error test to the instant case, we cannot say beyond a reasonable doubt that the knowledge of an additional robbery charge against Appellant did not affect the jury’s verdict. See DiGuilio, 491 So. 2d at 1139. Jurors were informed that Appellant had been charged with two counts of armed robbery, against different victims, on potentially different days. Jurors could have assumed that because Appellant was charged with another robbery, he was the perpetrator of the robbery being tried as well. Appellant was deprived of his constitutional right to an impartial jury because of the possibility that jurors were unfairly prejudiced by

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their knowledge of Appellant’s other robbery charge. Therefore, Appellant is entitled to a new trial.

        On cross-appeal, the State argues that the trial court erred in deviating from the standard jury instructions. Florida Rule of Criminal Procedure 3.985 requires a trial judge who deviates from the standard jury instructions to “state on the record or in a separate order the respect in which the judge finds the standard form erroneous or inadequate and the legal basis of the judge’s finding.” A trial court’s obligation under this rule is mandatory. State v. Hamilton, 660 So. 2d 1038, 1045-46 (Fla. 1995) (citing Moody v. State, 359 So. 2d 557, 560 (Fla. 4th DCA 1978)). In the instant case, the trial court refused to give two different portions of the standard jury instructions without providing any reason. This was reversible error.

        Accordingly, we REVERSE and REMAND the appeal and cross appeal for a new trial consistent with this opinion.

        BARFIELD, WEBSTER, and LEWIS, JJ., CONCUR.

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

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        An appeal from the Circuit Court for Bay County, Glenn L. Hess, Judge.

        Luke Newman of Daley Law Office, P.A., Tallahassee, for Appellant.

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

        PER CURIAM.

        Appellant, Ronald A. Joseph, Jr., challenges his conviction and sentence after a second trial for leaving the scene of an accident involving death. Because the trial

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court sua sponte declared a mistrial without Appellant’s consent and absent a manifest necessity, Appellant’s retrial was barred by double jeopardy. We, therefore, reverse Appellant’s conviction and sentence.

        On the morning of the first day of the trial, the prosecutor informed defense counsel and the trial court that the audio recording of Appellant’s phone call to the police station after the accident had been inadvertently lost or destroyed. The prosecutor stated that she had a transcript of the phone call and that the two operators who took the call were available to authenticate the transcript. Defense counsel requested a Richardson^* hearing, arguing that he was prejudiced by the lack of an audio recording. Defense counsel stated that one of Appellant’s defenses was that he left the scene of the accident out of fear for his life and a written transcript would not allow the jury to hear Appellant’s voice inflection or intensity when he made the call. The prosecutor suggested that the operators would be able to testify as to Appellant’s demeanor. Defense counsel stated that an employee of the convenience store from which Appellant called the police personally observed Appellant make the phone call and would be able to testify as to Appellant’s demeanor, but neither defense counsel nor the state was able to locate the employee before the trial.

        Defense counsel moved for dismissal of the charge due to the prejudice the

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situation created for Appellant. The trial court refused to grant the motion, but agreed that the trial could not proceed that day even though the jury was sworn and ready to hear the case. The trial court sua sponte declared a mistrial. The court noted that the importance of the convenience store employee had been elevated due to the loss of the audio recording and that he needed to examine whether the loss of the recording prejudiced the defense.

        After the mistrial, Appellant filed a written motion to dismiss arguing that the trial court was required to dismiss the charge against him because there was no manifest necessity for the mistrial and the mistrial was declared without his consent. The trial court denied the motion finding that there was no way the trial could have proceeded that day. Appellant was later retried and found guilty of leaving the scene of an accident involving death and was sentenced to five years’ imprisonment. This timely appeal follows.

        When a jury has been discharged without consent of the defendant and without a manifest necessity, the discharge is the equivalent of an acquittal and retrial is prohibited. United States v. Jorn, 400 U.S. 470, 584 (1971); Dawson v. State, 979 So. 2d 1099, 1102 (Fla. 3d DCA 2008). A defendant’s silence or failure to object to an illegal discharge of a jury does not constitute consent to a declaration of mistrial and it does not waive a defendant’s constitutional protection against double jeopardy.

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Spaziano v. State, 429 So. 2d 1344, 1346 (Fla. 2d DCA 1983). Appellant did not clearly consent to the mistrial in this case.

        Moreover, the loss of the audio recording and the inability to locate a witness did not create a manifest necessity requiring a mistrial. “Manifest necessity arises because of some misfortune which, although the fault of neither party, renders continuation of the trial impossible.” Cohens v. Elwell, 600 So. 2d 1224, 1225 (Fla. 1st DCA 1992). Trial courts are required to evaluate and discuss possible alternatives before declaring a mistrial over the objection of a defendant. Id. at 1238; Dawson, 979 So. 2d at 1102 (“[W]hile the unavailability of a critical witness can create a manifest necessity which would allow for a mistrial, the trial court should consider reasonable alternatives that would mitigate the situation and preserve the continuity of the trial.”); C.A.K. v. State, 661 So. 2d 365 (Fla. 2d DCA 1995) (holding that a trial court must consider and reject all possible alternatives before declaring a mistrial over the objection of a defendant); Raszka v. Burk, 436 So. 2d 255, 257 (Fla. 4th DCA 1983) (holding that the doctrine of manifest necessity requires trial courts to not declare a mistrial until a scrupulous exercise of discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings). In this case, the trial court did not consider continuing the trial, or any other alternatives, to allow defense counsel time to depose the phone operators and to

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continue his search for the convenience store employee. Thus, a mistrial was unwarranted and Appellant’s subsequent retrial was barred.

        Accordingly, we reverse the denial of Appellant’s motion to dismiss and remand the case with instructions to discharge Appellant from the charges in this case.

        REVERSED.

        ALLEN, DAVIS, and HAWKES, JJ., CONCUR.

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

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Notes:

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        Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Eileen M. O’Connor, Judge, L.T. Case No. 89-14581 CF10A.

        Jorge Prieto, Miami, pro se.

        No appearance required for appellee.

        PER CURIAM.

        The appellant, Jorge Prieto, appeals the summary denial of his rule 3.850 motion to vacate his plea entered on August 10, 1989. He claims he is entitled to relief because the lower court failed to properly inform him of the possible immigration consequences related to the plea, as required under rule 3.172(c)(8). The lower court denied relief based on the belief that Prieto could not show sufficient prejudice, as he faced removal due to a second conviction in Miami-Dade County, citing State v. Oakley, 715 So. 2d 956 (Fla. 4th DCA 1998). We affirm the lower court’s order, but do so because the motion was untimely filed.

        According to his motion, Prieto entered his plea in this case on August 10, 1989. Prieto completed his sentence in this case and thereafter entered a plea in Miami-Dade County on an unrelated attempted first-degree murder charge. Nearly two years after the entry of his plea in the Miami-Dade case, the federal government served notice upon Prieto that he would face deportation due to the convictions in both the instant case and the Miami-Dade case. Prieto acknowledges he received this notice on October 17, 1995. Prieto challenged his Miami-Dade plea claiming he was not informed of the immigration consequences, but he did not file a similar motion challenging the Broward conviction, at least not until February 15, 2008.

        Prieto’s case is governed by our supreme court’s decision on violations of rule 3.172(c)(8), Peart v. State, 756 So. 2d 42 (Fla. 2000), receded from State v. Green, 944 So. 2d 208 (Fla. 2006). The court, in Peart, attempted to clarify the procedural and pleading requirements of such

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motions. The court announced that rule 3.850 was the proper vehicle to bring such claims, held that the two-year limitations period begins to run when “the defendant has or should have knowledge of the threat of deportation based on the plea,” and concluded that a defendant need not prove an acquittal is likely once the plea is withdrawn. The court specifically noted that, as it related to the limitations period, “defendants who gained knowledge of the threat of deportation prior to the filing date of this decision shall have two years from this decision to file a rule 3.850 motion alleging their claims for relief.” Peart, 756 So. 2d at 46. The opinion issued on April 13, 2000, thus giving all such defendants, including Prieto, until April 13, 2002 to timely seek relief. As noted above, Prieto, who was given notice of deportation by INS in 1995, did not seek relief under Peart, as to this case, until February 2008.

        In Green, the supreme court recognized the time frame set forth in Peart was not functioning as intended. “[O]ur review has alerted us to larger problems in applying Peart fairly, efficiently, and with adequate regard for finality.” Green, 944 So. 2d. at 210. After a detailed analysis, the supreme court receded from Peart and held:

        ”A motion seeking to withdraw a plea on grounds that the trial court did not advise the defendant of the possibility of deportation will be held to the same time constraints as other postconviction motions raising other claims under rule 3.850. These claims must be brought within two years of the date that the judgment and sentence . . . become final.”

        Green, 944 So. 2d at 218.

        The Green court recognized the application of this new limitations period may severely impact the due process rights of some litigants, and therefore, announced an exception. “[I]n the interest of fairness, defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today.” Id. at 219. This exception applied because the holding in Green “reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8).” Id. The supreme court did not announce any intent to allow defendants to revive an already stale claim, but rather closed a loophole that resulted in a scenario where a defendant could not file a sufficient claim under Peart, and would be unable to file a timely claim under Green.

        Recently, this court addressed a similar situation that required an interpretation of Green‘s expanded limitations period. See Pena v. State,

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980 So. 2d 542 (Fla. 4th DCA 2008). Therein, Pena filed a timely rule 3.850 motion in 2000, under Peart, but voluntarily withdrew the motion while seeking a change in citizenship status through the federal government. When th e federal authorities denied the change in citizenship status, Pena re-filed his rule 3.850 motion in 2007, this time claiming he was timely under Green. We rejected this interpretation, citing Markland v. State, 971 So. 2d 832 (Fla. 3d DCA 2007), and concluded Green did not revive a claim that existed under Peart, but expired prior to the issuance of Green. We apply this same interpretation here, noting Prieto had a viable and timely claim under Peart from April 2000 through April 2002. When the time expired to seek relief under Peart, Prieto’s claim was extinguished and was not revived by Green.

        Affirmed.

        KLEIN and DAMOORGIAN, JJ., concur.

        HAZOURI, J., concurs specially with opinion.

        HAZOURI, J., concurring specially.

        While I concur that the timeliness issue is determinative, I write to point out an anomaly that I believe needs some attention. As noted above, the lower court denied relief based upon our holding in State v. Oakley, in which we held that a defendant cannot show sufficient prejudice if he or she is otherwise removable due to some other conviction. While generally that doctrine would seem to apply to Prieto, I am concerned that logic would work against such an application. The trial and appellate courts have already used that doctrine to deny relief as it related to the Miami-Dade plea, holding the conviction in this case, in Broward County, would prevent a sufficient showing of prejudice in the Miami-Dade case. The lower court herein, also applied Oakley by claiming Prieto could not show sufficient prejudice due to the presence of the Miami-Dade conviction. The “Catch-22″ implications should be obvious. Where a defendant makes a claim that two separate pleas were involuntary as a result of a lack of immigration warnings, Oakley should not be used to deny both motions, unless a third conviction would make the defendant otherwise removable. To use Oakley in such a way, as the lower courts did in the Broward case and the Miami-Dade case, would prevent such a defendant from challenging either plea, even if both pleas would be involuntary due to a violation of rule 3.172(c)(8). I acknowledge this conclusion does not alter our decision in the instant case, as Prieto’s instant motion was untimely, but recommend that future courts, if presented with a similar situation, fashion a method of review that

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upholds the principles of Green, provided some other procedural bar does not prevent a review on the merits.

        Not final until disposition of timely filed motion for rehearing.

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        Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Leroy H. Moe, Judge, L.T. Case No. 08-6744 13.

        Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for petitioner.

        No appearance for respondent.

        PER CURIAM.

        In a case in the county court, Voong Leng was charged with trespass after warning at the Seminole Classic Casino. The case was assigned to Judge Joseph Murphy on January 24, 2008. Six days later,¹ the state moved to disqualify the judge based on comments he made in a prior case concerning the Seminole Tribe and its right to enforce state laws on its property. The state argued that the comments would lead a reasonable person to believe that the victim in the case, the Seminole Indian Tribe, would not receive a fair trial or hearing. The state also argued that the judge’s comments showed bias by appearing to give advice to opposing counsel as to how to handle the case. With its motion, the state provided transcripts in another case involving the Seminole Tribe where Judge Murphy granted the state’s motion for disqualification.

        Judge Murphy denied the motion on January 30, 2008. The state timely sought prohibition relief in the circuit court. To support its petition, the state cited to two circuit court cases where different circuit judges had granted prohibition on identical grounds. However, in this

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case yet another circuit court judge denied the petition.

        We review the circuit court’s ruling in this case by certiorari. See Sutton v. State, 908 So. 2d 1073 (Fla. 2008). With regard to the scope of review, we

        can only grant a petition for writ of certiorari based on a departure from the essential requirements of law. A departure from the essential requirements of law is not mere legal error, but instead, involves a “gross miscarriage of justice.” Due to its discretionary nature, a district court of appeal may refuse to grant certiorari relief even if there is legal error which could be argued to be a departure from the essential requirements of law.

        Id. at 1080-81 (internal citations omitted).

        We grant the petition and quash the order of the circuit court. The motion to disqualify was legally sufficient, in that it alleged facts which “would cause the movant to have a well-grounded fear that he or she will not receive a fair trial at the hands of the judge.” State v. Shaw, 643 So. 2d 1163, 1164 (Fla. 4th DCA 1994). The trial judge previously granted a motion to disqualify on identical grounds. See Walls v. State, 910 So. 2d 432 (Fla. 4th DCA 2005). Two different circuit court judges granted writs of prohibition on identical grounds. Where the grounds for disqualification of a county judge are met and disqualification may be required in many cases, it is a manifest injustice for disqualification to turn on the identity of the circuit court judge to whom a writ of prohibition is assigned.

        POLEN and GROSS, JJ., concur.

        FARMER, J., dissents without opinion.

        Not final until disposition of timely filed motion for rehearing.

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Notes:

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        Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 05-8274 CF10B.

        Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

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

        SHAHOOD, C.J.

        Appellant, Gerald Muir, together with codefendant, Antonio Palmer, was charged with attempted murder in the first degree. Appellant and the codefendant were found guilty of the lesser included offense of attempted murder in the second degree.

        Appellant urges the trial court reversibly erred in refusing to allow him to submit defense evidence as to the reputation of the victim in this case for truth and veracity in the community. We agree and reverse and remand for a new trial.

        At trial, the defense called Christopher Jones, who testified that he had lived in the same neighborhood as appellant for five years. Jones knew the victim “[t]hrough the neighborhood. I know people who know him. I’ve seen him a few times, but I really like stay out of his way or whatever.” He had “known of” appellant “for maybe like two years” but was not a friend of his. The defense then requested to ask Jones questions about the victim’s reputation in the community and the trial court permitted appellant to make an offer of proof outside the jury’s presence.

        During the proffer, Jones reiterated that he had “seen [appellant] around like two years, I’ve known of him for two years.” Jones was not sure if he and the victim knew the same people. Defense counsel then questioned the witness:

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        Q: Do you know what Mr. Ward’s reputation is in your neighborhood for truth or dishonesty or honesty?

        A: It’s pretty bad.

        Jones elaborated as follows:

        Because from what I know of Mr. Ward, the reason I said I know of him and I like to stay out of his way is because it’s like if you know him, he’s like, you know, he’s the type of person who was like always into something and always like a control freak or something, like tries to have control over everyone or everything. He wants to bogart things.

        Jones clarified that he was using the term “bogart” to mean bully. Jones next offered the following:

        DEFENSE COUNSEL: Mr. Jones, do you know of any specific instances where Mr. Ward was untruthful or dishonest?

        A: Yeah, he got shot before in the same neighborhood and I know people was like, he was dishonest on that because the guy he was trying to bully, another guy, he was dishonest and saying things about the guy.

        ….

        He was like dishonest because it was like people say he took money for the case and he tried to like lie on the dude or something.

        As this court stated Palmer v. State, 978 So. 2d 282 (Fla. 4th DCA 2008), concerning appellant’s codefendant Palmer:

        This was sufficient to allow the jury to consider the victim’s reputation for truth and veracity in the community. Though other questions were raised by the State following this exchange, attempting to undermine the predicate for Mr. Jones’s opinion, those questions went to the weight of the testimony and would have been properly raised on cross-examination by the State.

        Id. at 283.

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        As in Palmer, this could not be considered harmless error, as only Ward himself identified appellant as one of the people who shot him. The entire defense was based on the victim’s credibility as to his identification of appellant as the shooter.

        Because we are reversing and remanding for a new trial, we decline to address all other issues raised.

        Reversed and Remanded For New Trial.

        Klein and DAMOORGIAN, JJ., concur.

        Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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        Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 00-18459CF10B.

        Frank Jackson, Okeechobee, pro se.

        Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

        WARNER, J.

        The appellant, Frank Jackson, moved for postconviction relief on six grounds. The trial court summarily denied them all, and Jackson appeals the denial of four of the grounds. We affirm as to all but one claim. We conclude that the record does not conclusively refute his claim that his counsel was ineffective in misadvising him regarding the maximum sentence he could receive, which caused him to reject a very favorable plea offer from the state. On this issue, we reverse.

        ”A claim that misinformation supplied b y counsel induced a defendant to reject a favorable plea offer can constitute actionable ineffective assistance of counsel.” Steel v. State, 684 So. 2d 290, 291 (Fla. 4th DCA 1996). The supreme court has set forth a three-part test to apply when examining whether trial counsel was effective in instances where a plea agreement has been offered by the state. Cottle v. State, 733 So. 2d 963, 967 (Fla. 1999). A prima facie case of ineffective assistance of counsel based on the rejection of a plea offer is made if a defendant proves: “(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State’s plea offer would have resulted in a lesser sentence.” Id. (emphasis added).

        Here, Jackson sets forth a facially sufficient claim of ineffective assistance. Jackson alleges that counsel misinformed him by advising him that the maximum sentence was fifteen years, instead of the thirty years he actually faced. He alleges that he would have accepted the

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state’s plea offer of five years but for counsel’s misadvice. Instead, after conviction, he was sentenced to thirty years. Ortiz v. State, 882 So. 2d 1057 (Fla. 4th DCA 2004) (legally sufficient claim where defendant alleged that had he known he could be sentenced as a PRR, he would have accepted the more favorable plea offer); Wright v. State, 892 So. 2d 1209 (Fla. 5th DCA 2005) (legally sufficient claim where defendant asserted that had counsel not misadvised him as to the maximum sentence, he would have accepted the state’s plea offer); Reed v. State, 903 So. 2d 344 (Fla. 1st DCA 2005) (same).

        As Jackson’s claim is not conclusively refuted by the record, we reverse and remand for the trial court to attach portions of the record refuting the claim or to hold an evidentiary hearing.

        POLEN and TAYLOR, JJ., concur.

        Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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