Florida Criminal Law Opinions

 

Robert Earl Reeves, Appellant,
v.
The State of Florida, Appellee. 

No. 3D08-427.

 

District Court of Appeal of Florida, Third District.

 

Opinion filed July 30, 2008.

 

        An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge, Lower Tribunal No. 92-33574.

        Robert Earl Reeves, in proper person.

        Bill McCollum, Attorney General, and Heidi Milan-Caballero, Assistant Attorney General, for appellee.

        Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

        ROTHENBERG, J.

        The defendant, Robert Earl Reeves, appeals the trial court’s summary denial of his amended motion to correct an illegal sentence in case number 92-33574, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm. The defendant claims that he did not receive all of the credit for time served, taking into consideration time he served in the county jail prior to sentencing, time he served in state prison, and gain time. The defendant’s argument, however, rests upon credit he allegedly earned on cases pre-dating his conviction in case number 92-33574. Credit for time served in these earlier cases (case numbers: 89-39944, 90-11502, 90-11504, and 90-40526), however, is irrelevant in the computation of the defendant’s sentence in case number 92-33574, as the sentence in 92-33574 was ordered to run consecutive to the sentences imposed in case numbers 90-11502, 90-11504, and 90-40526, and the defendant had already completed his sentence in case number 89-39944 when the sentence was imposed in case number 92-33574.

        If the defendant believes that he was not awarded the correct credit for time served, gain time, or provisional release credit in case numbers 90-11502, 90-11504, and 90-40526, he must first exhaust his administrative remedies. See Milne v. State, 807 So. 2d 725, 726 (Fla. 4th DCA 2002); Smith v. State, 706 So. 2d 356 (Fla. 1st DCA 1998). If the defendant is unsuccessful, he may file a motion in the circuit court of Miami-Dade County pursuant to Florida Rule of Criminal

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Procedure 3.800 to address his entitlement to any additional credit for time served in the county jail, and/or seek relief in the circuit court of Leon County by way of a petition for a writ of mandamus to address his entitlement to any additional gain time or provisional release credits. Bush v. State, 945 So. 2d 1207, 1215 (Fla. 2006), the Florida Supreme Court held:

        (1) the proper remedy for a prisoner to pursue in challenging a sentence-reducing credit determination by the Department, where the prisoner has exhausted administrative remedies and is not alleging entitlement to immediate release, continues to be a mandamus petition filed in circuit court; (2) the proper venue for a prisoner’s challenge to a sentence-reducing credit determination by the Department, where the prisoner has exhausted administrative remedies and is not alleging entitlement to immediate release, continues to be in circuit court in Leon County, where the Department is located . . . .

        As the defendant’s motion was filed under case number 92-33574 only, he failed to allege an improper calculation of the time served in that case, and he has failed to allege or to provide any documentation that he has exhausted his administrative remedies, we affirm the trial court’s order without prejudice to the defendant to seek the appropriate remedy in the correct jurisdiction after he has exhausted his administrative remedies.

        Affirmed.

        Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

 

KEVIN DAVIS, Appellant,
v.
STATE OF FLORIDA, Appellee. 

No. 4D08-1015.

 

District Court of Appeal of Florida, Fourth District.

 

July 30, 2008.

 

        Appeal of order denying rule 3.850 from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Peter M. Weinstein, Judge, L.T. Case No. 04-5668 CF10A.

        Kevin Davis, Bristol, pro se.

        No appearance required for appellee.

        POLEN, J.

        This is an appeal from the trial court’s order summarily denying appellant’s motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850. Appellant raised nine separate grounds that trial counsel was ineffective. We affirm all grounds without comment, with the exception of ground eight. As to this claim, appellant asserted counsel was ineffective for failure to investigate and call alibi witnesses. We find appellant’s claim facially insufficient, but remand to the trial court to grant leave to amend.

        While appellant was on probation, he was arrested for his involvement in a burglary. During the subsequent violation of probation hearing, appellant was adjudicated guilty and sentenced to ten years in prison. Appellant then filed this timely motion for post-conviction relief. Appellant alleged in this motion, inter alia, that trial counsel was deficient for failing to interview or call alibi witnesses once the probation violation hearing commenced. Appellant’s motion was silent as to the witness’s identity, substance of testimony, availability to testify or the prejudicial effect of the witness failing to testify. As such, we find appellant’s claim facially insufficient. See Nelson v. State, 875 So. 2d 579, 581-84 (Fla. 2004); Stringer v. State, 757 So. 2d 1226, 1226-27 (Fla. 4th DCA 2000).

        Spera v. State, 971 So. 2d 754 (Fla. 2007), however, the supreme court held such insufficient claims should be dismissed with leave to amend, if the petitioner can do so, to provide the necessary allegations. Accordingly, we reverse in part the lower court’s order denying relief and

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remand to the lower court with leave to amend ground eight within a specific period of time, as outlined in Spera.

        FARMER and HAZOURI, JJ., concur.

        Not final until disposition of timely filed motion for rehearing

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GERALD SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee. 

No. 4D08-1272.

 

District Court of Appeal of Florida, Fourth District.

 

July 30, 2008.

 

        Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Pedro E. Dijols, Judge, L.T. Case Nos. 02-552 CF10A and 02-3518 CF10A.

        Gerald Smith, Carrabelle, pro se.

        No appearance required for appellee.

        WARNER, J.

        The appellant challenges the trial court’s denial of his motion to correct a n illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). All of his claims revolve around his contention that his sentences for carjacking with a deadly weapon and aggravated battery with a deadly weapon are illegal because the state charged that he carried a pellet gun which is not a deadly weapon. As the issue is one of fact, it is not the proper subject of a rule 3.800(a) motion, and by pleading to the charge appellant waived his right to contest the deadliness of the weapon.

        Whether a pellet gun could be a deadly weapon would have been an issue for the jury to decide if appellant had gone to trial. Dale v. State, 703 So. 2d 1045 (Fla. 1997); Jones v. State, 869 So. 2d 1240, 1242 (Fla. 4th DCA 2004); Moore v. State, 903 So. 2d 341 (Fla. 1st DCA 2005); Santiago v. State, 900 So. 2d 710, 711-12 (Fla. 3d DCA 2005). An object may be a deadly weapon if it is used or threatened to be used in a way that is likely to produce death or great bodily harm or if by its nature it is something likely to produce death or great bodily harm when used as designed. Moore, 903 So. 2d at 342-43; State v. Walthour, 876 So. 2d 594, 597 (Fla. 5th DCA 2004). By entering his plea, appellant waived his right to have a jury decide this issue and he has not shown that his sentence is illegal.

        POLEN and FARMER, JJ., concur.

        Not final until disposition of timely filed motion for rehearing.

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

Case No. 4D07-1326.

 

District Court of Appeal of Florida, Fourth District.

 

Opinion filed July 30, 2008.

 

        Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No. 2004CF009254AXXXMB.

        Barbara J. Scheffer, Palm Beach Gardens, for appellant.

        Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.

        KLEIN, J.

        We reverse appellant’s conviction of attempted second degree murder because the court erred in admitting appellant’s conversations in which he solicited an undercover officer to kill the victim and another witness. These conversations, which were made after he was arrested and had retained counsel, violated appellant’s Sixth Amendment right to counsel.

        While appellant was an inmate following his arrest for attempted second degree murder, he tried to arrange, through a cellmate, to have the victim and a witness killed. Through the cellmate appellant was placed in touch with an undercover officer who was represented to be a hit man, and solicited the officer to commit murder. Although the solicitation was not the charge in this trial, the trial court, over appellant’s objection, admitted taped conversations involving the solicitation and alleged killings of the victim and witness by the hit man.

        Massiah v. United States, 377 U.S. 201 (1964), the Court held that incriminating statements elicited by a government agent outside the presence of counsel cannot be admitted in evidence. United States v. Henry, 447 U.S. 264 (1980), interpreted Massiah to require suppression of statements made to a jail-house informant who was placed by the state in the same cell as the defendant and instructed to be alert to any incriminating statements made by the defendant. U.S. v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990) (court suppressed statements by a defendant to an undercover informant, even though the government’s alleged purpose was to investigate an unrelated crime not involving the defendant.)

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        Because appellant was represented by counsel, his statements to the undercover officer were not admissible. Neither was appellant’s gun, which was discovered through these statements. We find no merit to the other issues raised, except for the issue arguing that the solicitation became a feature of the trial, but that issue is now moot.

        Reversed for a new trial.

        TAYLOR and DAMOORGIAN, JJ., concur.

        Not final until disposition of timely filed motion for rehearing.

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Michael Siebert, Appellant,
v.
The State of Florida, Appellee. 

No. 3D07-120.

 

District Court of Appeal of Florida, Third District.

 

Opinion filed July 30, 2008.

 

        An Appeal from the Circuit Court for Miami-Dade County, Peter Adrien, Judge, Lower Tribunal No. 03-8538.

        Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

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

        Before WELLS, ROTHENBERG, and LAGOA, JJ.

        WELLS, Judge.

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        Siebert appeals from his convictions and sentences for battery, armed kidnapping, armed sexual assault and robbery, claiming that the trial court erred in admitting testimony regarding his flight from the police. We affirm, because even if admitting such testimony was error, the overwhelming weight of the remaining evidence, which includes Siebert’s confession, recovery of his DNA from the rape victim’s clothing,¹ and the rape victim’s positive identification of him as the person who kidnapped and raped her,² establishes that there is no reasonable possibility that the flight evidence contributed to the conviction and that error, if any, in admitting this testimony was harmless beyond a reasonable doubt. See Conde v. State, 860 So. 2d 930, 949 (Fla. 2003) (finding that error in admitting evidence of the defendant’s flight at time of arrest was harmless beyond a reasonable doubt); Moore v. State, 701 So. 2d 545, 550 (Fla. 1997) (“Error is harmless where `there is no reasonable possibility that the error contributed to the conviction.’ State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986).”).

        Affirmed.

        Not final until disposition of timely filed motion for rehearing.

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Notes:

 

1. Seibert did not ejaculate during intercourse, but afterward on the victim’s clothing.

 

 

2. The victim identified Seibert as the individual who, at knife point and in broad daylight, abducted her and her children and who, throughout an afternoon, repeatedly forced her to perform oral sex and have intercourse while in the presence of her children.

 

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GABRIEL BARRIER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1551.

District Court of Appeal of Florida, Fourth District.

July 29, 2008.

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case No. 04-8678 CF10A.

Gabriel Barrier, Bushnell, pro se.

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

PER CURIAM.

Gabriel Barrier appeals the denial of his rule 3.800(a) motion which sought credit for time Barrier previously served in this case. Barrier filed the instant motion within two years of the imposition of his sentence, and the motion is properly sworn, meaning this court may consider it as having been filed in accordance with rule 3.850. See Autrey v. State, 736 So. 2d 94, 94 (Fla. 4th DCA 1999).

Barrier was arrested in Broward County for one count of burglary and sentenced to two years of probation on July 13, 2005. On November 23, 2005, he was arrested in Miami-Dade County for one count of strong-arm robbery. While in Miami-Dade County Jail, Broward County issued an arrest warrant for violation of probation. On January 18, 2006, Barrier, who was already in Miami-Dade County Jail, was arrested pursuant to the Broward County warrant. Barrier completed his sentence for the Miami-Dade County charge on September 2, 2006. However, he remained in Miami-Dade County Jail until September 13, 2006, when he was transferred to Broward County Jail. On October 17, 2006, the Broward County trial court revoked Barrier’s probation and sentenced him to three years in Florida State Prison. The trial court granted Barrier 36 days of credit for the time he spent in Broward County Jail awaiting his sentencing.

Barrier asserted he is entitled to an additional 239 days of credit for the time he served in Miami-Dade County from January 18, 2006, to September 13, 2006. The record indicates Barrier was arrested while in custody in Miami-Dade County on the Broward County warrant on

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January 18, 2006. Additionally, Barrier was transferred to the Broward County Jail on September 13, 2006. On the record before us, Barrier is entitled to the additional credit for the time period between January 18 and September 13, 2006. See Trout v. State, 927 So. 2d 1052, 1054 (Fla. 4th DCA 2006) (stating that defendant is entitled to credit for time served when he has been arrested pursuant to a warrant from another county) (citations omitted).¹

We reverse and remand for the trial court to correct Barrier’s sentence, giving him the appropriate jail time credit consistent with this opinion.

Reversed and Remanded for Further Proceedings.

GROSS, STEVENSON and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. The Miami-Dade County Jail booking report reflects that Barrier completed his Miami-Dade County sentence on September 2, 2006. He was not transferred to Broward County Jail until September 13, 2006, meaning there was “a period of time when he was incarcerated in Miami-Dade solely on the Broward charges.” Martinez v. State, 940 So. 2d 1277, 1278 (Fla. 4th DCA 2006).

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Courtesy of David Edelstein

STEVEN MORRIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D07-3069

District Court of Appeal of Florida, Fifth District.

Opinion filed July 25, 2008

Appeal from the Circuit Court for Brevard County, Meryl L. Allawas, Judge.

James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

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

LAWSON, J.

Steven Morris appeals from his convictions and sentences for driving under the influence of alcohol (“DUI”), within ten years after a prior DUI conviction in violation of section 316.193(2)(b)1., Florida Statutes (2006), and driving while license suspended or revoked (“DWLS”), in violation of section 322.34(2)(a), Florida Statutes (2006). On appeal Morris argues that the trial court erred by permitting the prosecutor to present arguments, over defense counsel’s objection, that improperly commented on his right to remain silent and improperly shifted the burden of proof to him. We agree and reverse.

Relevant FactsIn the early morning hours of March 8, 2007, Morris drove his Ford SUV off of a curved road in a residential neighborhood in Merritt Island, Florida, and into a palm tree in someone’s front yard. The noise alerted neighbors to the crash, many of whom came out to investigate. One of the neighbors also called law enforcement.

At trial, the State called two neighbors and three law enforcement witnesses. The lay witness in whose front yard Morris’ SUV rested did not testify that he smelled alcohol on Morris’ breath, and stated that he was not really paying attention to whether Morris was impaired. He did not notice Morris acting in a belligerent manner, or cussing at the law enforcement officers who arrived, but did see Morris lose his balance several times. The other lay witness was a nurse who lived nearby and examined Morris for potential head trauma when she arrived on the scene. She testified that Morris’ breath smelled of alcohol and that he spoke with a stumbling, slowed speech pattern that was “not normal.” However, this witness did not testify to other indications of impairment, and did not see Morris cussing at or acting belligerently toward the officers.

By contrast, the officers all testified that Morris’ was extremely combative and abusive, cussing and spitting at them; that his speech was “slurred;” that his eyes were blood-shot and glassy; and that he was stumbling and off-balance to the point that he could not stand. According to the officers’ testimony, Morris refused to perform any field sobriety exercises, refused to take an alcohol breath test, and informed the officers of his refusal in no uncertain terms with his strong expletives, such as “f*** you.”

Based upon these observations, one officer testified that it was his opinion that Morris was impaired. This was the officer who was tasked with conducting the DUI investigation and who made the decision to arrest Morris for DUI at the scene. The

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second officer testified only that Morris was “possibly under the influence,” and stated that he was not sure because they “didn’t do any testing” due to Morris’ refusal. The third officer was not asked to opine on the issue of Morris’ impairment.

During the defense’s closing, counsel argued that it was not illegal for a person to drive after consuming alcohol unless the person had consumed enough that he or she was actually impaired. He then argued that the State did not have any evidence to prove that Morris was impaired — no breath or blood tests, no field exercises — nothing to show impairment beyond a reasonable doubt.

In response, the State argued that there was obvious evidence of Morris’ impairment including slurred speech, bloodshot eyes, stumbling, and driving his car into a tree. The prosecutor ended his closing by arguing that an innocent man would not refuse to perform field sobriety exercises or a breath test. As part of this argument, the prosecutor also stated that an innocent man, if arrested would say, “I haven’t been drinking, why are you arresting me?” Then, the prosecutor added that an innocent person would also volunteer to take the tests to “prove” his or her innocence, stating, “That [innocent] man is thinking, yes, get me to that, get me to that instrument, let me take that breath test, let me prove this officer wrong.” The defense objected to these comments. At a bench conference that followed, the prosecutor claimed that he was simply presenting “a hypothetical.” The trial court overruled the objection and the prosecutor concluded his closing argument.

Applicable LawThe Fifth Amendment to the United States Constitution provides, in part, that no person “shall be… compelled in any criminal case to be a witness against himself….” U.S. Const., Amend 5. To give effect to this clause, it is well-settled that “courts must

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prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the [defendant's] right of silence.” Smith v. State, 681 So. 2d 894, 895 (Fla. 4th DCA 1996) (citing State v. Smith, 573 So. 2d 306, 317 (Fla. 1990)).

However, the Fifth Amendment bar against compelled “communications” or “testimony” generally does not encompass a bar against “compulsion which makes a suspect or accused the source of `real or physical evidence[.]‘” Schmerber v. California, 384 U.S. 757, 764 (1966). Accordingly, “both federal and state courts have usually held that [the Fifth Amendment] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Id. Therefore, when a law enforcement officer has probable clause to believe that an accused has committed a DUI offense, the officer can lawfully compel the person to perform field sobriety exercises and a breath test. Id.; State v. Taylor, 648 So. 2d 701 (Fla.1995) (holding that Taylor’s refusal was not elicited in violation of the Fifth Amendment privilege against self-incrimination and “that the refusal is probative of the issue of consciousness of guilt”); State v. Busciglio, 976 So. 2d 15 (Fla. 2d DCA 2008) (holding that a refusal to submit to a breath test is not compelled testimony protected by the Fifth Amendment). If the accused refuses, the State at trial can elicit testimony regarding that refusal as evidence of the person’s consciousness of his or her guilt. Id.

In doing so, however, “the state cannot comment on a defendant’s failure to [voluntarily] produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant had the burden of introducing evidence.” Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991); see also, Concha v. State, 972 So. 2d 996 (Fla. 4th DCA 2008).

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AnalysisIt should be clear from our summary of the law that no Fifth Amendment protection barred the prosecutor in this case from arguing to the jury that Morris’ refusal to perform the field sobriety exercises and submit a breath sample evidenced consciousness of guilt. It should be just as clear that the prosecutor (1) violated Morris’ Fifth Amendment rights when he argued that an innocent person would speak up and protest his innocence and (2) improperly shifted the burden of proof by arguing that an innocent person would volunteer to take a breath test to prove his or her innocence. Irrespective of whether the prosecutor was discussing a “hypothetical innocent person,” he was telling the jury that they should infer Morris’ guilt from the fact that he did not speak up and did not take other affirmative steps to prove his innocence. Clearly, the objection to these patently impermissible comments should have been sustained. Because the State has failed to prove beyond a reasonable doubt that these errors did not contribute to the verdict,¹ we reverse and remand for a new trial.

REVERSED and REMANDED.

PLEUS and COHEN, JJ., concur.

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Notes:

1. “The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” See State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986) (citing Chapman v. California, 386 U.S. 18, 24 (1967)).

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STATE OF FLORIDA, Appellant,
v.
JAVONTE L. WIMBERLY, Appellee.

Case No. 5D07-3444

District Court of Appeal of Florida, Fifth District.

Opinion filed July 25, 2008

Appeal from the Circuit Court for Orange County, Julie H. O’Kane, Judge.

Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellee.

ORFINGER, J.

The State of Florida appeals an order suppressing cannabis and statements, both of which were obtained following a police stop of the vehicle in which Javonte L. Wimberly was a passenger. Because it appears that the trial court applied an incorrect standard in its evaluation of the legality of the traffic stop, we reverse for further consideration.

Wimberly was charged by information with several offenses, including possession of cannabis within 1,000 feet of a place of worship with intent to sell or deliver. Wimberly sought to suppress the seized cannabis and his incriminating statements made to the police on the grounds that “the law enforcement officer did not have a founded suspicion that [Wimberly] was engaged in criminal activity” and the alleged minor traffic infraction “was a pretext for an otherwise invalid stop.”

At the suppression hearing, two police officers testified that they conducted a traffic stop of the vehicle in which Wimberly was a passenger because they believed that the vehicle’s windows were illegally tinted. During the stop, the officers confirmed Wimberly’s identification and the existence of an outstanding warrant for his arrest for a probation violation. Wimberly was taken out of the car, placed in handcuffs and searched. A small baggie of cannabis was found in his pocket. He was then read his Miranda rights, and placed in the back of the patrol car. Due to the smell of cannabis coming from the vehicle and the cannabis found on Wimberly, the officers searched the vehicle. During their search, the officers found a red Christmas tin in the backpack of a child, who was sitting in the backseat of the vehicle, containing between 70 and 80 grams of cannabis. Wimberly admitted that he, not the driver, owned the drugs. The officers gave the driver a citation for the illegal window tint.¹

Wimberly’s testimony at the suppression hearing significantly conflicted with the officers’ testimony. He testified that as he was leaving an apartment complex with the driver and her two children, the police shined a light through their car’s partially open

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windows. He denied all of the officers’ allegations, specifically, that he claimed ownership of drugs or knew that he had an outstanding warrant for violation of probation. Likewise, he did not remember the officer finding a baggie of cannabis in his pocket when he was searched. Of particular significance to this appeal, Wimberly also presented the testimony of Ronald Holmes, the owner of the shop where the vehicle’s windows were tinted. Holmes testified that he installed a legal 35% auto window tint on the vehicle Wimberly occupied about five months prior to Wimberly’s arrest.

After considering the evidence, the court granted the motion to suppress, concluding that because the window tint was legal, the police had no basis to stop the car. More specifically, the court ruled:

The central issue presented in Defendant’s Motion to Suppress Warrantless Stop, Search, Seizure, and Arrest is whether law enforcement had a legal basis to stop the vehicle [that] Mr. Wimberly was occupying because of illegal tint on the vehicle’s windows. Both officers testified that they believed the tint was too dark and therefore illegal, forming the basis for their traffic stop, which ultimately led to the arrest of Mr. Wimberly. Mr. Holmes, [the] owner of Loco Customs, Inc., testified that he installed legal tint on the subject vehicle several months before the traffic stop. The court heard no testimony that would give it any reason to believe that some other tint was present on the vehicle at the time of the traffic stop.

The Court finds that the testimony of Mr. Holmes, the only independent witness, more credible and persuasive than the other witnesses, and concludes based upon his testimony that the vehicle did not have illegal tint on its windows at the time of the traffic stop. Thus, law enforcement had no legal basis to conduct a traffic stop on the vehicle.

(Emphasis added). On appeal, the State argues that the officers had a reasonable suspicion to believe that a traffic infraction was being committed, and as a result, had a lawful basis to stop the vehicle Wimberly occupied.

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A challenged motion to suppress frequently presents mixed questions of law and fact for consideration by the reviewing court. McMaster v. State, 780 So. 2d 1026, 1028 (Fla. 5th DCA 2001) (citing Lester v. State, 754 So. 2d 746 (Fla. 1st DCA 2000)). Findings of fact made by the trial court are subject to the substantial competent evidence standard. Ikner v. State, 756 So. 2d 1116, 1118 (Fla. 1st DCA 2000). The application of the law by the trial court, however, is reviewed de novo. McMaster, 780 So. 2d at 1028; State v. Ramos, 755 So. 2d 836 (Fla. 5th DCA 2000); see Ornelas v. United States, 517 U.S. 690 (1996); Porter v. State, 765 So. 2d 76, 77 (Fla. 4th DCA 2000). On review, the trial court’s ruling enjoys a presumption of correctness, and the evidence and all reasonable inferences drawn from it are interpreted in a manner most favorable to sustaining the ruling. See Connor v. State, 803 So. 2d 598, 605 (Fla. 2001); Murray v. State, 692 So. 2d 157, 159 (Fla. 1997); Caso v. State,, 524 So. 2d 422, 424 (Fla. 1988).

Generally, a traffic stop is reasonable under the Fourth Amendment “where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996). An officer’s subjective intentions play no role in Fourth Amendment analysis. Id. at 813. Holland v. State, 696 So. 2d 757 (Fla. 1997), the Florida Supreme Court receded from its earlier decision State v. Daniel, 665 So. 2d 1040 (Fla. 1995), in light of Whren, finding that the United States Supreme Court had “rejected the reasonable officer test in favor of a strict objective test which asks only whether any probable cause for the stop existed.” Holland, 696 So. 2d at 759. Thus, the issue in this case is whether the officers had probable cause to believe

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that the windows of the car in which Wimberly was riding were illegally tinted, not whether the windows were actually illegally tinted.

A traffic stop based on an officer’s incorrect but reasonable assessment of the facts does not violate the Fourth Amendment. Saucier v. Katz, 533 U.S. 194, 205 (2001); United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003). If an officer makes traffic stop based on a mistake of fact, the court must determine whether the officer’s mistake of fact was reasonable. Great deference is given to the judgment of trained law enforcement officers “on the scene.” See Saucier, 533 U.S. at 205-06 (discussing excessive force claims while noting that excessive force and probable cause determinations are subject to same Fourth Amendment analysis). “The principal components of a determination of reasonable suspicion or probable cause will be… viewed from the standpoint of an objectively reasonable police officer….” Ornelas, 517 U.S. at 696. “[W]hat is generally demanded of the many factual determinations that must regularly be made by agents of the government… is not that they always be correct, but that they always be reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 185 (1990). An officer’s mistake of fact may provide the objective basis for reasonable suspicion or probable cause under the Fourth Amendment because of the intensely fact-sensitive nature of reasonable suspicion and probable cause determinations. See Ornelas, 517 U.S. at 695-96. Consequently, an officer’s mistake of fact does not necessarily render his actions unreasonable, because what is reasonable will be dependent on the specific circumstances presented by each case. Chanthasouxat, 342

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F.3d at 1276.² To hold otherwise would force police to determine conclusively whether a violation had occurred before they have probable cause to investigate it. Such a standard would be more expansive than the Fourth Amendment, which limits only “unreasonable” searches and seizures.

It appears to us that the trial court concluded that because the window tint was legal, the traffic stop was illegal, requiring suppression of the drugs and statements. That is not the standard to be used by the court. Accordingly, we reverse for further consideration.³

REVERSED and REMANDED for further proceedings.

PLEUS and EVANDER, JJ., concur.

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Notes:

1. Sections 316.2951-.2956, Florida Statutes (2007), provide that it is a noncriminal traffic infraction to operate a motor vehicle on which sunscreening material has been applied to the side or rear windows, which has the effect of altering the windows’ transparency beyond specified limits.

2. The same would not be true with respect to an officer’s mistake of law. A number of state and federal courts have held that an officer’s mistake of law as to what constitutes a traffic violation, no matter how reasonable, cannot provide objectively reasonable grounds for probable cause. See, e.g., Chanthasouxat, 342 F.3d at 1279; Hilton v. State, 961 So. 2d 284, 294 (Fla. 2007).

3. On remand, if the court determines that the officers did not have probable cause to stop the vehicle, it must determine whether Wimberly’s arrest pursuant to a warrant was an intervening circumstance sufficient to break the chain of illegality. See State v. Frierson, 926 So. 2d 1139 (Fla. 2006).

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Courtesy of David Edelstein

ARTHUR LEE JOHNSON, Petitioner,
v.
OFFICE OF THE STATE ATTORNEY, ETC., Respondents.

Case No. 5D08-710

District Court of Appeal of Florida, Fifth District.

Opinion filed July 25, 2008.

Petition for Writ of Quo Warranto, A Case of Original Jurisdiction.

Arthur Lee Johnson, Sanderson, pro se.

No Appearance for Respondents.

COHEN, J.

Arthur Lee Johnson filed a petition for writ of quo warranto challenging the validity of his 1974 convictions for robbery. Johnson alleges that the state attorney and judge, elected officials who presided over his cases, did not submit an Oath of Office as required by article II, section 5(b) of the Florida Constitution (1973). As a result, Johnson argues that his judgments and sentences were null and void because these elected officials lacked the authority of their office, and thus the subject matter of the court was never properly invoked. Because of its increasing popularity, we write to explain why a writ of quo warranto is not a proper method to obtain postconviction relief.

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Quo warranto is “[a] common-law writ used to inquire into the authority by which a public office is held or a franchise is claimed.” Black’s Law Dictionary 1285 (8th ed. 2004). It is properly used to challenge the “power and authority” of a constitutional officer. Crist v. Fla. Ass’n of Criminal Defense Lawyers, Inc., 978 So. 2d 134, 139 n.3 (Fla. 2008) (quoting Austin v. State ex rel. Christian, 310 So. 2d 289, 290 (Fla. 1975)). The supreme court Geffken v. Strickler, 778 So. 2d 975, 976 n.1 (Fla. 2001), passed upon a quo warranto petition challenging a conviction and sentence, but specifically declined to express an opinion on whether quo warranto was an appropriate method to seek postconviction relief. We believe it is not.

Challenges to the authority of the prosecuting authority or presiding judge, while not commonplace, are not unknown. Sawyer v. State, 113 So. 736 (Fla. 1927), the defendant argued that his trial was null and void because the assistant solicitor was not authorized to sign an information. This argument was first raised in a motion to vacate the judgment with the trial court¹ and the denial of that motion was part of the direct appeal. Id. at 742. The supreme court concluded that the defendant waived this argument because he failed to raise it before the judgment and sentence were entered. Id. The supreme court stated, “Neither the common law nor our statutes favor the policy of a defendant in waiting until the last stage of the cause and attacking such defects by a motion in arrest of judgment, the granting of which would have the effect of unraveling (sic) the whole proceeding.” Id. at 745.

Card v. State, 497 So. 2d 1169 (Fla. 1986), a visiting judge presided over the defendant’s trial without obtaining an official assignment from the chief justice of the

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supreme court, as required by article V, section 2(b) of the Florida Constitution. As a result, the defendant argued that his conviction was void and sought to vacate the judgment pursuant to Florida Rule of Criminal Procedure 3.850. Id. at 1173. In rejecting this argument, the supreme court noted that the visiting judge was acting as a de facto judge and that the defendant waived this argument because he failed to object to the visiting judge presiding over his case. Id. Applying the same rationale utilized in Sawyer, the supreme court stated:

The requirement that an objection to the authority of a de facto judge be timely made is not unique to our jurisdiction and is based upon sound principles of public policy. Our holding in Sawyer, regarding the requirement of a timely objection when challenging the authority of a de facto officer applies with equal force when challenging the authority of a de facto judge.

Id. at 1174.

Not only must a challenge to the authority of a judge or prosecutor be timely, but it also must be brought by a direct quo warranto proceeding. Ordinarily, this should first be presented to the circuit court. State ex rel. Vance v. Wellman, 222 So. 2d 449, 449 (Fla. 2d DCA 1969). Carey v. State, 349 So. 2d 820 (Fla. 3d DCA 1977), the defendant challenged, on direct appeal, the denial of his motion to dismiss on the ground that the assistant state attorney lacked the legal authority to sign the information. The court refused to pass upon this argument, stating “The law is clear in this state that when the power and authority of an assigned state attorney is tested, it should be done in direct proceedings by quo warranto, and not by appeal.” Id. at 822. Noting that it saw no reason why a quo warranto proceeding could not have been utilized, the court concluded that the defendant waived his right to have this argument

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reviewed on appeal. Id.; see also Snead v. State, 415 So. 2d 887, 890 (Fla. 5th DCA 1982).

In the case at bar, Johnson attempts to have his robbery convictions set aside thirty-four years after he was found guilty. However, his allegation that both the state attorney and trial judge did not properly file an Oath of Office were matters that could and should have been brought in a direct quo warranto proceeding. A quo warranto petition does not properly form the basis of a direct appeal. Carey, 349 So. 2d at 822. Furthermore, a defendant may not utilize the extraordinary writ of quo warranto as a postconviction safety net to challenge the authority of the prosecuting authority or judge when the outcome of the trial was not as he expected or hoped for. Consequently, Johnson has waived the right to complain of these defects and may not now challenge his convictions either by direct appeal or a postconviction petition for writ of quo warranto. See Card, 497 So. 2d 1169; Carey, 349 So. 2d 820.

Accordingly, Johnson’s Petition for Writ of Quo Warranto is DISMISSED.

GRIFFIN and MONACO, JJ., concur.

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Notes:

1. The motion was filed after the expiration of the term of court during which Sawyer was tried and sentenced.

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Courtesy of David Edelstein

NICKLAUS JARRYD PRITCHARD, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D07-2607.

District Court of Appeal of Florida, Fifth District.

Opinion filed July 25, 2008

Appeal from the Circuit Court for Marion County, David B. Eddy, Judge.

James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

The appellant, Nicklaus Jarryd Pritchard, seeks review of his judgment and sentence that was imposed on a number of drug related charges, positing that the trial

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court abused its discretion by denying his motion to suppress evidence.¹ We disagree and affirm.

A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness, and a reviewing court must interpret the evidence and reasonable inferences and deductions that may be drawn from it in the manner most favorable to sustaining the ruling. See Doorbal v. State, 837 So. 2d 940, 952 (Fla.), cert. denied, 539 U.S. 962 (2003); Pagan v. State, 830 So. 2d 792 (Fla. 2002), cert. denied, 539 U.S. 919 (2003); San Martin v. State, 717 So. 2d 462, 468 (Fla. 1998), cert. denied, 526 U.S. 1071 (1999); Davis v. State, 922 So. 2d 438, 443 (Fla. 5th DCA 2006). While the test to be applied to factual findings of the trial court in this regard is whether competent, substantial evidence supports those findings, the trial court’s application of the law to the facts is reviewed de novo. Utu v. State, 929 So. 2d 718 (Fla. 5th DCA 2006); Houston v. State, 925 So. 2d 404 (Fla. 5th DCA), review denied, 935 So. 2d 1220 (Fla. 2006).

In the present case the State presented testimony to the effect that Mr. Pritchard consented to the search. Mr. Pritchard disagreed, and raised a number of other issues connected to the seizure of the drugs that formed the basis of the charges. As the warrantless search in question was, however, not preceded by any police misconduct, the State was only required to prove by a preponderance of evidence that Mr. Pritchard’s consent was voluntarily given. See Hicks v. State, 852 So. 2d 954, 960 (Fla. 5th DCA 2003). When determining whether such consent is freely and voluntarily given,

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we are required to consider the totality of circumstances surrounding the events at the time that the purported consent was obtained. Id.

In the present case the trial judge made credibility assessments at the suppression hearing that were not favorable to Mr. Pritchard’s position with respect to either the search or the seizure. Absent unusual conditions and occurrences, an appellate court will ordinarily defer to these assessments. See Taylor v. State, 937 So. 2d 590, 599 (Fla. 2006). The trial court is in a far superior position to judge credibility based on its capacity to observe the bearing and demeanor of the witnesses. Id. As a consequence, the specific circumstances surrounding the search of Mr. Pritchard’s residence, when measured in light of the credibility assessments made by the trial court, compel us to conclude that the search was validly conducted. Accordingly, we affirm.

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

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Notes:

1. Mr. Pritchard pled nolo contendere to the charges after the trial court agreed that the suppression issue was dispositive.

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Courtesy of David Edelstein