Florida Criminal Law Opinions

        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.

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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.

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