Florida Criminal Law Opinions

3.800 Appeal from the Circuit Court for Putnam County, Edward E. Hedstrom, Judge.

Michael T. Deering, Lake City, pro se.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Michael T. Deering appeals from the summary denial of his rule 3.800(a)¹ motion to correct an illegal sentence. Deering was convicted in 1977 of robbery with a firearm and sentenced to imprisonment “at hard labor” for the term of his natural life. The trial court properly denied Deering’s claim that his life sentence was illegal because it was an indefinite sentence, Alvarez v. State, 358 So. 2d 10 (Fla. 1978), or because it constituted cruel and unusual punishment. See, e.g., Blackshear v. State, 771 So. 2d 1199 (Fla. 4th DCA 2000). However, the trial court improperly denied Deering’s claim that the statutes in effect at the time of his sentencing did not authorize the imposition of a sentence “at hard labor.” See Harris v. State, 902 So. 2d 292 (Fla. 3d DCA 2005); Zygadlo v. State, 676 So. 2d 1015 (Fla. 5th DCA 1996). Therefore, we reverse the trial court’s order as to this point and remand with directions that the court strike the “hard labor” condition in Deering’s sentence. In all other respects, the trial court’s order is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SAWAYA, PLEUS, and LAWSON, JJ., concur.

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Notes:

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Courtesy of David Edelstein

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Petition for Writ of Mandamus, Stephen Rushing, Respondent Judge.

Gary C. Quilling, Florida City, pro se.

Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.

MONACO, J.

The petitioner, Gary C. Quilling, seeks the issuance of a writ of mandamus in order to obtain rulings on his amended and supplemental rule 3.850 motions and on his various motions with respect to public records. Because it appears that these motions have not yet been ruled on by the trial court, we grant the petition. Some explanation, however, is required.

Mr. Quilling was charged and convicted by jury of robbery with a deadly weapon and aggravated assault with a deadly weapon. Both offenses arose out of the robbery of a restaurant. He was sentenced to a term of life imprisonment for the robbery, and a concurrent term of fifteen years imprisonment for the aggravated assault. His direct appeal was affirmed per curiam without written opinion. See Quilling v. State, 907 So. 2d 1179 (Fla. 5th DCA 2005).

Mr. Quilling then filed a rule 3.800(a) motion in the trial court in which he argued that his sentence was illegal. The trial court denied the motion, and this court affirmed. See Quilling v. State, 940 So. 2d 548 (Fla. 5th DCA 2006). He subsequently filed a rule 3.850 motion consisting of 379 pages of text and 306 pages of attachments and exhibits in which he set forth nine claims and numerous sub-claims. He later filed an amendment to the motion containing an additional 110 pages and seven additional exhibits and attachments in which he raised three additional claims. The trial court dismissed Mr. Quilling’s motions and supplements without prejudice to his filing an amended motion not to exceed fifty pages. After the movant’s motion for rehearing was denied, he filed a motion for extension of time and for extension of the page limit in order to file a supplemental rule 3.850 motion. At the same time (July 18, 2007), Mr. Quilling also filed an amended rule 3.850 motion consisting of 50 pages in which he raised ten issues. A short time later (July 27, 2007), he filed a “supplemental” motion consisting of eleven pages and raising additional issues and sub-issues. The trial court denied the motion for extension of time and for extension of length, but did not address the July 18th and July 27th amended motion and supplemental motion.

Meanwhile, Mr. Quilling filed a notice of appeal directed to the order earlier entered in which the trial court dismissed his motions and supplements and limited his refiling to a motion not exceeding fifty pages. This court dismissed the appeal without prejudice, concluding that Mr. Quilling was attempting to have us review a non-appealable non-final order. See Quilling v. State, 968 So. 2d 1034 (Fla. 5th DCA 2007). To confuse matters even further, Mr. Quilling also filed a petition alleging ineffective assistance of appellate counsel, which we also denied. See Quilling v. State, Case No. 5D07-2693.

The case presently before us was commenced by Mr. Quilling’s filing of a petition for mandamus seeking, among other things, a ruling on his July 18, 2007, amended 3.850 motion and on his July 27, 2007, supplemental 3.850 motion. We suspect that the reason the trial court did not rule on these motions is that in the midst of this blizzard of paperwork generated by Mr. Quilling, his mid-stream appeal of the non-final non-appealable order caused significant confusion. In any event, the State agrees that these two motions have not yet been ruled upon by the trial court, and that Mr. Quilling is entitled to a ruling on them.

Mr. Quilling also seeks to have the trial court rule on numerous motions to compel the production of public records sought by him. The State responded below by filing responses from the Hernando County Sheriff’s Office indicating that it has already complied with these requests or that the documents sought are not in their possession. Apparently, however, the State Attorney has not responded to the requests made to it by Mr. Quilling. So far as we can tell, the trial court has not yet addressed the motions to compel addressed to these public records requests.

In summary, it appears to us that the trial court has not disposed of Mr. Quilling’s July 18, 2007 amended rule 3.850 motion, his July 27, 2007 supplemental rule 3.850 motion, nor his September 14, 2007, October 12, 2007 and February 26, 2008 motions to compel/public records requests. The failure to act on these motions is entirely understandable in light of the confusion created by Mr. Quilling’s numerous, voluminous and convoluted filings. We accordingly grant the petition and point out the need for the trial court to address these filings, but withhold the issuance of the writ of mandamus with confidence that the court will expeditiously dispose of these pending items.

PETITION GRANTED.

PLEUS and TORPY, JJ., concur.

Courtesy of David Edelstein

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Appeal from the Circuit Court for Orange County, Lawrence R. Kirkwood, Judge.

Robert Wesley, Public Defender, and Rosemarie Farrell, General Counsel, Office of the Public Defender, Orlando, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Helen Brewer Fouse, Assistant Attorney General, Tampa, for Appellee, State of Florida.

Jack E. Holt, III, and T’anjuiming A. Marx, of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellee, Florida Hospital.

PLEUS, J.

Wanda McKinney appeals a circuit court’s order subjecting her to six months of additional involuntary mental health treatment. McKinney was originally picked up by police at the Orlando airport where she was found in an agitated state and appeared to be suffering from mental health problems. The police took her to the psychiatric unit at Florida Hospital to have an involuntary psychiatric evaluation done pursuant to the Baker Act.¹ Based on the examination, Florida Hospital filed a petition for involuntary inpatient placement to request involuntary psychiatric care at Florida Hospital in Orlando. Under Florida’s Mental Health Act, section 394.467, Florida Statutes (2007), the circuit court is required to make the initial mental health determination and, in this case, the circuit court found that McKinney was in need of treatment and committed her to involuntary treatment for a three week period. At the end of the three week period, McKinney had not responded to treatment. The hospital administrator petitioned for a hearing to order continued treatment, the circuit court held a hearing, and the court determined six additional months of treatment were warranted. McKinney argues that the circuit court did not have jurisdiction to order the continued treatment.

Especially where it addresses hearings for continued involuntary inpatient treatment, section 394.467 is not a model of clarity. However, based on a full reading of the statute, it is clear that the procedure followed by the circuit court in this case comports with the Legislature’s intent. Stated succinctly, the facts of this case are that the circuit court initially ordered a short-term treatment period and, when McKinney did not improve, the court committed her to a longer treatment period at a state-run mental health facility. For the reasons discussed below, because the initial three week treatment period was short-term treatment at a receiving facility, the circuit court retained jurisdiction to order further treatment.

Although the statute indicates that hearings for continued involuntary treatment are to be administrative, the circuit court retains concurrent jurisdiction over the involuntary commitment proceedings. When the statute is read in its entirety, it is clear that the Legislature’s intent was that the administrative hearing requirement applies after a patient is committed to a long-term treatment period at a treatment facility.

Section 394.467, Florida Statutes, governs involuntary inpatient placement. After setting out in subsection (1) the criteria for involuntary inpatient placement, the statute next provides that a person meeting the criteria can be admitted to involuntary care:

(2) ADMISSION TO A TREATMENT FACILITY.— A patient may be retained by a receiving facility or involuntarily placed in a treatment facility upon the recommendation of the administrator of a receiving facility where the patient has been examined and after adherence to the notice and hearing procedures provided in s. 394.4599. The recommendation must be supported by the opinion of a psychiatrist and the second opinion of a clinical psychologist or another psychiatrist, both of whom have personally examined the patient within the preceding 72 hours, that the criteria for involuntary inpatient placement are met….

If a party is determined to meet the criteria for commitment, the facility administrator should file a petition with the court to seek involuntary placement:

(3) PETITION FOR INVOLUNTARY INPATIENT PLACEMENT.— The administrator of the facility shall file a petition for involuntary inpatient placement in the court in the county where the patient is located….

Subsections (4) and (5) address the right to counsel and hearing continuances, respectively. Subsection (6) provides that the court shall hold the hearings for involuntary placement and specifically grants the circuit court authority to order involuntary treatment for a six month period: (6) HEARING ON INVOLUNTARY INPATIENT PLACEMENT.—

(a)1. The court shall hold the hearing on involuntary inpatient placement within 5 days, unless a continuance is granted….

2. The court may appoint a general or special magistrate to preside at the hearing….

….

(b) If the court concludes that the patient meets the criteria for involuntary inpatient placement, it shall order that the patient be transferred to a treatment facility or, if the patient is at a treatment facility, that the patient be retained there or be treated at any other appropriate receiving or treatment facility, or that the patient receive services from a receiving or treatment facility, on an involuntary basis, for a period of up to 6 months. The order shall specify the nature and extent of the patient’s mental illness. The facility shall discharge a patient any time the patient no longer meets the criteria for involuntary inpatient placement, unless the patient has transferred to voluntary status.

(Emphasis added). Finally, subsections (7)(a) and (b) require that any petitions for involuntary inpatient treatment beyond those ordered by the circuit court shall be administrative in nature:

(7) PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT TREATMENT.—

(a) Hearings on petitions for continued involuntary inpatient placement shall be administrative hearings and shall be conducted in accordance with the provision of s. 120.57(1), except that any order entered by the administrative law judge shall be final and subject to judicial review in accordance with s. 120.68.

(b) If the patient continues to meet the criteria for involuntary inpatient placement, the administrator shall, prior to the expiration of the period during which the treatment facility is authorized to retain the patient, file a petition requesting authorization for continued involuntary inpatient placement. The request shall be accompanied by a statement from the patient’s physician or clinical psychologist justifying the request, a brief description of the patient’s treatment during the time he or she was involuntarily placed, and an individualized plan of continued treatment.

(Emphasis added). The remainder of subsection (7) addresses the procedures to be followed by the administrative law judge hearing the petition for continued treatment.

McKinney argues that the language in subsection (7) regarding continued involuntary inpatient treatment divests the circuit court of jurisdiction over continued treatment, no matter how short the initial treatment period might be. In other words, she argues that any hearing for continued treatment must be an administrative hearing even if it follows a very brief initial commitment period. We disagree for several reasons.

Although subsection (7)(a) references administrative hearings, this does not mean that the circuit court relinquishes jurisdiction. Liebman v. State, 555 So. 2d 1242 (Fla. 4th DCA 1989), the Fourth District addressed the argument that it was unconstitutional for an administrative hearing officer to order continued involuntary placement under section 394.467. Liebman recognized that a circuit court must make the initial incompetency determination. Id. at 1243. This is so because article V, section 20, of the Florida Constitution provides that the circuit courts “shall have exclusive original jurisdiction… of proceedings relating to… the determination of incompetency.” Liebman, 555 So. 2d at 1244 (quoting the Florida Constitution). However, the Legislature can establish commissions or grant administrative officers quasi-judicial power in matters connected with the functions of their office. Id. at 1243 (quoting article V, section 1, of the Florida Constitution). Thus, administrative agencies can have jurisdiction over continued involuntary placement proceedings “so long as a circuit court makes the initial determination.” Id. at 1243. However, as the Fourth District recognized, “Such jurisdiction can be exercised concurrently with the original, nonexclusive jurisdiction given to circuit courts over the same matters.” Id. at 1244 (emphasis added).

Liebman addressed the confusion surrounding the administrative hearing requirement. In 1971, section 394.467 provided that a hearing officer should hear petitions for continued hospitalization. Id. at 1245. In 1972, the Legislature passed section 26.012, Florida Statutes, “which provided that the circuit court should have exclusive original jurisdiction of proceedings relating to involuntary hospitalization and the determination of incompetency.” Id. (internal quotations omitted) Finally, in 1978, section 394.467 was amended to provide that the mandates of section 120.57 must be followed in hearings for continued involuntary hospitalization — reaffirming that the Legislature “inten[ded] to have hearings on continuation of involuntary hospitalization handled under the APA.” Id. However, most importantly for the instant matter, the Fourth District again recognized the continuing jurisdiction of the circuit court: “[H]earing officers assigned pursuant to section 394.467(7), Florida Statutes, (1987), have concurrent jurisdiction with the circuit court to conduct hearings on petitions for continuation of involuntary hospitalization.” Id. (emphasis added). Because the circuit court retains concurrent jurisdiction, the question becomes: When can the circuit court exercise its concurrent jurisdiction and when should an administrative hearing be held? A full reading of the statutory scheme reveals that the Legislature did not intend for the administrative hearing requirement to apply until a person has been committed to long-term involuntary treatment.

Under this statutory scheme, there is a distinction between a “receiving facility” such as Florida Hospital, and a “treatment facility.” Section 394.455(26), Florida Statutes (2007), defines a “receiving facility” as “any public or private facility designated by the department to receive and hold involuntary patients under emergency conditions or for psychiatric evaluation and to provide short term treatment.” (Emphasis added). Section 394.455(32) defines a “treatment facility” as:

[A]ny state-owned, state-operated, or state-supported hospital, center, or clinic designated by the department for extended treatment and hospitalization, beyond that provided for by a receiving facility, of persons who have a mental illness, including facilities of the United States Government, and any private facility designated by the department when rendering such services to a person pursuant to the provisions of this part.

As referenced above, subsection 394.467(7)(a) provides that hearings for continued involuntary treatment should be administrative, but does not itself distinguish between receiving and treatment facilities. However, rule 65E-5.300(1), Florida Administrative Code, which implements the statute, does distinguish between the two:

In order to request continued involuntary inpatient placement, the treatment facility administrator shall, prior to the expiration of the period during which the treatment facility is authorized to retain the person, file a request for continued placement…. The petition shall be filed with the Division of Administrative Hearings within 20 days prior to the expiration date of a person’s authorized period of placement or, in the case of a minor, the date when the minor will reach the age of majority.

(Emphasis added). This rule fully comports with the language in subsection 394.467(7)(b) which, in discussing petitions for continued involuntary inpatient treatment, references placement in “the treatment facility.” The administrative rule, consistent with subsection (7)(b) requires an administrative petition only where the patient is in a state-sanctioned treatment facility — the agency gains jurisdiction at that point. The quasi-judicial exercise of power by the administrative officer is constitutional in such a situation because the Florida Constitution allows such power in connection with the functions of the administrative offices. Liebman, 555 So. 2d at 1243.

In this case, the initial treatment ordered for McKinney was at Florida Hospital, where she received her initial psychiatric evaluation and short-term, three week inpatient treatment. Florida Hospital fits the statutory definition of a receiving facility. Thus, when the administrator of this receiving facility filed a petition for continued involuntary placement, the receiving facility administrator was not required to file with DOAH under Rule 65E-5.300 — the rule, consistent with subsection 394.467(7)(b), only requires “treatment facility” administrators to do so. More importantly, because the treatment ordered was short-term, the circuit court properly exercised jurisdiction to order further treatment. However, once long-term treatment is ordered, a petition for continued treatment must be addressed in an administrative hearing under section 394.467.²

Finally, we observe that absurd results would flow from acceptance of McKinney’s position. Requiring administrative hearings following court-ordered periods of short-term initial treatment makes little sense. As a practical matter, in this case, Florida Hospital would have had to file a petition for continued treatment under rule 65E-5.300 the day immediately after McKinney’s placement in inpatient care. McKinney was involuntarily committed for three weeks, or twenty-one days. Rule 65E-5.300 provides that the petition for continued treatment must be filed twenty days prior to the expiration of the hospitalization period. The petition, therefore, would have to be filed on her second day of commitment. The entire purpose of having short term commitment is to commit a person for as short a period as possible.³ If a patient responds to initial treatment, there is no need to continue. If a petition for continued treatment were required one day after admittance into a receiving facility, there would be no opportunity to observe whether treatment is working and/or whether further treatment might be necessary. Ultimately, a short-term three week initial hospitalization period could never be ordered as a practical matter. Such a result clearly conflicts with the stated “intent of the Legislature that the least restrictive means of intervention be employed based on the individual needs of each person.” § 394.453, Fla. Stat.

Where a person is committed to short-term treatment, the circuit court may properly exercise its concurrent jurisdiction over the involuntary commitment proceedings. Where such treatment becomes long-term, administrative hearings are required. In this case, the circuit court properly exercised its concurrent jurisdiction to re-visit its initial order for short-term commitment.

Accordingly, we affirm.

AFFIRMED.

MONACO, J., and EARP, J., Associate Judge, concur.

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Notes:

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Courtesy of David Edelstein

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Appeal from the Circuit Court for Volusia County, James R. Clayton, Judge.

James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Edwin E. Cox, III, appeals from his conviction and sentence on the charge of felony battery pursuant to section 784.03(1) and (2), Florida Statutes (2007).¹ The jury was originally instructed on the crime of aggravated battery on a pregnant person pursuant to section 784.045(1)(b), Florida Statutes, but returned a verdict of guilty only as to the lesser offense of simple battery.² Over Cox’s objection, the trial court then allowed the State to present additional evidence that Cox had been previously convicted of battery, and the jury returned a second verdict indicating that the State had proven Cox’s prior battery conviction beyond a reasonable doubt. On appeal, Cox argues that the State was precluded from seeking to enhance his conviction from the lesser offense of simple battery to the felony battery charge under our precedent Pea v. State, 737 So. 2d 1162 (Fla. 5th DCA 1999). We disagree and affirm.

In Pea, the defendant was charged with burglary of a dwelling with a battery therein, and the jury returned a verdict of guilty only as to the lesser offense of battery. As in this case, the simple battery conviction as to that count was enhanced to a felony battery based upon Pea’s prior battery convictions. We reversed, finding that Pea could only be convicted of simple battery as to that count because the charging document “neither cited subsection 784.03(2) nor alleged prior battery convictions… [so that] Pea did not have proper notice that if he were found guilty of the lesser included crime of misdemeanor battery he could be convicted of felony battery.” Id. at 1163. In doing so, we also quoted from a footnote Young v. State, 641 So. 2d 401 (Fla. 1994), discussing the need for the State to include language in an information “‘to the effect that in the event the defendant is found guilty of the lesser included offense… the defendant is also charged with [the] felony’” enhancement. Pea, 737 So. 2d at 1163 (quoting Young, 641 So. 2d at 403 n. 4).

In this case, count one of the information, charging Cox with aggravated battery on a pregnant person, also expressly alleged that Cox had “previously been convicted of battery on September 6, 2006, in Volusia County, Florida” and that the battery therefore violated both “Florida Statute 784.045(1)(b) and 784.03(1) and (2).” [emphasis added]. Because the information in this case alleged all facts necessary to support the felony battery conviction, and placed Cox on notice that the State was seeking conviction under both the aggravated battery and felony battery statutes, we affirm the felony battery conviction and sentence. We reject Cox’s argument that the information must contain additional language further explaining that the purpose for alleging the prior convictions and the enhancement statute itself is for enhancement in the event that the jury returns a verdict of guilty as to the lesser offense. By alleging the prior battery conviction and referencing the felony battery statute, the State clearly satisfied the requirements of Pea and Young for seeking a felony battery conviction.

AFFIRMED.

PALMER, C.J., and GRIFFIN, J., concur.

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Courtesy of David Edelstein

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Appeal from the Circuit Court for Lake County, Mark A. Nacke, Judge.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellant.

Jack R. Maro of Jack R. Maro, P.A., Ocala, for Appellee.

SAWAYA, J.

The State appeals an order rendered by the trial court pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), which dismissed Counts I through VII of an Information charging the defendant, Eric Shuler, with three counts of conspiracy to traffic in cocaine, three counts of unlawful use of a two-way device, and one count of trafficking in cocaine.¹ The State does not contest the dismissal of Count VII, which contained the trafficking charge.

When a defendant files a motion pursuant to rule 3.190(c)(4), the trial court is authorized to dismiss the Information if the undisputed facts do not establish a prima facie case of guilt. State v. Bell, 882 So. 2d 468 (Fla. 5th DCA 2004). In determining whether a prima facie case of guilt has been established, “if the undisputed facts permit the conclusion the defendant could be found guilty of the charged crime, the motion must be denied.” State v. Williams, 873 So. 2d 602, 604 (Fla. 5th DCA 2004). The courts have consistently held that “the State is not only entitled to receive the most favorable construction of the evidence but also to have all inferences resolved against the defendant.” Bell, 882 So. 2d at 470; see also Williams, 873 So. 2d at 604 (“All reasonable inferences that arise from the undisputed facts must be taken in a light most favorable to the prosecution’s case.” (citing State v. Fuller, 463 So. 2d 1252 (Fla. 5th DCA 1985); State v. Raulerson, 403 So. 2d 1102 (Fla. 5th DCA 1981))); State v. Pasko, 815 So. 2d 680, 681 (Fla. 2d DCA), review denied, 835 So. 2d 268 (Fla. 2002). In order to withstand a motion to dismiss under rule 3.190(c)(4), the State “does not have to show guilt beyond a reasonable doubt, nor produce evidence sufficient to sustain a conviction.” State v. Lebron, 954 So. 2d 52, 56 (Fla. 5th DCA), review denied, 966 So. 2d 967 (Fla. 2007). When ruling on the motion, the trial court should not assess the credibility of witnesses, weigh the evidence, or decide factual issues. Miller v. State, 971 So. 2d 951 (Fla. 5th DCA 2007); Bell, 882 So. 2d at 470. This court likens a rule 3.190(c)(4) motion to a motion for summary judgment in civil actions and has declared that motions under the criminal rule should be granted only sparingly. Miller, 971 So. 2d at 952; Williams, 873 So. 2d at 604.

Based on the applicable de novo standard of review, see Galston v. State, 943 So. 2d 968 (Fla. 5th DCA 2006); State v. James, 928 So. 2d 1269, 1270 (Fla. 2d DCA 2006); State v. Massey, 873 So. 2d 494 (Fla. 5th DCA 2004), we have thoroughly analyzed the undisputed facts arising from the State’s evidence, which includes the various meetings between Shuler and the man with whom he is accused of conspiring to sell drugs; the transcripts of legally intercepted and recorded telephone conversations between the two men, along with the version of those transcripts prepared by law enforcement; and the drug dog alert on Shuler’s car, where $10,000 in cash was found shortly after one of the meetings. Considering all of the undisputed facts in the light most favorable to the State and resolving all inferences against Shuler, as we are obligated to do, we conclude that a prima facie case of guilt has been established. We therefore reverse the order of dismissal as to Counts I through VI and remand this case to the trial court for further proceedings. We affirm the part of the order dismissing Count VII.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER and LAWSON, JJ., concur.

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Courtesy of David Edelstein

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An appeal from the Circuit Court for Alachua County, Peter K. Sieg, Judge.

Joseph Badagliacca, pro se, Appellant.

Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Joseph Badagliacca appeals the denial of the motion for post-conviction relief he filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. The motion alleges ineffective assistance of counsel on nineteen grounds. Except in one minor particular, we affirm the trial court’s thorough order.

Among other things, Mr. Badagliacca contends that trial counsel was ineffective for advising him to enter into a negotiated plea agreement without warning him that, should he fail to keep the plea agreement, the agreement provided that any and all statements that he had made could be used against him in any subsequent trial. The motion alleges that, if he had known of this contingency, he never would have entered into the negotiated plea agreement, and did not intend to waive objection to the use of any statement as evidence. The trial court found that Mr. Badagliacca “entered his plea knowing that his incriminating statements could be used against him if he failed to comply with the plea agreement.” In support, the trial court provided a citation to pages of the transcript that were not, however, attached to the order.

We reverse and remand for record attachments conclusively establishing that trial counsel did not render ineffective assistance by failing to ensure that Mr. Badagliacca knew that, if he breached the plea agreement, the statements could be used at trial. See Robinson v. State, ___ So. 2d ___, 33 Fla. L. Weekly D1683 (Fla. 1st DCA June 30, 2008). We affirm as to all other grounds.

REVERSED in part, AFFIRMED in part.

BARFIELD, KAHN, and BENTON, 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 Alachua County, Phyllis M. Rosier, Judge.

Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Richard Haywood appeals the trial court’s order revoking his probation and sentencing him to five years’ imprisonment. Because the state failed to adduce sufficient evidence that appellant willfully and substantially violated his probation on June 22, 2006, as alleged in the charging document, we reverse the order of revocation and vacate the sentence.

On June 27, 2006, the state filed an affidavit of violation alleging that appellant violated conditions one and three of his probation.¹ The affidavit alleged that appellant, who had been residing in Macon, Georgia, violated condition one of his probation by failing to report to the Gainesville probation office by 4:30 p.m. on June 22, 2006, as his probation officer had directed him to do. The affidavit alleged that appellant also violated condition three of his probation by failing to report in Florida (instead of Georgia) by 4:30 p.m. on June 22, 2006, as his probation officer had directed him to do, Georgia having allegedly rejected a request that it supervise appellant.

Because the state failed to present sufficient evidence that appellant willfully failed to report to the Gainesville probation office on June 22, 2006, and presented no evidence that appellant violated condition three of his probation order by changing his residence without first procuring his probation officer’s consent, the trial court abused its discretion in revoking appellant’s probation. See Smith v. State, 965 So. 2d 1252, 1253 (Fla. 1st DCA 2007).

The evidence did show that, in June of 2006, appellant’s probation officer told appellant, who had been residing in Macon, that he had to return to Florida because the State of Georgia had rejected a request that appellant be supervised in that state. See § 949.07, Fla. Stat. (2006) (reciting the interstate compact for the supervision of adult offenders). The probation officer instructed appellant to report to the probation office in Gainesville by no later than 4:30 p.m. on June 22, 2006.

During the revocation hearing, appellant testified that he had set out to drive to Gainesville from Macon on June 22, 2006, but was thwarted by a “blow out” en route, which irreparably damaged a tire. Because, appellant testified, he could not afford a new tire, appellant called his probation officer in Gainesville to inform him that, although he had “tried diligently to get back” to Florida, he would be unable to do so because of his car trouble and financial situation. Appellant’s probation officer’s testimony confirmed that appellant called him on June 22, 2006, to tell him that the car had broken down on I-75 while appellant was on his way to Gainesville; that appellant did not have money to repair the vehicle; and that as soon as he could get more money or another vehicle or a ride, appellant would “definitely report down to the Gainesville office.” In revoking appellant’s probation because he had failed to report to the probation office in Gainesville as directed, the court observed:

I have people that tell me they can’t get across Gainesville, the town of Gainesville. They don’t have transportation in from Hawthorne or wherever else the situation is, but the law expects them to comply with what is the lawful order of probation, and certainly to take your argument to its obvious extension would mean that you would be allowed to go back — the warrant would be dismissed, you would be allowed to go back to Georgia, and that this Court would be powerless to do anything about your not reporting in, and I don’t believe that that’s a good — good application of the law.

Absent proof by a preponderance of the evidence that a defendant has willfully and substantially violated a condition of his or her probation, however, revocation was improper. See Hodges v. State, 920 So. 2d 158, 159 (Fla. 2d DCA 2006).

Contrary to the trial court’s suggestion, only a willful failure to report would have justified revocation. See State v. Meeks, 789 So. 2d 982, 987 (Fla. 2001) (observing that to trigger a revocation of probation, a probationer’s violation must be willful and substantial); Blackshear v. State, 838 So. 2d 1228, 1229 (Fla. 1st DCA 2003). A probationer who fails to comply with the conditions of his supervision despite reasonable efforts to comply does not violate his probation willfully. See Van Wagner v. State, 677 So. 2d 314, 317 (Fla. 1st DCA 1996) (“Where a probationer makes reasonable efforts to comply with a condition of probation, violation of the condition cannot be deemed `willful.’”); Jacobsen v. State, 536 So. 2d 373, 375 (Fla. 2d DCA 1988). Because the record demonstrates appellant’s good faith effort to comply with his probation officer’s instructions to return to Florida on June 22, 2006, the trial court abused its discretion in finding appellant’s failure to report as instructed willful.

Nor does the record support a finding that appellant violated condition three of his probation, which barred him, in relevant part, from changing his residence without first procuring his probation officer’s consent. The record demonstrates that appellant had been living in Georgia since at least 2005 with — until June of 2006 — the consent of his probation officer, and had never changed his residence without his probation officer’s consent. While appellant failed to return to Florida from Georgia on June 22, 2006, as instructed, that did not violate condition three of appellant’s probation order. The state’s showing that appellant maintained his Georgia residence after the affidavit was filed provided no basis for revocation.²

Because the state failed to prove that appellant willfully and substantially violated conditions of his probation in the manner alleged in the probation violation affidavit, we reverse the trial court’s order revoking probation, and vacate the sentence imposed after probation was revoked.

BENTON, VAN NORTWICK, 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 from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Krista Marx, Judge, L.T. Case No. 06-4788 CF AMB.

        Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

        Bill McCollum, Attorney General, Tallahassee, and Michelle A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

        PER CURIAM.

        We reject defendant’s contention of error in consolidating for trial the two counts of the completed act with the single count of a later attempt to commit the same act. See Crossley v. State, 596 So.2d 447, 450 (Fla. 1992) (standard of review for the consolidation or severance of charges is abuse of discretion); Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) (discretion is abused when no reasonable judge would take the view adopted by the trial judge); Ellis v. State, 622 So.2d 991, 1000 (Fla. 1993) (offenses are properly joined if connected in some significant way, including fact that one crime is causally related to another and was temporally proximate).

        We correct the written sentence, however, to reflect the intent of the oral pronouncement of sentence: 15 years imprisonment on Count I, to be consecutive to 5 years imprisonment on Count II, to be followed by 5 years of sex offender probation for Counts II and III, the probationary terms to be concurrent.

        Remanded for correction of written sentence.

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

        Not final until disposition of timely filed motion for rehearing.

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        Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Richard I. Wennet, Judge, L.T. Case No. 06-016386 AMB.

        Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

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

        PER CURIAM.

        Defendant appeals his conviction for possession with intent to deliver. We agree that the record fails to show evidence of any intent to deliver. Accordingly, we reduce the conviction to simple possession.

        The case is remanded for the entry of judgment and sentence accordingly.

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

        Not final until disposition of timely filed motion for rehearing.

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        Appeal from the Circuit Court for Hillsborough County, Robert A. Foster, Jr., Judge.

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

        James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellee.

        FULMER, Judge.

        Charged with delivery of cocaine, possession of cocaine, possession of cannabis, obstructing with violence, and obstructing without violence, Jermaine Walker filed a motion to suppress evidence. The State has appealed the trial court’s order granting Walker’s motion. We reverse because the undisputed evidence in the record demonstrates that the police had probable cause to arrest Walker.

        Officer Barton of the Tampa Police Department testified that he was working with a confidential informant (CI) doing “buy-busts.” The two were in a van, the CI driving and the officer partially hidden in a rear seat. At one point a man on the street flagged down the van. The CI communicated to the man that he wanted to purchase crack cocaine. The man said to pull up and park and that he would get the cocaine. The man walked over to Walker, who was sitting in a chair in front of a yellow house near where the van had stopped. The man and Walker went through a hand motion as if Walker was handing something to the man; Officer Barton acknowledged that he did not see anything pass from one hand to the other. The man then walked back to the vehicle, hand closed, and gave the CI cocaine from the same hand that he had used with Walker in the apparent hand-over process. In exchange, the CI handed the man $20.

        Once the transaction between the CI and the man was complete, Officer Barton radioed two other officers to detain Walker. They arrived seconds later and approached Walker. Walker immediately took flight into the yellow house. The officers kicked the door open and followed Walker inside.¹

        In its order, the trial court found that the two officers intended to detain Walker in accordance with Officer Barton’s request, that is, to conduct a Terry stop,² which, the court wrote, required “a well-founded articulable suspicion of criminal activity.” The court found

        that Officer Barton observed [the man] hold out his hand with an open palm, palm up. . . . [The officer] observed [Walker] take his hand and hold it over it and open his fingers as if he was dropping something into [the man]‘s hand.

        The court found “that by Officer Barton’s admission, he did not see drugs or money exchange hands and could not testify as to whether any object exchanged [sic] hands.” The court concluded that Officer Barton had only, at best, a “bare suspicion” of criminal activity. As such, the court concluded, the officers did not have sufficient justification to stop Walker. The court therefore granted Walker’s motion to suppress evidence.

        The trial court is correct in reciting that an officer’s bare suspicion of criminal activity is insufficient to justify an investigatory, or Terry, stop. See Parsons v. State, 825 So. 2d 406, 408 (Fla. 2d DCA 2002) (“To justify an investigatory stop, a police officer must have a well-founded suspicion that the person has committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (1999); see also Terry, 392 U.S. 1. Bare suspicion or a mere hunch is insufficient.” (Some citations omitted.)). However, in reaching its conclusion, the trial court relied on drug-related case law concerning scenarios distinct from the one at issue here. The trial court cited Peabody v. State, 556 So. 2d 826 (Fla. 2d DCA 1990), in which this court ruled that officers conducting surveillance in a drug neighborhood may have had a bare suspicion, but not a founded suspicion, of criminal activity when they saw a man in a car extend his open hand, palm up, toward the defendant but did not observe the transfer of any substance from one man to the other. As such, the subsequent stop of the defendant, at which time the officers found drugs on him, was illegal, requiring reversal. Id. at 828. Similarly, Messer v. State, 609 So. 2d 164 (Fla. 2d DCA 1992), an officer saw an apparent transfer of something between the defendant and another man but could not identify what, if anything, was transferred. Another officer moved in and stopped the defendant’s truck, prompting the defendant to drop a piece of rock cocaine from the window. This court reversed because the motion triggering the stop raised only a bare suspicion of criminal activity. Id. at 165. Finally, Walker v. State, 846 So. 2d 643 (Fla. 2d DCA 2003), concerned an apparent hand-to-hand transaction in which the officer did not see money or a substance change hands. Weighing several relevant factors,³ we concluded that founded suspicion did not exist and reversed. Id. at 645.

        In each of these scenarios, as here, law enforcement officers observed hand-to-hand contact between two individuals but were unable to see what, if anything, changed hands. Unlike the situation here, however, the officers or their agents were not themselves involved in the transaction. See Peabody, 556 So. 2d at 827 (police, on surveillance in neighborhood known for drug activity, witnessed a hand-to-hand motion and then converged on the defendant); Messer, 609 So. 2d at 165 (officer observed apparent transaction through binoculars); Walker, 846 So. 2d at 644 (officer, on patrol in high drug area, approached the defendant after observing a hand-to-hand motion). Here, in contrast, there was an uninterrupted process that began with hand-to-hand contact between Walker and the other man and ended with the transfer of cocaine from the other man to the CI in Officer Barton’s immediate presence. Furthermore, in the earlier scenarios the officers came upon the contraband only after detaining or attempting to detain the suspect. Here, the drug transaction was complete and the drug visually identified before the police detained Walker.

        ”Probable cause to arrest exists when the totality of the facts and circumstances within the officer’s knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it.” Revels v. State, 666 So. 2d 213, 215 (Fla. 2d DCA 1995).

        This court has held that police have probable cause to arrest a suspect when they observe a bag containing what appears to be cocaine on [the suspect's] person. State v. James, 693 So. 2d 1086, 1087-88 (Fla. 2d DCA 1997) (holding that police had probable cause to arrest appellee after they saw a plastic bag with a white powdery substance in his mouth); Houston v. State, 925 So. 2d 404, 408 (Fla. 5th DCA 2006) (determining that there was probable cause to arrest appellant after observing white powder in a folded ten-dollar bill in one hand and a plastic baggie in the other hand); Curtis v. State, 748 So. 2d 370, 372 (Fla. 4th DCA 2000) (concluding that police had probable cause to arrest appellant after observing a crack cocaine rock inside his mouth, even though officer testified that object could have been something else but such was “highly unlikely”). State v. Castro-Medina, 959 So. 2d 828, 830 (Fla. 2d DCA 2007). In short, if police observe what reasonably appears to be an illegal drug on a suspect’s person, they have probable cause to arrest the suspect. Here, admittedly, the police did not see cocaine on Walker’s person. But Officer Barton testified that after the hand-to-hand motion between Walker and the other man, the man’s hand remained closed until he presented the cocaine to the CI. We conclude that the totality of the facts and circumstances observed by Officer Barton “would cause a reasonable person to believe that an offense ha[d] been committed and that the defendant [was] the one who committed it.” Revels, 666 So. 2d at 215.

        Because the police had probable cause to arrest Walker, we reverse the order granting the motion to suppress and remand for further proceedings.

        Reversed.

        NORTHCUTT, C.J., and CANADY, J., Concur.

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

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Notes:

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