Florida Criminal Law Opinions

MARK ALLEN CLARK, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 5D08-1000.

District Court of Appeal of Florida, Fifth District.

Opinion filed October 31, 2008.

Appeal from the Circuit Court for Seminole County, Clayton D. Simmons, Judge.

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

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

LAUTEN, F.J., Associate Judge.

Mark Allen Clark appeals the trial court’s denial of his motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We affirm.

Clark was stopped by law enforcement because his driver’s license was suspended. He was arrested and a search of his truck revealed an eighteen-inch “Bushmaster” knife, in a sheath, located under the front driver’s seat. Because Clark was a convicted felon, he was charged with carrying a concealed weapon as a convicted felon.

Clark moved to dismiss the charge, arguing that he was entitled to carry the Bushmaster because it was securely encased and arguing that the Bushmaster was not a weapon but a tool for his work as a landscaper. The State traversed the motion, denying that the knife was snapped into a holster or otherwise carried in such a way as to be securely encased. Without deciding whether secure encasement would be a defense to the charges against Clark, we find that neither of Clark’s factual arguments is appropriate for consideration on a 3.190(c)(4) motion and the trial court correctly denied the motion to dismiss. State v. Williams, 873 So. 2d 602 (Fla. 5th DCA 2004). The trial court is not permitted to make factual determinations on consideration of a (c)(4) motion. See, e.g., Alexander v. State, 450 So. 2d 1212, 1214 (Fla. 4th DCA 1984). Stated differently, “[t]he function of a (c)(4) motion is to ascertain whether the undisputed facts which the state will rely on to prove its case, establish a prima facie case, as a matter of law, so as to permit a jury to determine the defendant guilty of the crime charged.” State v. Walthour, 876 So. 2d 594, 595 (Fla. 5th DCA 2004). See also Brinkley v. State, 874 So. 2d 1199, 1201 (Fla. 5th DCA 2004) (recognizing that the only question on the motion to dismiss and on appeal is whether the facts would support the elements of the crime). The undisputed facts in this case are that Clark was a felon, had a Bushmaster knife in his possession, and the knife was under the seat. Thus, the State demonstrated sufficient facts to support all elements required under section 790.23(1). Because further factual inquiry would have been inappropriate, the trial court properly denied the motion to dismiss for failure to state a prima facie case.

AFFIRMED.

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

ANTONIO BERNARD WHITE, Appellant,
v.
STATE OF FLORIDA. Appellee.Case No. 1D07-4353.

District Court of Appeal of Florida, First District.

Opinion filed October 31, 2008.

An appeal from the circuit court for Escambia County, Paul A. Rasmussen, Judge.

Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Shelly A.R. Chichester, Assistant Attorney General, Tallahassee, for Appellee.

WEBSTER, J.

In this direct criminal appeal, appellant seeks review of convictions, following a jury trial, for burglary of an occupied dwelling and grand theft. He contends that (1) as to both charges, the trial court committed reversible error when it sustained the state’s hearsay objection to his testimony intended to demonstrate a lack of intent, which is an essential element of both offenses; and (2) as to the grand theft charge, the trial court committed reversible error in denying his motion for judgment of acquittal on the ground that the evidence had been legally insufficient to establish the value of the property allegedly taken. We agree with appellant on the latter point. However, we disagree as to the former. Accordingly, while we affirm appellant’s burglary conviction, we reverse the grand theft conviction and remand with directions that the trial court enter judgment for petit theft, and sentence appellant to time served on that conviction.

I.At trial, the victim testified that she saw appellant and another person steal a heavy generator, which she had purchased some two years earlier for $1,100, from a shed attached to her house. As the offense was occurring, the victim yelled “stop,” screamed loudly and told the two men that she was going to call the police. The two stopped what they were doing, turned, and stared at the victim. The victim became frightened. She ran into her house and dialed 911 to report the theft. A short time later, police apprehended appellant and another person in the vehicle the victim had described. The generator was in the back seat. At the conclusion of the state’s case, appellant moved for a judgment of acquittal on the grand theft count, arguing that the count charged theft of property having a value of more than $300 but less than $5,000, but that no evidence had been presented as to the value of the generator on the day it was taken. The trial court denied the motion, stating simply that “[t]he jury c[ould] determine what the value was at the time that the generator was stolen.”

Appellant then took the stand. During his testimony, the state objected to a question, arguing that the question called for inadmissible hearsay. Appellant was permitted to proffer proposed testimony out of the presence of the jury. Appellant testified that the other person in the car when they were apprehended was his next-door neighbor, whom he had known for roughly two years. According to appellant, his neighbor asked him for a ride to the victim’s house so that the neighbor might pick up a generator that the neighbor said the victim had given him in return for work he had done for her. Appellant said that he had no idea that the neighbor intended to steal the generator, or that the neighbor had ever before been involved in any illegal activity. The state again objected that the testimony constituted inadmissible hearsay. Appellant’s lawyer responded that the testimony was not hearsay at all, because it was not being offered to prove the truth of the matter asserted but, rather, was being offered to establish that appellant lacked the specific intent which was an essential element of both offenses. The trial court sustained the state’s objection. The jury found appellant guilty of burglary of an occupied dwelling and grand theft, as charged, and the trial court entered judgment accordingly. This appeal follows.

II. A.Rulings regarding the admissibility of evidence are generally subject to an abuse of discretion standard of review. See Ray v. State, 755 So. 2d 604, 610 (Fla. 2000) (”Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion”) (citing Alston v. State, 723 So. 2d 148 (Fla. 1998)). However, such discretion is circumscribed by the rules of evidence. See Sybers v. State, 841 So. 2d 532, 545 (Fla. 1st DCA 2003) (quoting from Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001)).

B. “`Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Evid. Code. Both of the offenses with which appellant was charged are specific intent crimes. An essential element of the offense of burglary of an occupied dwelling is that the defendant “enter[ed] a dwelling . . . with the intent to commit an offense therein . . . .” § 810.02(1)(b)1, Fla. Stat. (2006). Similarly, an essential element of the offense of grand theft is that the defendant “knowingly obtain[ed] or use[d], or endeavor[ed] to obtain or to use, the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property” or “[a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property.” § 812.014(1)(a) & (b), Fla. Stat. (2006). Notwithstanding the state’s continued argument to the contrary, the testimony proffered by appellant was not hearsay because it was not offered “to prove the truth of the matter asserted”—that appellant’s neighbor had been given the generator in return for work done. It was, instead, offered to negate an essential element of both offenses—intent. E.g., Buchanan v. State, 743 So. 2d 59, 61 (Fla. 2d DCA 1999); King v. State, 684 So. 2d 1388, 1389-90 (Fla. 1st DCA 1996); Sibley v. State, 636 So. 2d 893, 894 (Fla. 5th DCA 1994); Duncan v. State, 616 So. 2d 140, 141-42 (Fla. 1st DCA 1993). Because the proffered testimony clearly related to a material issue in the case, the trial court erred when it sustained the state’s objection and refused to allow the jury to hear that testimony. C.We do, however, agree with the state that the error was harmless. The burden rests with the state, as the beneficiary of the error, to establish to the exclusion of all reasonable doubt that the error did not affect the verdict. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). Here, it is apparent from the record that appellant did testify without objection in the jury’s presence to all of the pertinent information included in the proffer. The proffered testimony was merely cumulative. Moreover, appellant’s lawyer argued lack of intent in his closing. It is, further, apparent that the jury simply chose to disbelieve appellant’s testimony given the victim’s testimony that she made it abundantly clear to appellant and his companion that they had no right to take the generator. Because the error was harmless, we affirm appellant’s burglary conviction. We must, however, reverse his grand theft conviction.

III.Appellant contends that the trial court committed reversible error when it denied his motion for judgment of acquittal on the grand theft charge based on the ground that the state had failed to present any evidence of the generator’s value on the date it was stolen. We agree. As to this issue, our standard of review is de novo. E.g., Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) (stating that, “[i]n reviewing [denial of] a motion for judgment of acquittal, a de novo standard of review applies”) (citing Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)).

An essential element of the grand theft charge was that the generator was worth at least $300, but less than $5,000, on the date of the theft. § 812.014(2)(c)1, Fla. Stat. (2006). The only evidence presented regarding the generator’s value was that, some two years before the theft, the victim had purchased it for $1,100. Well-established precedent demonstrates that such evidence is insufficient, as a matter of law, to establish the value element because it has no probative value regarding the generator’s value at the time of the theft. E.g., D.H. v. State, 864 So. 2d 588, 588-89 (Fla. 2d DCA 2004); Sellers v. State, 838 So. 2d 661, 662-63 (Fla. 1st DCA 2003); Gilbert v. State, 817 So. 2d 980, 982 (Fla. 4th DCA 2002); Taylor v. State, 425 So. 2d 1191, 1193-94 (Fla. 1st DCA 1983). We find without merit the state’s argument that evidence regarding value on the date of the theft was unnecessary because the value of the generator would have been self-evident to a jury.

Because the state failed to present any evidence as to the value of the generator on the date of the theft, appellant was entitled to the judgment of acquittal he requested on the grand theft charge. Accordingly, we reverse that grand theft conviction, and remand with directions that the trial court enter an amended judgment for petit theft, and that it resentence appellant for that conviction to time served.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

LEWIS and HAWKES, JJ., CONCUR.

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

JEFFREY McCAIN, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 2D07-3829.

District Court of Appeal of Florida, Second District.

Opinion filed October 31, 2008.

Appeal from the Circuit Court for Hillsborough County, J. Rogers Padgett, Judge.

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

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

NORTHCUTT, Chief Judge.

Either Jeffrey McCain was in the wrong place at the wrong time, or he conspired with a friend to prepare and sell drugs to an undercover officer. In convincing the jury of the latter, the prosecutor relied on improper Williams¹ rule evidence. We reverse for that reason and because the trial court committed fundamental error when responding to a jury question. We remand for a new trial.

An undercover detective arranged to buy one ounce of methamphetamine from Brian Fifer, and the two agreed to consummate the deal in a McDonald’s restaurant parking lot. When Fifer arrived, McCain was in the car with him. Fifer alone delivered the drugs to the detective’s car, and he was immediately arrested. McCain had been waiting in Fifer’s car, and he was ordered to exit the vehicle. He was then arrested when the police discovered a baggie containing methamphetamine residue in his pocket. McCain was not charged with possession of drugs or paraphernalia involving the baggie, but both McCain and Fifer were charged with trafficking and conspiracy to traffic in narcotics. Fifer negotiated a plea deal for six years in prison. McCain was convicted after a jury trial and was sentenced to fifteen years in prison.

In addition to the facts described above, the undercover detective also testified regarding McCain’s post-Miranda² interview. According to the detective, McCain said that he supplied Fifer with vitamin capsules used as “cut” and that he helped Fifer mix the vitamins with the drugs in order to increase the quantity. The prosecutor also introduced evidence that McCain was in the driver’s seat when arrested.

In defense, McCain and Fifer both testified that McCain was only catching a ride with Fifer. Both denied that McCain knew of or was involved in the drug deal. They acknowledged that McCain gave Fifer some vitamin capsules, but both men denied that McCain knew why Fifer wanted the capsules or that he helped Fifer empty the capsules and mix their contents with the drugs. On the other hand, Fifer admitted on cross-examination that he might have referred to McCain as either his friend or his partner when the undercover detective asked Fifer if anyone was accompanying him to the McDonald’s. The State also introduced a taped telephone call Fifer made from jail. In the conversation, Fifer said that McCain was in the driver’s seat so they could make a quick getaway after the deal.

Prior to trial, McCain filed a motion in limine to exclude any evidence regarding the baggie found on his person, but the motion was denied. McCain argues on appeal that the trial court abused its discretion in admitting this Williams rule evidence, and we agree. The supreme court has explained that relevance is the overriding test for the admissibility of evidence in a criminal trial; evidence relevant to a material fact in issue is admissible, even when it points to the commission of another crime, “except where the sole relevancy is character or propensity of the accused.” Williams v. State, 110 So. 2d 654, 663 (Fla. 1959).

The Williams rule is codified in the Florida Evidence Code as section 90.404(2), Florida Statutes (2006), which states in part:

(2) OTHER CRIMES, WRONGS, OR ACTS.—

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Although relevance, not similarity, is the touchstone for admissibility, similarity is often what makes the Williams rule evidence relevant to prove a material fact in issue. See Williams v. State, 621 So. 2d 413, 414 (Fla. 1993) (”[I]t is generally the similarity between the charged offense and the other crime or act that gives the evidence probative value.”). While embracing a broad rule of admissibility for relevant evidence in Williams, 110 So. 2d at 662, the supreme court “emphasize[d] that the question of the relevancy of this type of evidence should be cautiously scrutinized before it is determined to be admissible.” The danger, of course, is that the jury might infer the defendant’s guilt on the present charge based on his propensity for criminal conduct. See Sampson v. State, 645 So. 2d 1005, 1008 (Fla. 2d DCA 1994) (”The jury may have inferred guilt on the present charges on the basis of the evidence implying that Sampson had the propensity to commit drug offenses.”).

In Sampson, the police allegedly found cocaine in Sampson’s pocket when he turned himself in after a parking lot fracas, but at trial Sampson offered evidence to support his claim that the police planted the drugs. 645 So. 2d at 1007. The State was allowed to introduce rebuttal testimony from a detective who had previously purchased cocaine from Sampson. Id. This court reversed, concluding that the evidence of Sampson’s prior cocaine offense lacked any relevance to the crimes charged. Id. at 1008. In reaching this conclusion, we rejected a comparison between Sampson’s defense and that of entrapment, which allows the introduction of normally inadmissible evidence to show a defendant’s predisposition to commit the crime.

Richardson v. State, 528 So. 2d 981 (Fla. 1st DCA 1988), the First District reversed Richardson’s convictions for multiple counts of sale and possession of cocaine because the trial court erroneously admitted evidence that a matchbox with drug residue was found in his possession at the time of his arrest. As in this case, “nothing tied the matchbox to any of the charges against appellant,” and “the evidence of the matchbox was admitted solely to show propensity to possess cocaine at an earlier time, evidence which is inadmissible under the Williams Rule.” Id. at 982.

By contrast, the Fourth District Tannihill v. State, 912 So. 2d 2 (Fla. 4th DCA 2005), affirmed the admission of Williams rule evidence concerning a previous drug sale, offered to rebut the defendant’s claim that he was an innocent bystander to the charged drug sale. The court rejected the argument that the charged and uncharged offenses must share unique factors, but in that case there were in fact strong similarities between the two. In regard to the charged trafficking offense, a confidential informant testified that the defendant was in an apartment kitchen cooking cocaine while another individual sold drugs to the informant. Id. at 3. As to the uncharged offense, the informant testified that the defendant sold her the drugs directly while he was cooking cocaine in the same kitchen. The similarities there made the evidence of the uncharged offense relevant to rebut the theory of defense.

In this case, however, the absence of similarities rendered the collateral crime evidence irrelevant to the charges for which McCain was being tried. Other than the type of drug involved, there were no similarities between McCain’s mere personal possession of a baggie with methamphetamine residue and the charges that he trafficked and conspired to traffic in a large quantity of the substance. See Hill v. State, 624 So. 2d 826, 827 (Fla. 2d DCA 1993) (distinguishing sentencing options available for drug users but not drug traffickers and noting that “[t]he personal acquisition and consumption of illegal drugs differs sharply . . . from the peddling of such drugs for profit”); cf. United States v. Glen-Archila, 677 F.2d 809, 816 (11th Cir. 1982) (”For evidence of an extrinsic act to be admissible as proof of intent . . ., it must require the same intent as the charged offense . . . .”). We conclude that the Williams rule evidence served only to show McCain’s propensity to commit drug crimes.

We cannot say that admitting the improper evidence was harmless error. In fact, such evidence “is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.” Straight v. State, 397 So. 2d 903, 908 (Fla. 1981). According to the State, McCain helped Fifer prepare the drugs, accompanied him to the deal, and moved to the driver’s seat to facilitate a quick departure afterwards. According to McCain and Fifer, McCain unwittingly provided legal vitamins to a friend and rode along in the car, unaware of the drug deal. The baggie of residue found in McCain’s pocket showed his propensity to be a drug user, but it did not tend to show his involvement in drug trafficking. Given the danger of unfair prejudice from this evidence, we cannot say beyond a reasonable doubt that “there is no reasonable possibility that the error contributed to the conviction.” See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

Our reversal in this case is supported by our analysis of another issue raised by McCain regarding the trial court’s response to a jury question. On the conspiracy charge, the jury was instructed that the State must prove “the intent of Mr. McCain was that the offense of trafficking in amphetamine would be committed.” The word control appeared throughout the jury instruction on the trafficking charge. During deliberations, the jury asked for the legal definitions of intent and control. The trial court called the jury in and, without substantial input from the attorneys, answered the question as follows:

As far as the definition of intent and control, this is part of what I meant yesterday when I said the jury decides how the law applies. The legislature writes these laws, and they use words like intent, control, and they don’t illuminate that. They just use those words so that people like you, scattered all over the state, can decide what those words mean in any particular case. And that’s the way you have to do it.

Because what those words mean in this case might be different from what some other jury thinks they mean in some case in West Palm Beach. That’s the way it works, okay?

No objections were raised, and the jury returned to its deliberations, ultimately convicting McCain as charged.

A court is given discretion in responding to jury questions, Fla. R. Crim. P. 3.410, and the court here could have defined the terms, referred the jurors to the instructions previously given, or instructed that they should consider undefined terms as having common and ordinary meanings. See, e.g., Perriman v. State, 731 So. 2d 1243, 1247 (Fla. 1999) (finding no abuse of discretion in referring jury to previous instructions but noting that when “appropriate, the court may also clarify a point of law with a brief, clear response”); Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA) (directing jury to give everyday meaning to undefined term), review denied, 968 So. 2d 557 (Fla. 2007). Instead, the court told the jury that the legal terms meant, basically, whatever the jury wanted them to mean.

“[D]ue process requires `that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.’” State v. Kettell, 980 So. 2d 1061, 1068 (Fla. 2008) (quoting in part Gerds v. State, 64 So. 2d 915, 916 (Fla. 1953)). Although jury instruction issues must be preserved for appeal by contemporaneous objection, and the error in this case was not preserved, fundamental error occurs when an instruction contains an incorrect definition of a disputed element of the crime. See Reed v. State, 837 So. 2d 366 (Fla. 2002) (finding fundamental error when court gave standard jury instruction defining malice element of aggravated battery but standard instruction was incorrect and malice element was disputed at trial).

McCain’s intent to participate in the drug deal was a critical issue at trial, and the court’s response to the jury’s request for the legal definition of intent might have been confusing and misleading. “Giving the jury a misleading instruction on such an issue clearly is an error which reaches `down into the validity of the trial itself.’” York v. State, 932 So. 2d 413, 416 (Fla. 2d DCA 2006) (quoting in part State v. Delva, 575 So. 2d 643, 644 (Fla. 1991)); see also McKenzie v. State, 830 So. 2d 234, 237 (Fla. 4th DCA 2002) (stating that “test is not whether a particular jury was actually misled, but instead . . . whether the jury might reasonably have been misled”).

We find no merit to the other issues raised on appeal.

Reversed and remanded for a new trial.

FULMER, J., and CANADY, CHARLES T., ASSOCIATE JUDGE, Concur.

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

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Notes:

1. Williams v. State, 110 So. 2d 654 (Fla. 1959).

2. Miranda v. Arizona, 384 U.S. 436 (1966).

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RACHEL RIMES, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 5D07-2276.

District Court of Appeal of Florida, Fifth District.

Opinion filed October 31, 2008.

Appeal from the Circuit Court for Orange County, Tim Shea, Judge.

James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

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

LAWSON, J.

Rachel Rimes appeals her conviction and sentence on the charge of grand theft auto. We agree with Rimes that the trial court committed reversible error when it denied her request to strike a prospective juror for cause. Rimes used a peremptory strike to eliminate the potential juror and requested an additional peremptory after exhausting her allotted strikes. This request was also denied.

The prospective juror had a close friend who worked as a deputy sheriff in Orange County and stated that he would tend to believe a law enforcement officer over a lay witness because of this relationship.¹ The trial judge himself questioned the potential juror, Mr. Marchman, at length regarding the issue. Marchman admitted that law enforcement officers are not always right, and said that he “would like to think” that he could be fair. But, he told the judge after extensive questioning that he was just “trying to be honest” and that he still thought that a law enforcement officer’s testimony “carries more weight.” The judge then told Marchman that they would “come back and talk a little bit more about this.”

After the venire questioning concluded, the judge asked all panel members to wait outside the courtroom while he conferred with the attorneys, and jury selection began. When Rimes’ counsel moved to strike Marchman for cause, the judge instead called Marchman back into the courtroom alone, and the following exchange occurred:

Judge: Let me ask you. There was some question about law enforcement and about whether you would be likely to give greater weight to the testimony of a law enforcement officer. And I thought that later in our discussion you indicated that you could serve as a fair and impartial juror, and that you would be willing to listen to the testimony as it’s presented to you, and you would not give greater weight. Did I misunderstand you, sir?²

Marchman: No, that’s correct.

Judge: Sorry?

Marchman: That’s correct. Yes, sir.

Judge: So after we had discussion about it, your initial reaction was, yeah. I would probably be likely to give greater weight. We had discussion about it, and at the conclusion of that discussion, it seemed to me you answered affirmatively, that you could, if called upon to serve as a juror, and give law enforcement officers’ testimony the same weight as you would any other witness; is that right?

Marchman: Yes, sir.

After a few more questions, Marchman exited the courtroom again, and the court denied Rimes’ motion to strike him for cause.

It is well-settled that a potential juror should be excused for cause if there is any reasonable doubt about his or her ability to render an impartial verdict. See, e.g., Singleton v. State, 783 So. 2d 970 (Fla. 2001). A juror who would tend to defer to a police witness should be excused for cause. See, e.g., Reid v. State, 972 So. 2d 298, 300 (Fla. 4th DCA 2008) (”Defendant is entitled to an impartial jury, not one with members who favor police testimony.”); Slater v. State, 910 So. 2d 347, 348 (Fla. 4th DCA 2005) (reversing for new trial where “trial court erroneously denied a for cause challenge as to a juror who agreed he would probably defer to the testimony of a police officer over a lay witness”); Garcia v. State, 805 So. 2d 827, 828 (Fla. 2d DCA 2001) (recognizing error in refusing for cause challenge to prospective juror who stated he would probably believe police officer if officer’s testimony conflicted with testimony of a lay witness); Polite v. State, 754 So. 2d 859, 860 (Fla. 3d DCA 2000) (reversing when trial court failed to excuse two jurors for cause based upon their preconceived beliefs that a police officer’s testimony was worthy of more credibility than of a civilian witness); Peri v. State, 412 So. 2d 367, 367 (Fla. 3d DCA 1981).

We recognize that Florida law allows “the rehabilitation of jurors whose responses in voir dire raise concerns about their impartiality.” Juede v. State, 837 So. 2d 1114, 1115 (Fla. 4th DCA 2003) (citing Martinez v. State, 795 So. 2d 279 (Fla. 3d DCA 2001). However, “‘[a] juror’s subsequent statements that he or she could be fair should not necessarily control the decision to excuse a juror for cause, when the juror has expressed genuine reservations about his or her preconceived opinions or attitudes.’” Id. at 1115-16 (quoting Rodas v. State, 821 So. 2d 1150, 1153 (Fla. 4th DCA 2002)). In this case, Marchman had maintained his insistence that he would favor a law enforcement witness despite the trial court’s rather extensive attempt to rehabilitate him. It was only when Marchman was brought back into the courtroom alone, and faced with the trial court’s leading and compound question (which equated his ability to be fair and impartial with his ability to set aside his previously-revealed views regarding police testimony), that he finally relented and agreed with the trial judge that he could be fair. We conclude that the trial court’s final leading questions, and Marchman’s ultimate agreement that he could be impartial, were insufficient to erase the reasonable doubt created by his earlier insistence after repeated questioning that, if being honest, he would have to admit that he would favor a police witness. See Williams v. State, 638 So. 2d 976, 978 (Fla. 4th DCA 1994), review denied, 654 So. 2d 920 (Fla.1995) (”Because impartiality of the finders of fact is an absolute prerequisite to our system of justice, we have adhered to the proposition that close cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving doubt as to impartiality.”).

Accordingly, we reverse Rimes’ conviction and sentence, and remand for a new trial. Because the case will be tried again, we also note that we find no error in the trial court’s decision to admit evidence of Rimes’ drug use at trial, since the State’s evidence established Rimes’ drug activity as a motive for the charged crime. See, e.g., Cohen v. State, 581 So. 2d 926, 928 (Fla. 3d DCA 1991) (”A defendant’s drug activity is admissible to show motive.”) (citations omitted).

REVERSED AND REMANDED FOR NEW TRIAL.

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

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Notes:

1. The State planned to call an Orange County deputy sheriff at trial, and did so.

2. This was an inaccurate summary of Marchman’s prior responses. As previously indicated, Marchman had ended his earlier exchange on the subject by confirming that he would give more weight to a law enforcement officer’s testimony.

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ANTONIO DESHAWN WILLIAMS, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 2D06-5436.

District Court of Appeal of Florida, Second District, Lakeland.

Opinion filed October 31, 2008.

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

James Marion Moorman, Public Defender, and Terry Clifton Christian, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.

BY ORDER OF THE COURT:

Appellant’s motion for rehearing and rehearing en banc is denied; the request for a written opinion is granted. The prior per curiam affirmed opinion dated May 7, 2008, is withdrawn, and the attached opinion is issued in its place.

KELLY, Judge.

Antonio Williams appeals from his judgment and life sentence for burglary of a dwelling with an assault or battery. We affirm his conviction without comment. As for his life sentence, Williams, citing Tumblin v. State, 965 So. 2d 354 (Fla. 4th DCA 2007), argues that he does not qualify for Prison Releasee Reoffender (PRR) sentencing under section 775.082, Florida Statutes (2005). Specifically, Williams argues his offense is not a “forcible felony” that would qualify him for PRR sentencing under section 775.082(9)(a)(1)(o). Although we agree, and the State concedes, that Williams does not qualify for PRR sentencing under subsection (o), because Williams did not preserve this sentencing error, we affirm but do so without prejudice to Williams’ right to file an appropriate postconviction motion. See Brannon v. State, 850 So. 2d 452 (Fla. 2003).

Affirmed.

FULMER and CASANUEVA, JJ., Concur.

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

RONALD HELMS, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 5D08-555.

District Court of Appeal of Florida, Fifth District.

Opinion filed October 31, 2008.

3.850 Appeal from the Circuit Court for St. Johns County, Wendy W. Berger, Judge.

William Mallory Kent, of Law Office of William Mallory Kent, Jacksonville, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Ronald Helms ["Helms"] appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief in which he raised six claims of ineffective assistance of counsel.

Helms was found guilty by a jury of committing the crimes of sexual battery, lewd or lascivious exhibition, and lewd or lascivious conduct. He was sentenced to life imprisonment on the sexual battery charge and fifteen years on each of the two remaining counts, all running concurrent to each charge. He was also declared a sexual predator pursuant to section 775.21, Florida Statutes (2002). This Court per curiam affirmed his direct appeal. See Helms v. State, 871 So. 2d 246 (Fla. 5th DCA 2004).

After Helms filed his 3.850 motion for post-conviction relief, the trial court summarily denied grounds two, three and five as insufficiently pled. Ground six was also denied on the basis that any newly discovered evidence could not have changed the outcome of the trial. The State was ordered to respond to grounds one and four.

After grounds two, three and five were denied as insufficiently pled, Helms filed a motion requesting to amend the claims or, alternatively, seeking a rehearing. Relying on the Fourth District’s Spera v. State, 923 So. 2d 543 (Fla. 4th DCA 2006), the trial court denied the motion. Subsequently, however, the Supreme Court of Florida issued Spera v. State, 971 So. 2d 754 (Fla. 2007). Under that decision, it was error for the trial court to refuse Helms leave to amend these claims.

As to the remaining two claims, we affirm. We agree with the trial court that it was not ineffective assistance for trial counsel to fail to file a motion to suppress and that Helms was not shown to be prejudiced by the failure to secure his presence during the third jury communication.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

PALMER, C.J., GRIFFIN, J., and LAUTEN, F., Associate Judge, concur.

STATE OF FLORIDA, Appellant,
v.
FERNANDO MONTAS, Appellee.Case No. 5D07-3962

District Court of Appeal of Florida, Fifth District.

Opinion filed October 31, 2008

Appeal from the County Court for Orange County, Wayne Shoemaker, Judge.

Lawson Lamar, State Attorney, and Abigail Forrester Jorandby, Assistant State Attorney, Orlando, for Appellant.

Robert Wesley, Public Defender, and Rosemarie Farrell, General Counsel, Orlando, for Appellee.

ORFINGER, J.

The State appeals the county court’s order declaring section 250.43(2), Florida Statutes (2007), unconstitutional. This Court has jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). The State argues that the trial court erred by concluding that section 250.43(2), regulating the wearing of military uniform and insignia, was unconstitutionally overbroad and violates the right to due process. We disagree and affirm.

A Transportation Security Administration (TSA) agent at the Orlando International Airport noticed Fernando Montas wearing a U.S. Army uniform, standing in an unmarked, expedited security lane utilized by military and security personnel. The alert TSA agent considered it odd that Montas’s hair was longer than allowed in the military. When he could not produce a military ID, Montas admitted that he was not in the Army. He was arrested and charged with one count of wearing a uniform and insignia of rank, in violation of section 250.43, Florida Statutes (2007).¹ On Montas’s motion and after a hearing, the trial court determined that section 250.43 was unconstitutionally overbroad and violated the due process clause. This appeal followed.

We review a trial court’s decision on the constitutionality of a state statute de novo. Ocala Breeders’ Sales Co. v. Fla. Gaming Ctrs., Inc., 731 So. 2d 21, 24 (Fla. 1st DCA 1999); see also N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 626-27 (Fla. 2003). There is a “strong presumption in the law that a state statute is constitutionally valid.” Ocala Breeders’ Sales Co., 731 So. 2d at 24 (citing In re Estate of Caldwell, 247 So. 2d 1 (Fla. 1971)).

“A statute is overbroad when legal, constitutionally protected activities are criminalized as well as illegal, unprotected activities, or when the Legislature sets a net large eno ugh to catch all possible offenders and leaves it to the courts to step inside and determine who is being lawfully detained and who should be set free.” Schultz v. State, 361 So. 2d 416, 418 (Fla. 1978) (citing Coates v. Cincinnati, 402 U.S. 611 (1971); State v. Wershow, 343 So. 2d 605 (Fla. 1977)). However, “the overbreadth doctrine is an unusual doctrine that must be used sparingly, especially where the statute in question is primarily meant to regulate conduct and not merely pure speech.” Shapiro v. State, 696 So. 2d 1321, 1324-25 (Fla. 4th DCA 1997) (quoting Schmitt v. State, 590 So. 2d 404, 412 (Fla. 1991)).

In the context of the First Amendment, an overbroad statute is one that restricts protected speech or conduct. Shapiro, 696 So. 2d at 1324-25; see State v. Bryant, 953 So. 2d 585, 587 (Fla. 1st DCA 2007) (”Legislation is overbroad when it is drafted in a manner that may be applied to conduct protected by the First Amendment.”). Even if speech or conduct is unprotected by the First Amendment, “[t]he overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002). Thus, “a person may attack a statute on grounds of overbreadth even though the conduct of the person is clearly unprotected and could be proscribed by a law drawn with the requisite specificity.”² State v. Greco, 479 So. 2d 786, 789 (Fla. 2d DCA 1985) (citing New York v. Ferber, 458 U.S. 747, 769 (1982)).

The State argues that Montas does not have a fundamental right to wear a military uniform; thus, his conduct is not protected by the First Amendment. “In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, [the test is] whether `[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’” Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)). Montas argues that he was wearing the uniform as an act of patriotism and to support members of his family who are in the military. While we doubt that such a message would be perceived by those observing him in uniform, we can conceive of situations when a person might wear some part of a military uniform to communicate a message. For instance, a person might do so to express his support of the troops or to protest military action.

Because section 250.43 potentially implicates protected speech or conduct, we must determine if it is supported by a compelling governmental interest and is narrowly drawn to protect that interest. Firestone v. News-Press Pub. Co., 538 So. 2d 457, 459 (Fla. 1989) (”Restrictions on first amendment rights must be supported by a compelling, governmental interest and must be narrowly drawn to insure that there is no more infringement than is necessary.”). We agree with the trial court that the State has a compelling interest in ensuring that the public is not deceived by people impersonating members of the military. See Rodriguez v. State, 906 So. 2d 1082, 1089-90 (Fla. 3d DCA 2004). However, we also agree with the trial court’s determination that the statute has the potential to criminalize wholly innocent conduct, and is not narrowly-tailored to address its goal.

Generally, a statute that has the potential to criminalize constitutionally protected, innocent activity as well as illegal, unprotected activity is impermissibly overbroad, and violates due process. See Schultz, 361 So. 2d at 418; Siplin v. State, 972 So. 2d 982, 989 n.8 (Fla. 5th DCA 2007) (”Generally, it violates substantive due process to criminalize purely innocent conduct.”) (citing State v. Giorgetti, 868 So. 2d 512 (Fla. 2004)). Sult v. State, 906 So. 2d 1013 (Fla. 2005), and Rodriguez v. State, 906 So. 2d 1082 (Fla. 3d DCA 2004), the Florida Supreme Court and the Third District Court faced a similar issue, providing guidance in this case. In Sult and Rodriguez, the courts addressed the constitutionality of section 843.085, Florida Statutes, which criminalizes the unauthorized display of a police badge or other law enforcement indicia. In relevant part, that statute makes it unlawful for any person:

[T]o wear or display any authorized indicia of authority, including any badge, insignia, emblem, identification card, or uniform, or any colorable imitation thereof, of any federal, state, county, or municipal law enforcement agency, or other criminal justice agency as now or hereafter defined in s. 943.045, which could deceive a reasonable person into believing that such item is authorized by any of the agencies described above for use by the person displaying or wearing it, or which displays in any manner or combination the word or words “police,” “patrolman,” “agent,” “sheriff,” “deputy,” “trooper,” “highway patrol,” “Wildlife Officer,” “Marine Patrol Officer,” “state attorney,” “public defender,” “marshal,” “constable,” or “bailiff,” which could deceive a reasonable person into believing that such item is authorized by any of the agencies described above for use by the person displaying or wearing it.

§ 843.085(1), Fla. Stat.

In both cases, the courts determined that that statute prohibited both constitutionally protected and unprotected conduct. Sult, 906 So. 2d at 1021; Rodriguez, 906 So. 2d at 1089-90. In reaching this conclusion, the Third District noted that a t-shirt expressing support of the police or making a political statement about a candidate for sheriff would be prohibited by the statute. A police uniform worn as a Halloween costume would also be illegal. Rodriguez, 906 So. 2d at 1090 n.3. Section 250.43, criminalizing the unauthorized wearing of a military uniform, imitation uniform, or any part thereof, also makes similar activities illegal. For example, this statute would criminalize a child wearing his parent’s Army boots or a person wearing an imitation military uniform for Halloween.

The Sult and Rodriguez courts also determined that section 843.085 was overbroad and violated due process because it did not differentiate between innocent conduct, and conduct intended to deceive the public. Sult, 906 So. 2d at 1021; Rodriguez, 906 So. 2d at 1088. The Sult court concluded that there was no way to read a specific intent to deceive element into the statute to create a narrower reading limiting its scope to unprotected conduct. 906 So. 2d at 1022. In the same way, section 250.43 fails to contain a specific intent element. It contains no requirement that the action be taken with the intent to deceive a reasonable person or in an effort to impersonate a member of the military. The State urges us to adopt a narrower construction of the statute to limit the statute’s scope to unprotected conduct. However, “[c]ourts may not go so far in their narrowing constructions so as to effectively rewrite legislative enactments.” Wyche v. State, 619 So. 2d 231, 236 (Fla. 1993) (citing Firestone, 538 So. 2d at 460; Brown v. State, 358 So. 2d 16, 20 (Fla. 1978)). Here, the State does not suggest an alternative reading of the statute, and we can find no logical way to read a specific intent element into the statute as it is written.

Although section 250.43 differs from section 843.085 in several respects, the Florida Supreme Court’s reasoning in Sult and the Third District Court’s rationale in Rodriguez apply here. Without a specific intent element, section 250.43 clearly criminalizes both innocent, protected conduct and unprotected conduct, and is on that basis both overbroad and a violation of due process. Further, while section 250.43 addresses a compelling government interest, it is not narrowly-tailored to ensure that there is no more infringement than is necessary to protect that interest. Finally, there is no way to read the statute more narrowly without rewriting it. Therefore, we affirm the trial court’s ruling that section 250.43 is unconstitutionally overbroad and violates due process.

AFFIRMED.

TORPY and COHEN, JJ., concur.

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Notes:

1. In its entirety, section 250.43, Florida Statutes (2007), provides:

(1) The uniform or insignia of rank worn by officers of the Florida National Guard shall be worn only by persons entitled thereto by commission under the laws of the state or the United States. Any person violating this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and may also be punished as a court-martial directs.

(2) Every person other than an officer or enlisted person of the Florida National Guard, naval militia, or marine corps of this state, any other state, Puerto Rico, or the District of Columbia, or of the United States Army, Navy, Marine Corps, or Air Force, who wears the uniform of the United States Army, Navy, Marine Corps, Air Force, National Guard, Naval Militia, or Marine Corps or any part of such uniform, or a uniform or part of uniform similar thereto, or in imitation thereof, within the bounds of the state, except in cases where the wearing of such uniform is permitted by the laws of the United States and the regulations of the Secretary of Defense, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This section does not prohibit persons in the theatrical profession from wearing such uniforms while actually engaged in such profession, in any playhouse or theater, in a production in no way reflecting upon such uniform; does not prohibit the uniform rank of civic societies parading or traveling in a body or assembling in a lodge room; and does not apply to cadets of any military school or to Boy Scouts or Girl Scouts.

2. Generally, in order for a party to challenge a statute on the ground of overbreadth, he “is required to establish that [his] own admitted conduct was wholly innocent and its proscription not supported by any rational relationship to a proper governmental objective.” State v. Ashcraft, 378 So. 2d 284, 285 (Fla. 1979). The State contends that Montas failed to show that his conduct was wholly innocent. Instead, the State maintains that Montas was wearing the uniform to circumvent security at the Orlando International Airport. Even if Montas’s actions were not innocent, “[w]here the asserted overbreadth of a law may have a chilling effect on the exercise of first amendment freedoms, a challenge will be permitted even by one who does not show that his own conduct is innocent and not subject to being regulated by a narrowly drawn statute. ” Id. (citing Bigelow v. Virginia, 421 U.S. 809 (1975); Dombrowski v. Pfister, 380 U.S. 479 (1965)). Therefore, Montas has standing to challenge the constitutionality of the statute.

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Lorenzo Etienne, Appellant,
v.
The State of Florida, Appellee.No. 3D08-508.

District Court of Appeal of Florida, Third District.

Opinion filed October 29, 2008.

An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge, Lower Tribunal Nos. 95-31925; 95-32483.

Lorenzo Etienne, in proper person.

Bill McCollum, Attorney General, and Richard Polin, Assistant Attorney General, for appellee.

Before GERSTEN, C.J., and SUAREZ and SALTER, JJ.

PER CURIAM.

Lorenzo Etienne appeals the trial court’s denial of his petition for writ of habeas corpus. Defendant argues that the intention behind the plea agreement into which he entered was thwarted when he was not given credit for prison time previously served. We reverse the denial and remand with instructions.

In 1997, defendant was sentenced to ten years in prison, followed by five years of probation. He was released in 2003, having earned 880 days of gain time, and started the probationary portion of his sentence. He was arrested in 2007 on charges that he violated his probation. At the hearing, the court revoked defendant’s probation and imposed a four-year sentence with seventy days credit for jail time pending the hearing. The court announced, “you will serve three years and ten months in the state prison as a result of these charges.” There were no objections to this sentence.

Upon inquiring with the Department of Corrections about his presumptive release date, defendant was informed that his prior credit for prison time had been forfeited, and his release would be in six-and-a-half years. Thereafter, defendant sought habeas relief, asserting that he was entitled to the credit for time served and that the sentence he would serve violated the terms of the plea agreement. The court denied the habeas petition. Defendant appealed.

We agree with the State’s argument that defendant is not entitled to credit for all time previously served. The transcript shows that defendant pled to the seventy days of credit he was awarded. To award additional credit would mean that defendant would “receive the `windfall’ of immediate release.” Fulcher v. State, 875 So. 2d 647, 648 (Fla. 3d DCA 2004). This would be an absurd result. Rivera v. State, 954 So. 2d 1216 (Fla. 3d DCA), review granted, 968 So. 2d 557 (Fla. 2007); Fulcher, 875 So. 2d at 648.

However, the defendant is correct that the forfeiture of gain time earned on the original prison sentence thwarts the intention of the plea agreement. Here, as Williams v. Department of Corrections, 734 So. 2d 1132 (Fla. 3d DCA 1999), the transcript shows that all parties to the plea agreement intended for defendant to serve just short of four years. The gain time forfeiture means defendant is facing a longer sentence than agreed. Defendant is entitled to relief on this basis. See Devoid v. State, 987 So. 2d 219 (Fla. 5th DCA 2008); Dellofano v. State, 946 So. 2d 127 (Fla. 5th DCA 2007); State v. Jackson, 842 So. 2d 1040 (Fla. 3d DCA 2003); Dellahoy v. State, 816 So. 2d 1253 (Fla. 5th DCA 2002); Wallace v. State, 793 So. 2d 78 (Fla. 2d DCA 2001).

We, therefore, reverse the trial court’s denial of the habeas petition. We remand to the trial court with instructions that it treat the petition as a Florida Rule of Criminal Procedure 3.850 motion. The court shall either resentence defendant in a manner that effectuates the plea agreement in view of the gain time forfeiture, or allow defendant to withdraw his plea.

Reversed and remanded with instructions.

Not final until disposition of timely filed motion for rehearing.

JOSE G. QUEZADA, Appellant,
v.
STATE OF FLORIDA, Appellee.No. 4D07-4593

District Court of Appeal of Florida, Fourth District.

October 29, 2008

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Burton C. Conner, Judge, L.T. Case No. 562006CF001183A.

Carey Haughwout, Public Defender, and Ian Seldin, 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.

STONE, J.

Appellant Jose Quezada appeals his convictions for resisting a law enforcement officer with violence and resisting a law enforcement officer without violence, a lesser included offense. We reverse his conviction for resisting without violence and remand for resentencing, because his convictions arose out of the same criminal episode and therefore constitute a double jeopardy violation. See Tumblin v. State, 974 So. 2d 1173 (Fla. 4th DCA 2008) (holding that convictions of resisting with violence and resisting without violence violate double jeopardy principles, requiring vacation of the lesser charge, where both offenses arose from a single criminal episode). Wallace v. State, 724 So. 2d 1176 (Fla. 1998); Williams v. State, 959 So. 2d 790 (Fla. 2d DCA 2007); Gaines v. State, 800 So. 2d 732 (Fla. 5th DCA 2001).

Reversed and remanded.

STONE, WARNER and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

JASON ASHLEY CUSHNIE, Appellant,
v.
STATE OF FLORIDA, Appellee.No. 4D07-3856

No. 4D07-3857

District Court of Appeal of Florida, Fourth District.

October 29, 2008

Consolidated appeals from the Circuit Court for the Nineteenth Judicial Circuit, Martin County, Larry Schack, Judge, L.T. Case No. 06-1383 CFA.

Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

KLEIN, J.

Appellant, who was convicted of aggravated assault on a law enforcement officer and high speed fleeing and eluding, appeals, arguing that the trial court, sua sponte, should have held a hearing to determine if appellant was mentally competent. We affirm.

The police received a telephone call to the effect that appellant was suicidal, armed with a knife, and driving a car. When appellant saw the police arrive, he fled with the police in pursuit and ultimately crashed into one of the police cars, and backed his car into another car. An officer then approached appellant with his gun drawn, and appellant then used the knife to cut his wrists. One of the officers then tasered him and he was taken to the hospital.

After his arrest appellant moved for a bond reduction so that he could be transferred to a secure mental health facility, and at the hearing the arresting officers testified that they had found a suicide note in his car. At the time of his arrest appellant was on probation as a result of no contest pleas to possession of drugs.

Florida Rule of Criminal Procedure 3.210(b), provides:

Motion for examination. — If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion…

Neither the parties nor the trial court raised any concern about appellant’s competency below. The state, however, at the beginning of the trial, moved for an order to prevent the defense from mentioning that appellant had been Baker Acted¹ for his attempted suicide when he was arrested. The state pointed out that this evidence would be irrelevant because appellant was not relying on an insanity defense. Defense counsel argued that, because of his mental state, appellant could not have formed the intent to commit the aggravated assault. The court ruled that this was a diminished capacity argument, which is not a defense, and held that the fact that appellant had been Baker Acted was not admissible.

After the state rested its case, the court conducted a colloquy with appellant regarding his decision as to whether to testify, and the court found that appellant was exercising his informed free will in electing not to testify. Again, no question was raised about his competency to stand trial. Appellant was found guilty and, at sentencing, appellant’s father testified that appellant had been suffering from manic depression, that appellant had been receiving treatment, and that he appeared to have been functioning normally until his arrest on these charges. There was no suggestion from the father or defense counsel that appellant was not competent to proceed.

Appellant now argues, for the first time, that the trial court erred in not holding a hearing to determine whether he was competent to stand trial. He relies almost entirely on Kelly v. State, 797 So. 2d 1278, 1279 (Fla. 4th DCA 2001); however, Kelly is distinguishable. As our opinion in Kelly explains:

The trial judge in this case acknowledged on the record that he had been familiar with Kelly, a mental health patient, for twenty years. He was also advised by Kelly’s mental health counselor and attorney that Kelly had refused to take his medication (Haldol). On the day of trial, defense counsel advised that Kelly was competent to stand trial, but opined that he had a “reduced capacity to deal with stressful situations….” Kelly then piped in that he “never did nothing wrong in my whole life. I’m ready to get out of … the country and go somewhere and lay up.” The judge then stated that while Kelly was technically competent, “he’s borderline. You know it as well.” While the state wanted to admit Kelly to a treatment facility, the judge replied, “There is no appropriate facility. An appropriate facility for Ephone would be someplace where he would be put away for life in a home type situation that’s secure. And they don’t have them.” Defense counsel then said he wanted a trial, so the court ordered Kelly to “[s]it down … we’re gonna have the trial.”

Trial then proceeded. The state presented evidence that Kelly held up two large rocks and gestured as if he was going to throw them at some officers. It also showed Kelly threw a rock over one officer’s head. During this incident, Kelly spoke to the officers about Jesus, ranting that “Jesus died, so I’m gonna die, and I’m taking someone with me.” Kelly was disruptive during trial and had to be admonished by the court to sit down.

In concluding that the court should, on its own, have held a competency hearing, we explained:

The court found on the record that Kelly was only borderline competent. This finding is supported by Kelly’s disruptive behavior during trial, nonsensical ramblings about leaving the country, and rantings about Jesus. Because all the parties involved, including defense counsel, worried about Kelly’s “reduced capacity,” it was incumbent upon the court to speak up and order a hearing when no one else asked for it.

Id. at 1280.

The present case is easily distinguishable from Kelly in that in Kelly, the defendant’s behavior at trial was bizarre. In contrast, in the present case there was nothing to alert the court or counsel that appellant was not, at the time of trial, competent to go to trial. Affirmed.

POLEN and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. Baker Act, § 394.451, Fla. Stat. (2007).

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