Florida Criminal Law Opinions

An appeal from the Circuit Court for Suwannee County, David W. Fina, Judge.

Marcial Rodriquez, pro se, for Appellant.

Bill McCollum, Attorney General; and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, C.J.

Marcial Rodriquez (Appellant) appeals a final order denying his timely, sworn Florida Rule of Appellate Procedure 3.850 motion alleging eight claims of ineffective assistance of trial counsel. We affirm the order in substantial part but are constrained to reverse the ruling as to Ground Eight and to remand this cause to the circuit court pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007).

A jury found Appellant guilty, as charged, with three counts of sale or delivery of cocaine, two counts of possession of cocaine with intent to sell or deliver, and one count of trafficking in cocaine (28 grams or more, but less than 200 grams). Appellant was designated a habitual felony offender and sentenced accordingly. His convictions and sentences were affirmed in Rodriguez [sic] v. State, 889 So. 2d 76 (Fla. 1st DCA 2004). The circuit court summarily denied Grounds One, Five, and Eight of the motion for post-conviction relief but ordered the State to respond to the remaining five grounds. After the State filed its response, the circuit court denied relief on Ground Four without a hearing. After the State conceded the need for an evidentiary hearing, the court scheduled one to address Grounds Two, Three, Six, and Seven. Appellant moved for appointment of counsel and an interpreter. An interpreter was provided, but the motion for appointment of counsel was denied. At the conclusion of the testimony at the evidentiary hearing, the circuit court denied the four remaining grounds for relief.

Appellant’s first issue on appeal challenges the circuit court’s failure to appoint counsel for the evidentiary hearing. We find no abuse of discretion in this ruling, given the specific factors in Appellant’s case. See Graham v. State, 372 So. 2d 1373, 1366 (Fla. 1979).

Another issue on appeal challenges the denial of Ground Eight as facially insufficient. This claim alleged that trial counsel remained silent and failed to object when “inadmissible, prejudicial evidence” in the form of a Coca-Cola can and an F.D.L.E. laboratory report was introduced. In support of his argument as to only this issue, Appellant contends that the circuit court should have permitted him to amend this claim pursuant to Spera, 971 So. 2d at 761. The circuit court denied Ground Eight in 2006. The Supreme Court of Florida did not issue Spera until November 2007, which was after the evidentiary hearing was held and the final order issued in Appellant’s case. Even so, Spera pertains to cases such as Appellant’s in which the appeal was pending when Spera was issued. See Watson v. State, 975 So. 2d 572, 573 (Fla. 1st DCA 2008); Pierre v. State, 973 So. 2d 547 (Fla. 5th DCA 2008). But see Davis v. State, 33 Fla. L. Weekly D604, D605 (Fla. 2d DCA Feb. 28, 2008) (rejecting proposition that Spera should be applied retroactively); Landeverde v. State, 33 Fla. L. Weekly D1305 (Fla. 4th DCA May 14, 2008) (same reasoning). The Spera issue was preserved only as to Ground Eight in Appellant’s initial brief. See Watson, 975 So. 2d at 573.

In the final issue on appeal, Appellant asserts that the circuit court erred in summarily denying Ground Five as not a cognizable issue under rule 3.850 because it could and should have been raised on direct appeal. See Moore v. State, 768 So. 2d 1140, 1141-42 (Fla. 1st DCA 2000). We find no error. This claim essentially alleged that it was error to allow into evidence an audiotape that could have confused the jury regarding Appellant’s prior record. “Allegations of ineffective assistance cannot be used to circumvent the rule that post-conviction proceedings cannot serve as a second appeal.” Medina v. State, 573 So. 2d 293, 295 (Fla. 1990); Cherry v. State, 659 So. 2d 1069, 1072 (Fla. 1995).

We AFFIRM the final order denying the motion for post-conviction relief in all respects, except for the denial of Ground Eight, which we are compelled to REVERSE AND REMAND to the circuit court pursuant to the requirements of Spera, to allow Appellant the opportunity to amend his facially insufficient eighth claim within a reasonable time period. See Sierra v. State, 33 Fla. L. Weekly D1574 (Fla. 1st DCA June 16, 2008).

PADOVANO, J., CONCURS; WOLF, J., CONCURS AND DISSENTS WITH OPINION.

WOLF, J., Concurring in Part and Dissenting in Part.

I would not extend the holding Spera v. State, 971 So. 2d 754 (Fla. 2007) (requiring the court to give a defendant an opportunity to amend a deficient rule 3.850 order), to situations where a defendant is granted an evidentiary hearing as to certain issues and fails to apprise the trial court that he wishes an opportunity to amend his motion regarding the remaining, summarily dismissed, issues.¹

In this case, the order summarily dismissing Ground Eight was filed on November 6, 2006. This order specifically indicated that Ground Eight was insufficient for failing to allege how the introduction of the evidence was prejudicial to the defendant’s case and why the evidence should have been excluded. An order granting an evidentiary hearing on other issues was filed on March 28, 2007. An evidentiary hearing was held on April 30, 2007. The order denying the motion for post conviction relief was filed on May 15, 2007. In the almost 6 months between the order indicating deficiencies in Ground Eight of defendant’s 3.850 motion and the evidentiary hearing, the defendant filed several pleadings and papers but never requested leave to amend Ground Eight of the 3.850 motion. Under these circumstances, any entitlement to amend the motion should be considered waived.

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

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Notes:

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Courtesy of David Edelstein

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An appeal from the Circuit Court for Escambia County, Frank Bell, Judge.

Nancy Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee.

Bill McCollum, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

THOMAS, J.

Appellant appeals his conviction for driving while license suspended (DWLS) for a third time, a third-degree felony under section 322.34(2)(c), Florida Statutes (2006). We reverse.

Pursuant to a plea agreement, Appellant pled guilty to felony DWLS under section 322.34(2)(c), Florida Statutes. In return for the plea, the State agreed to nolle prosse the two additional counts with which Appellant was charged. This was therefore a negotiated plea rather than an open plea. Appellant did not preserve any issues for appeal, but now argues for the first time on direct appeal that his conviction violates his constitutional right to due process under Thompson v. State, 887 So. 2d 1260 (Fla. 2004). In Thompson, the Florida Supreme Court found that the defendant’s conviction for felony DWLS under section 322.34(2)(c), Florida Statutes, had to be reversed. Id. at 1266. Thompson’s two predicate convictions were obtained under the pre-1997 version of the statute, which did not include the knowledge element. Id. at 1265. Due to the 1997 amendment, “Thompson pled to an offense for which the State could not demonstrate all of the elements, i.e., two prior convictions of DWLS with knowledge that the license was canceled, suspended, or revoked.” Id. Accordingly, Thompson’s felony conviction had to be reversed since it failed to satisfy federal due process requirements. Id. at 1266.

Here, the State challenges Appellant’s ability to directly appeal his guilty plea under Florida Rule of Appellate Procedure 9.140(b)(2)(A), which limits the grounds on which a guilty plea can be appealed. Accordingly, the State has filed a motion to dismiss Appellant’s appeal for lack of jurisdiction.

Because of the manner in which Appellant was charged, the count to which he entered his guilty plea supported only a misdemeanor conviction, in that one of the two predicate offenses upon which the State relied occurred prior to 1997, when the statute did not include the required element of knowledge. See Thompson, 887 So. 2d at 1265-66. Recognizing this, the State concedes that Appellant would be entitled to relief from his conviction on this count, as a matter of fundamental error, had he been convicted at trial or entered an open plea. In light of this fundamental error, we reverse Appellant’s conviction for felony DWLS, even though Appellant entered a negotiated plea.

Recently, Miller v. State, 988 So. 2d 138, 139 (Fla. 1st DCA 2008), this court held that where the record affirmatively demonstrates that a defendant could not have committed the crime to which he entered a guilty plea, then fundamental error has occurred, and the defendant’s right to appeal that error is not waived upon entry of a negotiated plea. We agree with the dissenting opinion in Miller which notes the proposition that fundamental error can be waived when a defendant enters a negotiated plea. Id. at 140 (Allen, J., dissenting) (citing Guynn v. State, 861 So. 2d 449 (Fla. 1st DCA 2003); Novaton v. State, 634 So. 2d 607 (Fla. 1994)). However, we are constrained to reverse Appellant’s conviction by this court’s decision in Miller. See In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 416 So. 2d 1127, 1128 (Fla. 1982). I n conformity with our previous decision in Miller, we hold that Appellant may challenge his conviction and raise fundamental error on direct appeal, despite his failure to raise the issue below and preserve it for review pursuant to rule 9.140(b)(2)(A).

We deny the State’s motion to dismiss. We reverse Appellant’s conviction and sentence for felony DWLS and remand to the trial court. On remand, since the State is losing the full benefit of its plea agreement, it will have the option of how to proceed, either by having the trial court enter a conviction for first-degree misdemeanor DWLS under section 322.34(2)(b), Florida Statutes, or by allowing Appellant to withdraw his plea and face trial on the original charges, with the felony DWLS charge lessened to a misdemeanor count. Further, because we conclude that the issue of whether a defendant waives his right to appeal a defect in his conviction when he receives the benefit of a negotiated plea is a matter of great public importance, we certify the following question to the Florida Supreme Court:

MAY A DEFENDANT WHO HAS ENTERED A NEGOTIATED PLEA RAISE FOR THE FIRST TIME ON DIRECT APPEAL THE CLAIM THAT HIS CONVICTION VIOLATES THE DECISION IN THOMPSON V. STATE, 887 So. 2d 1260 (Fla. 2004)?

REVERSED and REMANDED; QUESTION CERTIFIED.

BARFIELD and ALLEN, JJ., CONCUR.

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

Courtesy of David Edelstein

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An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig, Judge, Lower Tribunal No. 06-17141.

Bill McCollum, Attorney General, and Lisa A. Davis and Ansley B. Peacock, Assistant Attorneys General, for appellant.

Entin & Della Fera and Richard Della Fera, for appellee.

Before WELLS, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, J.

The State appeals an order issued by the trial court granting the defendant’s motion to suppress his statements. The first statement was made near the scene of the shooting before the defendant was advised of his Miranda¹ rights. The second statement was made at the police station after the defendant was advised of his Miranda rights, and after he waived them and agreed to speak to the police. The trial court suppressed the initial statement because the defendant was questioned without being advised of his rights, and suppressed the second statement, given by the defendant after he was advised of his rights, as “fruit of the poisonous tree.” Because the defendant was not in custody when he was initially questioned by law enforcement, there was no need to advise him of his rights. We, therefore, agree with the State that the trial court erred in suppressing the defendant’s statements.

The facts are as follows. The defendant called the police to report that his friend Alex had been shot and to request assistance. When the initial responding officers arrived, the defendant told them that an unknown person walked up to Alex and shot him. The defendant was asked to sit in a patrol car while the officers conducted their investigation. Shortly thereafter, Detective Chavarry arrived. Detective Chavarry did not attempt to speak to Alex, who was being tended to by rescue before being transported to the hospital. Detective Chavarry, however, did speak to the officers on the scene and learned that Alex was allegedly shot by an unknown suspect and that the defendant had witnessed the shooting.

Detective Chavarry testified that witnesses are often asked to sit in patrol cars until they can be interviewed. He also testified that the defendant was not handcuffed or restrained in any way, he was not a suspect, and he was free to leave. Detective Chavarry stated that the defendant was simply a witness to the shooting. Detective Chavarry approached the defendant, introduced himself, told the defendant that he understood he had spoken to the officers on the scene, told the defendant that the officers found some blood splatters on his car, and asked him what happened. In response, the defendant told Detective Chavarry that he had not been truthful with the officers and that he had accidentally shot his friend.

Based upon this statement, the defendant was transported to the police station where he was formally advised of his Miranda rights. The defendant waived his rights and provided a sworn statement explaining what occurred. Alex died and the defendant was charged with manslaughter.

The trial court’s ruling, suppressing the defendant’s statements, was premised upon its finding that the defendant’s initial statement was the product of custodial interrogation and, thus, Detective Chavarry was required to advise the defendant of his Miranda rights before asking him any questions. The safeguards provided in Miranda only come into play when a person is in custody and he is subjected to express questioning by law enforcement or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). “A person is in custody if a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.” Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999).

The Florida Supreme Court in Ramirez identified a four-prong test to be used in determining whether a person is in custody, holding that the court should consider: (1) the manner in which the police summoned the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; and (4) whether the suspect is informed that he or she is free to leave the place of questioning. Id. at 574.

We begin our analysis with the fact that when the defendant was initially questioned by Detective Chavarry, he was not a suspect. The detective believed the defendant was a witness. In applying the above test, we note that the police did not summon the defendant for questioning—the defendant summoned the police for assistance. When the police arrived, the defendant volunteered that his friend had been shot by someone he did not know. Detective Chavarry was simply following up on what the defendant had already volunteered. Although the defendant was seated in a patrol car when Detective Chavarry went to talk to him, the patrol car was at the location where the defendant had summoned the police, the patrol car was not locked, the defendant was not handcuffed or restrained, and the defendant was simply asked to sit in the car while the initial officers conducted their investigation. The purpose of Detective Chavarry’s questioning of the defendant was to verify what the defendant had already told the uniform officers and to obtain additional information to assist them in their investigation. Detective Chavarry was in plain clothes and his weapon was not visible. He introduced himself to the defendant, told him he understood he had already spoken with the officers on the scene, told the defendant they had found some blood on his car, and asked him what happened. It was at this point that the defendant volunteered that he had not been truthful when he had spoken to the officers, and that he had accidentally shot his friend.

We conclude that the trial court erred when it failed to consider the factors articulated in Ramirez in determining whether the defendant was in custody for purposes of Miranda, focusing instead on the mere location where the questioning took place. The location where the questioning took place is not determinative of whether the defendant was in custody for purposes of Miranda. There can be no greater a coercive atmosphere than a police station, and yet, this Court, and other courts have found that simply being questioned at a police station does not necessarily turn the questioning of an individual into a custodial interrogation requiring Miranda warnings.

State v. Gilles, 701 So. 2d 375 (Fla. 3d DCA 1997), this Court reversed the trial court’s suppression of Gilles’ statements made at a police station prior to being advised of her Miranda warnings. Gilles, the wife of the deceased, who was found murdered, was taken to the police station for questioning, where she remained for several hours overnight. When Gilles was interviewed, it was believed that she was a victim and a witness to the murder and, therefore, she was not “read her rights.” Id. at 376. In reversing the trial court’s order suppressing Gilles’ statements, this Court noted that `”[i]n determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’” Id. at 376-77 (quoting Stansbury v. California, 511 U.S. 318, 322 (1994)). This Court found that although Gilles was interviewed at the police station, for purposes of Miranda, she was not in custody.

Generally, “on-the-scene questioning which is customarily made by investigating officers during the fact finding process” does not constitute custodial interrogation. Colocado v. State, 251 So. 2d 721, 723 (Fla. 1st DCA 1971). That is so because during this early on-the-scene investigatory stage, where the police have not focused on a suspect, and the questioning is not accusatory or has its core purpose the intent to elicit a confession, Miranda is not implicated. Id. See also State v. Barnes, 245 So. 2d 108, 109 (Fla. 3d DCA 1971) (reversing the trial court’s order suppressing Barnes’ admission that she stabbed the victim, finding that the officer’s question asking Barnes “who stabbed the victim” was on-the-scene questioning, not custodial interrogation).

In this case, the defendant summoned the police for assistance when his friend was shot, and when the police arrived, he immediately volunteered that an unknown subject shot his friend. A reasonable person in the defendant’s position would not believe that when he was asked to sit in a police car until they had a chance to speak with him, that he was under police custody for purposes of Miranda. At that time, the defendant was considered a witness, not a suspect, he was not restrained in any way, and he had already volunteered information indicating that he may have relevant information to assist the police with their investigation.

State v. Polanco, 658 So. 2d 1123, 1124-25 (Fla. 3d DCA 1995), in reversing the trial court’s order suppressing Polanco’s statement, this Court found that the questioning by the police of Polanco, a juvenile, who `”they had removed from his classroom and who”‘ they questioned about his whereabouts on the previous Sunday evening because he was thought to be the last or one of the last persons to see the victim alive, was not so coercive as to lead a reasonable person to believe that he was under arrest or restrained to the degree associated with a formal arrest.

Based upon the circumstances of this case, we find that the trial court erred in suppressing the defendant’s on-the-scene statement. Because the defendant’s constitutional rights were not violated when he made his first non-custodial statement, it is axiomatic that the second statement, which he made after being advised of his Miranda rights, and after freely and voluntarily waiving his rights, was not “fruit of the poisonous tree” requiring suppression.

We, therefore, reverse the trial court’s order suppressing both the on-the-scene non-custodial statement and the subsequent custodial statement at the police station.

Reversed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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An appeal from the Circuit Court for Bay County, Don T. Sirmons, Judge.

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

Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, C.J.

Laurie Lynn Bartlett (Appellant) was charged with the second-degree murder of her live-in boyfriend, Ernest Lamar, arising from the stabbing of the victim with a knife. Pursuant to Florida Rule of Criminal Procedure 3.201, the defense filed notice of intent to rely on self-defense based on the “battered-spouse syndrome.” The jury found Appellant guilty of the lesser-included offense of manslaughter, and she was sentenced to ten years’ incarceration, to be followed by five years’ probation. Appellant argues that the trial court abused its discretion in allowing the primary detective in this case to testify that before he obtained a warrant for Appellant’s arrest, he ruled out the possibility that the killing was done in self-defense. Concluding that it was error to allow the detective to opine to the jury that he had ruled out self-defense, and that the State has not met its burden under State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986), to show there is no reasonable possibility that the error affected the verdict, we are constrained to reverse Appellant’s conviction and sentence and remand for a new trial.

Investigator Mark Walton was the Bay County Sheriff’s Department case agent responsible for investigating Appellant’s case. Walton observed Appellant and briefly spoke to her at the trailer where the stabbing occurred. Appellant was crying and seemed to be upset but did not appear to have any physical injuries. A number of photos were taken of the stabbing scene, which were published without an objection. With Appellant’s permission, Walton looked inside the trailer where Mr. Lamar’s body was located. At the trial, Walton was shown photos of the crime scene. He identified a single stab wound in the victim’s chest as the apparent cause of death. He explained certain details relating to the crime scene and the location of Mr. Lamar’s body. The prosecutor asked Walton if he is the individual who had signed the complaint, and he answered “yes.” Walton testified that he had written “murder” on the complaint as the crime in question. When questioned as to whether he had to rule out self-defense in signing the complaint, Walton answered “yes.” When the State asked Walton why he had ruled out self-defense, Appellant’s attorney objected because the question called for “opinion, speculation.” The court sustained the objection. Next, the State approached the bench and argued as follows:

The new self-defense law requires them to make that particular finding before they sign the complaint, they have to rule it out before, so it’s part of the statutory requirement for him to be able to sign that complaint. He should be able to testify what went into his thinking process before he made that decision.

The trial judge changed his mind, stating:

That is a requirement, then as long as you are going to ask him the facts that he relied on, not just as to his speculation, then the objection is overruled, so rephrase your question.

The State then asked Walton what facts and evidence he had observed that led him to rule out self-defense. He testified: When I first got to the scene I went in and looked at Mr. Lamar’s body. The stab wound, which is located about here, you could look at it and see with the naked eye it was a very significant downward angle. The knife would have had to go in at an angle like this, just sort of common sense. Anybody looking at it would have been able to deduce that. The original explanation for the wound was that he had been walking down the hallway, he had tripped, and that the knife had gone into his [sic], that he had basically accidentally fallen on the knife. He was supposed to have been carrying a plate of pizza with the knife in one hand and that’s when this was supposed to have occurred as he walked down the hallway. This would have meant that he would have taken the knife and gone at a severe downward angle into his own chest and that did not match that statement. So I had this to begin with, this story which was inconsistent with the facts at the scene. We started working from there and, in fact, later found the knife that was used to cut the pizza that night, which was a completely separate knife from the one that stabbed Mr. Lamar. There were no traces of the pizza on the knife that stabbed Mr. Lamar. Only his own blood up to the hilt of the knife.

In my experience, um, with the numerous occasions that I have been called for fights involving weapons or any kind of altercation between people, someone who is simply trying to ward off an aggressor with a knife —

Defense counsel objected because the State was “going into war stories” that were not relevant. The objection was overruled. Walton continued testifying:

[I]n my experience the knife is held out to ward someone off. This wouldn’t explain this wound. This wound came from someone who brought the knife down into his chest with a great deal of force, making it not an accident. The inconsistent stories with the evidence, which continued up until the end to be inconsistent with the evidence. The evidence would show that a knife, that someone took a knife and used a great deal of force to enter it into Mr. Lamar’s body at a downward angle and the absence of any kind of wounds that I observed on [Appellant] led me to believe that this was not a self-defense situation. In addition to the fact that we had two witnesses that advised in their statements —

After defense counsel objected on hearsay grounds, the prosecutor cut off any further statement by Walton on direct examination.

On cross-examination, Investigator Walton reiterated that he had observed a single stab wound in the upper chest area. He noted that at the autopsy, several “poke” wounds were described. Walton testified that these wounds indicated that someone had poked Mr. Lamar with some type of instrument that did not break the victim’s skin. These poke wounds were not evident to Walton at the crime scene. Two knives were found at the site, one on the living-room coffee table and the other between the couch cushions. One of the knives had pizza sauce on it, and the other had what appeared to be blood on it. Walton acknowledged that in ruling out self-defense, he had assumed that Mr. Lamar was standing upright when he was stabbed. When he was asked whether the downward angle of the wound could be explained if Mr. Lamar, as the aggressor, had lunged or leaned forward toward Appellant, with a level extension of the knife, Walton testified he did not believe that was the case. On redirect, when Walton was asked why he did not agree with the defense’s hypothesis, he testified:

Like I said, two things that I believe why that does not work, because, of course, I had to try to consider that. He would have to run at her with enough force sufficient enough to impale himself completely with that knife, which means the full weight of his body would be coming at her and she would have to be supporting that quite a bit. That’s my first issue with it, with that hypothesis. It was a very deep angle so he would almost have to be, the top half of his body would almost have to be parallel to the floor, which does not seem real reasonable. The other problem I have with it is a statement that [Appellant] made in one of her statements that she made on tape. Um, in talking to Captain Stanford, he asked her: And did he run into you before, he saw you with the knife before he run [sic] into you or did he know you had the knife? I don’t even know if he knew I had it but what he did, he came at me, I just threw my hands up and I said I can’t take no [sic] more and I come [sic] down, both my hands, and that’s when he just grabbed himself. And she was referring to here when he was grabbing himself about grabbing the wound.

The questioning of witness Walton ended.

Appellant contends that the trial court’s initial ruling sustaining the objection to the question of why Investigator Walton had ruled out self-defense is correct. Section 776.032(2), Fla. Stat. (2006), states:

A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

Appellant notes that this subsection of the statute is not a substantive change in how the police investigate a case. Before any police officer can sign a criminal complaint, the officer must have probable cause to believe a crime has been committed. See Amend. IV, U.S. Const.; § 901.02, Fla. Stat. (2006); Fla. R. Crim. P. 3.120; Johnson v. State, 660 So. 2d 648 (Fla. 1995); Crain v. State, 914 So. 2d 1015, 1022 (Fla. 5th DCA 2005). In a homicide, an officer cannot properly sign a criminal complaint if the evidence shows the killing was justified. In any event, the new section of the self-defense law does not authorize an officer to testify about this finding. What Walton did was to talk about the facts he had observed or learned from other sources before concluding that self-defense was not a viable defense in Appellant’s case. In effect, the State’s eliciting the challenged testimony encroached upon the jury’s vital task to determine whether Appellant had acted in self-defense.

Section 90.701, Fla. Stat. (2006), of the Florida Evidence Code states:

90.701 Opinion testimony of lay witnesses.—If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

Based on this evidentiary limitation, Investigator Walton’s testimony was clearly objectionable. In support of this conclusion, Appellant cites Kolp v. State, 932 So.2d 1283 (Fla. 4th DCA 2006), in which Kolp was convicted of attempted second-degree murder. During the trial, one of the victims of the shooting testified he had recovered hollow-point casings, meaning that their centers were carved out, “Like, usually, hollow-points are for killing, you know?” Id. at 1284. Kolp’s counsel objected to this unqualified witness’ being allowed to opine as to the use of hollow-point bullets for killing; the objection was overruled. See id. This was held to be speculative and inadmissible under section 90.701 because the statute usually limits testimony to the witness’ perception, e.g., as to “distance, time, size, weight, form and identity.” Fino v. Nodine, 646 So. 2d 746, 748-49 (Fla. 4th DCA 1994); Kolp, 932 So. 2d at 1284. The witness’ opinion testimony was speculative and did not meet the criteria in Fino. See Essex v. State, 917 So. 2d 953, 957 (Fla. 4th DCA 2005) (concluding that detective’s opinion testimony regarding the mirroring and consistency of statements by the defendant’s niece and the victim improperly bolstered the State’s witnesses and was inadmissible hearsay, where the niece and the victim both testified at the trial, allowing the jury independently to determine whether their statements were consistent).

Similarly, whether self-defense was a viable defense for Appellant was not personally observed by Investigator Walton. Cf. Miller v. State, 934 So. 2d 580, 582 (Fla. 3d DCA 2006) (finding no abuse of discretion in burglary and theft trial, where officer was allowed to testify, based on his personal observations rather than on his expertise, that when the defendant was arrested several days after the offenses, a bruise defendant had sustained was already fading and a laceration he had sustained seemed to be healing).

The defendant Nardone v. State, 798 So. 2d 870 (Fla. 4th DCA 2001), was convicted of aggravated assault with a deadly weapon, which was identified as an aluminum strip attached to a flower planter. Nardone, resisting, grabbed the strip as orderlies tried to drag him in a sheet to a “quiet room” in a recovery clinic, and he used the strip to try to strike an orderly near the face before the strip was wrestled from Nardone. See id. at 871-72. At trial, the police officer who had interviewed the eyewitnesses and recovered the aluminum strip was asked by the prosecutor if the strip could be used to cause serious bodily injury. After a defense objection on grounds that the jury was supposed to decide whether the object was a deadly weapon, and that the answer would be speculative, confusing, and more prejudicial than probative, the officer was asked about her training and experience with weapons and whether she was familiar with weapons and had seen blunt objects cause great bodily harm. The officer answered “yes.” She opined that the aluminum strip could cause great bodily harm. See id. at 872. The State asserted that this testimony was admissible as lay opinion based on the officer’s familiarity with the type of object in question. See id. at 873.

However, citing section 90.701, the Fourth District Court in Nardone noted that a lay witness’ opinion testimony is allowed only if it is based on “what the witness has personally observed.” Id.; see Fino, 646 So. 2d at 748. The officer did not witness the assault and did not base her conclusions (as to how the aluminum strip was used) on personal observations. “Her opinion that the object could be used as a deadly weapon was speculative.” Nardone, 798 So. 2d at 873. As to the State’s argument that the officer’s testimony was properly admitted as expert opinion due to her specialized training and experience with weapons, the district court noted the lack of a predicate, given the absence of evidence at that point in the trial concerning how Nardone had actually used the strip. The State made no showing that a factual determination of whether the aluminum strip was a deadly weapon was beyond the scope of an ordinary juror’s knowledge and understanding, as is required under section 90.702, Florida Statutes, infra. See Nardone, 798 So. 2d at 873-74. Finding an abuse of discretion and the State’s failure to show harmless error, the district court reversed Nardone’s judgment/sentence and remanded. See id. at 874-75.

Appellant compares the challenged testimony in Nardone to the testimony of Investigator Walton. That is, by allowing the State’s questions and Walton’s detailed answers on a matter within the realm of an ordinary juror’s knowledge and understanding, the trial court improperly invaded the province of the jury as the fact-finder and allowed the detective to serve as a fact-finder during the guilt phase by determining that self-defense was not a viable defense for Appellant. Allowing this testimony to be adduced was error.

The State contends that it was not an abuse of discretion to allow Walton to testify that he had ruled out self-defense. Several statutes set out the parameters as to what force is allowed under particular circumstances. Section 776.032(1), Florida Statutes (2006), states:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom such force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

Section 776.012, Florida Statutes (2006), states:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013. In pertinent part, section 776.013, Florida Statutes (2006), states:

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

* * *

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

* * *

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity;

* * *

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

“`Residence’ means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.” § 776.013(5)(b), Fla. Stat. The evidence indicated that Appellant and Ernest Lamar both occupied the residence where he was killed.

Before the enactment of sections 776.032 and 776.013, Florida Statutes, in 2005, “a person was justified in using deadly force when the person was attacked in his or her home and `reasonably believed deadly force was necessary to prevent “imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”‘” State v. Heckman, 2007 WL 4270594, *2 (Fla. 2d DCA Dec. 7, 2007) (quoting Note, Florida Legislation—The Controversy Over Florida’s New “Stand Your Ground” Law-Fla. Stat. § 776.013 (2005), 33 Fla. St. U.L. Rev. 351, 354 (Fall 2005)). “The creation of section 776.013 eliminated the burden of proving that the defender had a reasonable belief that deadly force was necessary by providing a conclusive presumption of such.” Heckman, 2007 WL 4270594 at *2.

“All relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2006). Generally, any relevant evidence is admissible unless admission is precluded by a specific rule of law. See Council v. State, 691 So. 2d 1192, 1194 (Fla. 4th DCA 1997). “A trial judge has broad discretion in determining the relevance of evidence.” Slocum v. State, 757 So. 2d 1246, 1250 (Fla. 4th DCA 2000).

The purely factual observations of a witness are admissible, if relevant, such as in a negligence trial, where a paramedic’s testimony regarding the “mechanism of injury” (where the plaintiff injured his lower back when he landed near the base of an inflated, vinyl tube-like structure at an agricultural fair) was not expert in nature. See Blue Grass Shows, Inc. v. Collins, 614 So. 2d 626, 626-27 (Fla. 1st DCA 1993). Even the opinion of a lay witness may be admissible where the “witness cannot readily, and with equal accuracy and adequacy,” explain his or her observations or perceptions without giving an inference or opinion. § 90.701(1), Fla. Stat. Further, “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes the ultimate issue to be decided by the trier of fact.” § 90.703, Fla. Stat. (2006).

In asserting that the trial court did not err, the State relies on Floyd v. State, 569 So. 2d 1225 (Fla. 1990), a murder case, in which Floyd contended that several police officers, non-expert State witnesses, gave improper lay opinion testimony. One officer speculated as to how various objects at the crime scene were knocked over or handled during the crime, and as to how the victim may have received a laceration on her nose. A sergeant also testified as to how the victim might have received the injury to her nose. Finally, a detective testified that the murder was committed by a “creep-in burglar.” See id. at 1231. The Florida Supreme Court stated that “[l]ay witness opinion testimony is admissible if it is within the ken of an intelligent person with a degree of experience.” Id. at 1232. Finding “the officers’ testimony within the permissible range of lay observation and ordinary police experience,” the court concluded that “the trial court did not abuse its discretion in admitting this particular testimony.” Id.

In the testimony at issue, Appellant preserved the objections based on “opinion, speculation,” relevancy, and hearsay grounds. Addressing the first ground for objection, Appellant argues on appeal that Investigator Walton’s testimony that he had ruled out self-defense essentially foreclosed the jury from making a finding on this critical, ultimate issue: “It is for the lawyers to argue and the jury to decide whether Ms. Bartlett killed Lamar in self-defense. It was illegal evidence, properly characterized as lay opinion testimony because Walton was never qualified as an expert.” Even though the defense did not express its objection this artfully in the trial court, we conclude that the “opinion” objection was sufficient to invoke section 90.701, supra. Appellant concedes that it was proper to allow Walton to testify regarding what he had seen at the crime site, including the victim’s wounds. However, the jury did not need the investigator’s opinion for the jury to determine whether Appellant had acted in self-defense. The error occurred in allowing Walton to opine to the jury that the nature of the stab wound led him to rule out self-defense. Appellant correctly asserts that the mere fact that section 776.032(2) required the investigator(s) to determine whether “there is probable cause that the force that was used was unlawful” does not automatically bootstrap this information into admissible evidence. On this record, the factual matter of what the investigator personally observed at the crime scene is quite distinct from his opinion regarding what had happened before his arrival, i.e., the circumstances of the stabbing death.

The scope of section 90.701 is usually limited to matters relating to distance, time, size, weight, form, and identity, which are easily observable. See Kolp, 932 So. 2d at 1284. Appellant asserts that whether a violent act was committed using justifiable force is an entirely different matter. Appellant cites case law stating that “a witness’s opinion as to the guilt or innocence of the accused is not admissible.” Thomas v. State, 837 So. 2d 443, 446 (Fla. 4th DCA 2002). Just as the objectionable testimony in Thomas (that the witness had no doubt that the defendant had driven the vehicle) was error and hurt the defense by removing the ultimate question of guilt from the jury (which, in the prosecution for second-degree murder and leaving the scene of an accident with death or serious bodily injury, had to determine whether the defendant had driven the van that ran over the victim), Investigator Walton’s conclusion that self-defense was not involved, in effect, answered a question that the jury itself was supposed to resolve: did Appellant act with justifiable force in self-defense? In the instant case, the defense did not “open the door” so as to allow the State to pursue this line of questioning. Cf. id. at 447.

This Court Somerville v. State, 626 So. 2d 1070, 1071-72 (Fla. 1st DCA 1993), concluded that it was error to allow a witness who had purchased a class ring to opine as to whether he believed it was stolen; likewise, it was error to allow Investigator Walton to opine to the jury that he had ruled out self-defense. In Kolp, the Fourth District Court concluded that the State lay witness’ opinion regarding the purpose of hollow-point bullets was “speculative.” See 932 So. 2d at 1284. The same reasoning holds true relating to an investigator’s opinion on whether self-defense was involved.

Sosa-Valdez v. State, 785 So. 2d 633 (Fla. 3d DCA 2001), the co-defendants were convicted of armed robbery, carjacking, kidnapping, and burglary. Their theory of defense was that the entire incident had been staged to allow the participants to keep a lot of money for themselves by pretending the funds had been stolen from the alleged victim, Mr. Lagru. See id. Therefore, it was harmful error to allow the lead detective to opine that Mr. Lagru was not involved in a set-up. See id. at 634.

To the extent that evidence of self-defense is a matter for expert opinion, not lay testimony, we note that the medical examiner opined regarding the nature of the victim’s wounds and the several scenarios under which the stab or poke wounds could have been made. If the issue of self-defense is appropriate for expert opinion only, then Investigator Walton was never qualified as an expert in assessing the causes and circumstances of the infliction of wounds. The State’s argument that Walton could have been qualified as an expert is speculative, given this record.

The State correctly notes that, under section 90.701(1), even the opinion testimony of a lay witness may be admissible where “[t]he witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party.” The State’s argument that this statute allows the challenged testimony to be heard by the jury is unconvincing, for three reasons. First, 1) the factual matter of what the investigator observed at the crime scene is distinctly different from 2) his opinion regarding what had happened, i.e., the circumstances of the stabbing. See Somerville, 626 So. 2d at 1072 (concluding that a witness’ relevant opinion that he believed a class ring was stolen was not demonstrably based on anything perceived by him, so that section 90.701 did not allow its admission into evidence). The witness could readily, and with equal accuracy and adequacy, communicate to the jury what he had seen without relying on opinions and inferences. Second, Walton’s opinion ruling out self-defense prejudiced the defense, for reasons that will be discussed, infra. Third, if Walton’s opinions and inferences relating to self-defense “require a special knowledge, skill, experience, or training,” then section 90.701(2) precludes the testimony. He was not qualified as an expert. See Nardone, 798 So. 2d at 873-74 (rejecting State’s contention that the officer’s testimony was properly admitted as expert opinion regarding how an aluminum strip from a planter was used in the commission of a crime, absent an adequate predicate demonstrating the witness’ awareness of how the defendant had actually used the aluminum strip). Even relevant evidence is inadmissible where, as occurred here, “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury.” § 90.403, Fla. Stat. (2006).

To the extent that the State relies on the facts in Floyd to support the admission of Investigator Walton’s lay opinion testimony, we find those facts are materially distinguishable for two reasons. First, the officers’ testimony in Floyd was more closely related to what they had personally observed at the residence where the elderly victim sustained multiple stab wounds, and the content fell “within the permissible range of lay observation and ordinary police experience,” i.e., that a Kleenex box appeared to have been knocked off the dresser, that a tablecloth found lying on the bed looked as if someone had wiped off an object with blood on it, that a laceration on the victim’s nose appeared to result from being “smacked in the face,” and that the nose wound was consistent with being struck while the eyeglasses were being worn during a fight or struggle. See 569 So. 2d at 1231-32. Second, although the officers should not have been allowed under section 90.701(2) to testify to medical matters such as whether all the victim’s injuries occurred at the same time and whether the wound atop the victim’s hand was defensive, the Florida Supreme Court in Floyd concluded that this error was cumulative and harmless, given the medical examiner’s testimony regarding the timing of the wounds and other testimony indicating that the nose wound was consistent with a fight or struggle. See 569 So. 2d at 1232.

Defense counsel objected on hearsay grounds too, whereupon the State immediately concluded the direct examination of Investigator Walton. The challenged testimony is hearsay. Walton testified that, in his experience, the knife is held out to fend off someone, which would not explain Mr. Lamar’s wound. This would have resulted from the knife-wielder’s bringing it down into the victim’s chest with a great deal of force. The hearsay objection was properly made when the investigator started to testify about what two witnesses had advised in their statements.

Because it was error to allow Investigator Walton to opine to the jury that he had ruled out self-defense, the follow-up issue is whether the State has met its burden under DiGuilio, 491 So. 2d at 1139, to show there is no reasonable possibility that the admission of this testimony affected the verdict. The State misperceives the “harmless error” test when it relies solely on “the ample evidence of Appellant’s guilt.” Even if the evidence in a case is overwhelming, the Florida Supreme Court has stated that the analysis in DiGuilio focuses on something more. See Cardenas v. State, 867 So. 2d 384, 395 (Fla. 2004) (noting the “harmless error” test is not merely a “sufficiency-of-the-evidence” test). Appellant correctly notes that just because defense counsel acknowledged at trial that the evidence might support a finding of guilt for manslaughter (given Appellant’s internally conflicting audiotaped statements given to the police during three interviews shortly after the incident), the defense really hoped for a “not guilty” verdict.

After receiving Miranda rights before the first interview, Appellant told the police that Mr. Lamar had accidentally stabbed himself when he fell on the knife he was carrying. She denied any history of domestic violence between the victim and herself. When the police advised her of certain inconsistencies between her story and the crime-scene evidence, Appellant stated in her second interview that she believed Mr. Lamar had tripped on the carpet while carrying a plate and a beer can. Appellant insisted that Mr. Lamar had never hit her. She denied stabbing Mr. Lamar and claimed not to know how the knife had ended up in the victim’s chest. In her third interview, Appellant changed her story and said that she and Mr. Lamar had argued at the time of the incident. Appellant told the police that Mr. Lamar had a pattern of getting intoxicated and taking Lortabs until he “freaked out.” She stated that before the stabbing, Mr. Lamar wanted sex and attacked her by grabbing her hair; choking her; repeatedly punching, slapping, and kicking her; and hitting her all over with his fists. She had warned Mr. Lamar to leave her alone. He had thrown a chair at Appellant. Appellant told the authorities that when she could not take this treatment anymore, she reached for a nearby knife as Mr. Lamar lunged at her, resulting in his stab wound. Appellant told the police that she had lied to them initially because she was scared and did not think anyone would believe the truth. The record demonstrates that Appellant relied partly on a theory of self-defense and did not concede her guilt of a lesser-included offense. This was not a “slam-dunk” case for the State.

The State asserts that Investigator Walton’s opinion testimony is merely cumulative to that of the medical examiner, such that no harm occurred in the admission of the challenged testimony. Although Dr. Siebert opined that some of the evidence is consistent with Appellant’s being the aggressor who teased or prodded the victim, the medical examiner testified further that other evidence is consistent with Appellant’s protecting herself from the lunging victim. Therefore, the evidence was inconclusive and disputed as to whether Appellant had acted with justifiable force in self-defense. Thus, it is misleading and incomplete for the State to conclude that Investigator Walton’s objectionable testimony is merely cumulative.

We note too that the jury could have held the opinions of the lead investigator in higher regard than the testimony of any other lay witness, thereby reinforcing the prejudice caused by Investigator Walton’s conclusions. Also, the jury could have inferred that Walton knew certain information that had not been disclosed to the jury, leading the jury impermissibly to speculate as to matters outside the record. See Martinez v. State, 761 So. 2d 1074, 1080 (Fla. 2000) (noting “there is an increased danger of prejudice when the investigating officer is allowed to express his . . . opinion about the defendant’s guilt,” and the “error in admitting improper testimony may be exacerbated where the testimony comes from a police officer”). Analogous to Kolp, 932 So. 2d at 1285, the jury’s findings as to why Appellant stabbed Mr. Lamar were critical in determining whether she had committed a crime. Because the State has not met its burden under DiGuilio to show harmless error, we are constrained to REVERSE the conviction and sentence and REMAND for a new trial.

BENTON, J., CONCURS; ALLEN, J., CONCURS IN THE JUDGMENT.

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 Miami-Dade County, David Young, Judge, Lower Tribunal No. 01-7689.

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

Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

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

GERSTEN, C.J.

Walter Lee Wright (“Wright”) appeals from his judgment and sentence, claiming the trial court erred in excluding expert testimony. We affirm.

The State charged and tried Wright for first-degree murder, armed burglary, armed robbery, and attempted carjacking. Wright’s defense was based on insanity. Prior to trial, several doctors evaluated Wright to determine whether he was: (1) competent to stand trial, (2) competent to waive his Miranda rights, and (3) legally insane at the time of the crimes.

Before the defense began to try its case-in-chief, the State argued that Wright should be foreclosed from presenting witnesses not disclosed during discovery or listed on the defense trial witness list. After conducting an inquiry, the trial court excluded two expert witnesses, Dr. Ainsley and Dr. Ruiz. The trial proceeded, and the jury convicted Wright as charged. Wright appeals the exclusion of the two witnesses.

Wright contends that the trial court erred in excluding the witnesses without performing an inquiry pursuant to Richardson v. State, 246 So. 2d 771 (Fla. 1971). Specifically, Wright posits that the trial court did not inquire into the prejudice, if any, to the prosecution, and did not explore alternative and less severe sanctions. The State asserts, inter alia, that the error, if any, in excluding the witness was harmless. We agree with the State.

In reviewing the exclusion of defense evidence, we “must determine whether the erroneously excluded evidence could have had an effect on the jury favorable to the defendant, or, in other words, could the improper exclusion have reasonably affected the outcome of the case.” Johnson v. State, 728 So. 2d 1204, 1205 (Fla. 3d DCA 1999). Here, Wright contends the two excluded expert witnesses would have testified that Wright was insane at the time he committed the charged crimes. Therefore, we must determine what effect, if any, this testimony would have had on the jury.

After careful review of the full record, we find that there was sufficient evidence presented on the issue of whether Wright was insane or not. In fact, two witnesses testified for the defense on this issue. The first witness, Dr. Frumkin, testified concerning his opinion of Wright’s mental state before, during, and after the commission of the crimes. When describing Wright’s condition during police interrogation, Dr. Frumkin stated that Wright “was in a highly psychotic delusional state.” He further explained that psychosis “means that the person has poor reality testing and you don’t know what’s real and what’s not real, they’re not able to distinguish reality.” When later asked if he believed Wright was in the same state “before the incident and the interrogation,” Dr. Frumkin answered affirmatively.

Another defense expert, Dr. Toomer, testified that:

[T]he conclusion that I reached was that at the time of the commission of the crime Mr. Wright was insane, in other words, as we say, he meets the criteria for insanity, what we call the M’Naghten Rule, but he meets the criteria for insanity and should be considered, in my opinion, insane at the time of the commission of the crime.

. . . .

His ability to know the consequences or recognize the consequences of his actions, that ability would have been impaired by virtue of his mental deficits.

Thus, Dr. Toomer clearly posited that Wright was insane when he committed the subject crimes.

In rebuttal, the State presented the testimony of Dr. Suarez. Dr. Suarez stated that Wright may have been delusional when he committed the crimes. Dr. Suarez attributed the delusion to Wright’s smoking marijuana. Further, Dr. Suarez stated that Wright’s delusion concerned his father, and had nothing to do with Wright’s shooting of the victim. Defense counsel fully cross-examined Dr. Suarez, confronting him with the contrary opinions of Drs. Frumkin and Toomer.

We turn now to the excluded witnesses. Regarding Dr. Ainsley, the only record mention of Dr. Ainsley was at a pre-trial hearing. After the State voiced concern that it had not been able to depose Dr. Ainsley, defense counsel advised the prosecutor that Dr. Ainsley probably would not be called as a witness. The record does not reveal the important nature of Dr. Ainsley’s testimony.

Next, in evaluating Dr. Ruiz’ report, Dr. Ruiz wrote that she “is inclined to say the defendant met the McNaughton [sic] Standard of Insanity,” but would like to review further records. Thus, in light of the equivocal nature of Dr. Ruiz’ report and the explicit testimony of defense witnesses Drs. Frumkin and Toomer, Dr. Ruiz’ testimony would not have added much more to the jury’s understanding of Wright’s mental condition at the applicable time. At best, it would have been cumulative.

We are confident that Drs. Ruiz and Ainsley’s testimony would not have affected the outcome of Wright’s trial. Thus, any error in excluding their testimony is harmless. Accordingly, we affirm the judgment below.

Affirmed.

COPE, J. (dissenting).

I respectfully dissent. The defendant was charged with first-degree murder and the defense was insanity. There is no doubt that defendant-appellant Walter Wright was mentally ill before, during, and after the crime. The issue for trial was whether the defendant met the definition of legal insanity.

Dr. Ruiz evaluated the defendant during the pretrial phase of proceedings and she filed a written report. Defense counsel failed to list her as a witness. When the State objected that the witness was unlisted, defense counsel explained that because Dr. Ruiz had been involved in the earlier proceedings, he believed that she was on the witness list.

The trial court failed to conduct a proper Richardson inquiry. See Richardson v. State, 246 So. 2d 771 (Fla. 1971); see also State v. Evans, 770 So. 2d 1174, 1183 (Fla. 2000). The trial court had run out of patience with defense counsel, who had failed to list other witnesses as well, and excluded the witness without considering the Richardson factors.

A Richardson error is subject to harmless error analysis, but I do not believe that we can say that the error was harmless beyond a reasonable doubt. It is obvious that the defendant was mentally ill. He said bizarre things, slept next to a dog house, and repeatedly took his clothes off before, during, and after the murder in this case. The only issue is whether the defendant fit within the definition of legal insanity. See Patton v. State, 878 So. 2d 368, 374-75 (Fla. 2004) (stating that Florida follows a modified version of the M’Naghten rule). Dr. Ruiz had filed a report in which she said that she would like to have more information about the defendant, but was inclined to think that the defendant was legally insane.

Under Florida’s Criminal Standard Jury Instruction 3.6(a), the defense of insanity is an affirmative defense which the defendant must prove by clear and convincing evidence. In this case, Dr. Ruiz would have provided testimony on behalf of the defendant.

The State expert, Dr. Suarez, had testified in pretrial deposition that he had based his opinion in part on the opinion of Dr. Ruiz. By pretrial order, the court had ruled that Dr. Suarez would not be allowed to say that he had looked at Dr. Ruiz’ report. The defense position in substance, however, was that the opinion of Dr. Suarez was not sufficiently supported, and that Dr. Ruiz’ testimony was relevant to contradict Dr. Suarez’ opinion.

I acknowledge that Dr. Ruiz’ testimony was somewhat equivocal, because in her initial opinion she stated that she would like to have more information, but was inclined to think that the defendant met the modified version of the M’Naghten test. Had there been a proper Richardson inquiry, we would have a record pinning down exactly what Dr. Ruiz’ opinion was at the time of trial, as well as an evaluation of what prejudice (if any) would be suffered by the State if Dr. Ruiz were allowed to testify. I do not believe we can say the error was harmless beyond a reasonable doubt.

Not final until disposition of timely filed motion for rehearing.

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An Appeal from the Circuit Court for Miami-Dade County, Julio E. Jimenez, Judge, Lower Tribunal No. 04-3732.

Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

Before COPE, CORTIÑAS, and LAGOA, JJ.

PER CURIAM.

While we affirm Appellant’s conviction and sentence for robbery without a firearm or weapon, we reverse and remand the case to the trial court to correct a scrivener’s error found in the Orders of Supervision. As the State properly concedes, the Orders of Supervision incorrectly reflect that Appellant was convicted of robbery with a deadly weapon or firearm. Because the trial court orally pronounced adjudication of guilt in accordance with the jury’s verdict of robbery without a firearm, on remand, the trial court shall correct the scrivener’s error contained in the Orders of Supervision. Appellant’s presence is not required for this ministerial correction. See Rincon v. State, 974 So. 2d 1153 (Fla. 3d DCA 2008).

Affirmed in part, reversed in part, and case remanded for further proceedings consistent with this opinion.

Not final until disposition of timely filed motion for rehearing.

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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Ana I. Gardner, Judge, L.T. Case No. 01-015114. CF10A.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

In returning this case to us, the Supreme Court instructed us to reconsider our decision in light of the Court’s subsequent decision State v. Paul, 934 So.2d 1167 (Fla. 2006). We now turn to that task.

In our original decision, relying on our prior decisions Paul v. State, 912 So.2d 8 (Fla. 4th DCA 2005); Schwenn v. State, 898 So.2d 1130 (Fla. 4th DCA 2005); Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001); and Pryor v. State, 755 So.2d 155 (Fla. 4th DCA 2000), we affirmed three separate convictions arising from a single criminal episode. We relied on Blockburger¹ principles to conclude that the crimes could be separately punished. The Supreme Court then granted review of Paul and reversed our decision in that case. 934 So.2d 1167.

In Paul, the Supreme Court confronted separate punishments for multiple criminal acts falling under the lewd and lascivious conduct statute.² The acts all occurred during a single encounter but involved distinct episodes. The court held that some of the acts could be separately punished, but some could not.

In this case, the multiple punishments include one conviction for lewd and lascivious molestation and two convictions for sexual battery.³ All criminal acts occurred during a single encounter in the same space between the same persons, lasting no more than five minutes. Applying the Supreme Court’s analysis in Paul, we now conclude that the separate convictions for sexual battery were improper. Both acts of sexual battery charged by the State in this case involve exactly the same elements without temporal or spatial separation. Because both involve exactly the same elements, dual convictions and punishments are not permitted. See Paul, 934 So.2d at 1174 (holding that if one cannot say that each offense has an element that the other does not, dual convictions and punishments are not permitted).

Because the lewd and lascivious molestation conviction involved conduct occurring during the same criminal episode as the sexual battery, we must also reconsider whether it may properly result in separate punishment. We have no difficulty in ascertaining that the lewd and lascivious molestation offense contains an element not found in the sexual battery conviction, and vice versa. See Binns v. State, 979 So.2d 439, 442 (Fla. 4th DCA 2008) (holding that crimes of lewd and lascivious acts and sexual battery each contain an element that the other does not). That means we must next determine whether separate punishments are forbidden by Florida law.⁴

This turns on whether the separate offenses of sexual battery and lewd and lascivious molestation are intended to punish “the same primary evil.” See Paul, 934 So.2d at 1175 (where crimes are not intended to punish same primary evil but address different evils, and two crimes are not merely degree variants of the same core offense, separate punishments are authorized by § 775.021(4)(b)). Sexual battery is the “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 794.011(1)(h), Fla. Stat. (2007). Lewd and lascivious molestation is the intentional touching of “the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forc[ing] or entic[ing] a person under 16 years of age to so touch the perpetrator.” § 800.04(5)(a), Fla. Stat. 2007.

In this case, the sexual battery offense and the lewd and lascivious molestation offense each contain an element the other lacks. Therefore separate punishments for sexual battery and lewd and lascivious molestation during the same episode are not prohibited.

We reverse the imposition of separate sentences for sexual battery and remand for the trial court to eliminate the separate punishment for one of the two sexual battery counts.

Reversed.

STONE and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Cynthia G. Imperato, Judge, L.T. Case No. 05-18371 CF10A.

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

No appearance for appellee.

PER CURIAM.

Robert Davis entered a no contest plea to three counts of armed robbery (counts I, II, and III) and three counts of armed kidnapping (counts IV, V, and VI). On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm Davis’s convictions and sentences, and grant counsel’s motion to withdraw, but remand to correct a scrivener’s error in the written judgment. See Murphy v. State, 977 So. 2d 748 (Fla. 2d DCA 2008). The judgment mistakenly indicates that Davis was convicted of only two offenses: count I, armed robbery and count II, armed kidnapping.

STONE, GROSS and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Petition Alleging Ineffective Assistance of Appellate Counsel — Original Jurisdiction.

Eddie Riley, pro se, Petitioner.

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

PER CURIAM.

Eddie Riley presents a timely claim of ineffective assistance of appellate counsel. We find no merit to petitioner’s assertion that appellate counsel should have presented an argument that the trial court erred in denying his motion to suppress statements made to the police. We conclude, however, that appellate counsel was ineffective for failing to raise an issue of reversible error in the jury instructions.¹ A large portion of our analysis is predicated upon the supreme court’s holding State v. Abreau, 363 So. 2d 1063 (Fla. 1978), that the court’s failure to instruct on an offense one step removed from the charged offense constitutes per se reversible error. In light of recent supreme court precedent, however, it is unclear whether the reasoning behind this precedent is still valid. We, therefore, also certify a question of great public importance concerning the continuing validity of the holding in Abreau.

Riley was charged in Count I of an amended information with capital sexual battery committed between November 1, 2002, and May 1, 2003, in violation of section 794.011(2)(a), Florida Statutes. The matter proceeded to trial, and as to Count I, defense counsel requested that the jury be instructed on simple battery as a lesser included offense. The trial court denied that request, opining that simple battery was not a lesser included offense because it requires a touching against the will of the victim, whereas sexual battery committed on a victim under 12 does not require a lack of consent, nor was lack of consent alleged in the amended information. As a consequence, the jury was instructed only on the charged offense and attempted capital sexual battery, and returned a verdict finding petitioner guilty as charged on Count I.

As the state now concedes, the trial court’s reasoning in denying the request for an instruction on battery was erroneous. See Khianthalat v. State, 935 So. 2d 583 (Fla. 2d DCA 2006), approved, 974 So. 2d 359 (Fla. 2008) (in a prosecution for sexual battery on a child under 12, lack of consent is always an element because of the conclusive presumption that a child that age cannot consent, and thus the offense always includes simple battery as a necessarily included offense); see also Caulder v. State, 500 So. 2d 1362 (Fla. 5th DCA 1986) (simple battery is a necessarily lesser included offense of capital sexual battery). Because simple battery was a necessarily lesser included offense, the trial court had no discretion but to grant defense counsel’s request. See State v. Wimberly, 498 So. 2d 929 (Fla. 1986); King v. State, 911 So. 2d 857 (Fla. 1st DCA 2005). The failure to give a requested instruction on a lesser included offense only one step removed from the offense charged is per se reversible error, not subject to a harmless error analysis. See State v. Abreau, 363 So. 2d at 1063; Johnson v. State, 695 So. 2d 787 (Fla. 1st DCA 1997). While acknowledging the trial court erred in denying the requested instruction, the state relies on authorities recognizing that the failure to instruct on a lesser included offense two steps or more removed from the offense for which the defendant is convicted is harmless error. Abreau, 363 So. 2d at 1063; Crespo v. State, 647 So. 2d 295 (Fla. 3d DCA 1994). According to the state, these authorities dictate that the error here was harmless and appellate counsel cannot be faulted for failing to raise it because lewd or lascivious molestation of a child under 12, a violation of section 800.04(5)(b), is the next-step removed lesser included offense of capital sexual battery. Thus, the state reasons that simple battery, a misdemeanor, is more than one-step removed from capital sexual battery and any error in failing to instruct the jury on simple battery was harmless. We find no merit to this contention.

Lewd or lascivious molestation is not a necessarily lesser included offense of capital sexual battery, and under the law as it existed prior to the 1999 amendment to section 800.04, it likewise was not a permissive lesser included offense of any form of sexual battery. See Welsh v. State, 850 So. 2d 467 (Fla. 2003). For post-1999 offenses, lewd or lascivious battery of a child between 12 and 15 under section 800.04(4) may be a permissive lesser included offense of sexual battery. See Williams v. State, 957 So. 2d 595 (Fla. 2007). However, unlike lewd or lascivious battery of a child between 12 and 15, lewd or lascivious molestation of a child under 12 requires that the touching be “in a lewd or lascivious manner.” See § 800.04(5), Fla. Stat. Thus, lewd or lascivious molestation is not a permissive lesser included offense of capital sexual battery where, as here, the information does not allege that the touching was in a lewd or lascivious manner. See Garcia v. State, 976 So. 2d 676 (Fla. 2d DCA 2008).

The foregoing notwithstanding, even if lewd or lascivious molestation was a potential lesser included offense here, the simple fact is that the jury was not instructed on that offense. Had it been so instructed without objection, the trial court’s error in failing to give a simple battery instruction might be subject to a harmless error analysis. See Caulder, 500 So. 2d at 1365-66 (the failure to instruct on simple battery as a necessarily lesser included offense of capital sexual battery is harmless where the jury was instructed without objection, albeit erroneously, on lewd assault as a lesser included offense). However, the Abreau “step” analysis should only be undertaken where the instruction that was given and the omitted instruction relate to a lesser included offense. See State v. Bruns, 429 So. 2d 307, 309 (Fla. 1983); Overway v. State, 718 So. 2d 308, 311 n.4 (Fla. 5th DCA 1998) (harmless error test in Abreau does not apply where jury was not instructed on the next lesser offense). As to Count I, the jury was instructed only on the charged offense and attempt, and as the court observed in Bruns, an attempt to commit the charged offense does not constitute a “step” under Abreau. Simple battery was therefore the lesser offense one-step removed from the charged offense in Count I, and the trial court’s error in denying defense counsel’s request for an instruction on that offense was not subject to a harmless error analysis. Because per se reversible error occurred, appellate counsel’s failure to pursue this issue constituted a substantial deficiency that materially prejudiced petitioner.

The sole remaining issue concerns the sort of relief Riley should be granted. Where appellate counsel is found to be ineffective, an appropriate remedy is to grant a new appeal limited to the issue overlooked by original counsel. That remedy is apt where, for example, a review of the record as a whole is necessary in order to assess whether a particular error can be deemed harmless, or whether an error is fundamental in nature. See, e.g., Mohr v. State, 927 So. 2d 1031 (Fla. 2d DCA 2006); York v. State, 891 So. 2d 569 (Fla. 2d DCA 2004). However, where a second appeal would be redundant or unnecessary, it is appropriate to simply grant petitioner the relief to which he would be entitled had the issue been raised in the original appeal. See, e.g., Grimsley v. State, 967 So. 2d 1132 (Fla. 2d DCA 2007); Jones v. State, 964 So. 2d 855 (Fla. 2d DCA 2007); Evans v. State, 904 So. 2d 638 (Fla. 1st DCA 2005). In this case, whether the error is fundamental is not in question, the harmless error doctrine is not applicable, and we can discern no other reason why a second appeal would be necessary.

We recognize, however, as set out in Judge Wolf’s concurring opinion, that the supreme court has demonstrated a trend to limit the concept of per se reversible error. We, therefore, certify the following question to be one of great public importance:

BASED ON THE REASONING OF GALINDEZ V. STATE, 955 SO. 2D 517 (FLA. 2007), MAY A COURT FIND THAT THE FAILURE TO INSTRUCT THE JURY ON THE NEXT LESSER INCLUDED OFFENSE CONSTITUTES HARMLESS ERROR?

Accordingly, the petition alleging ineffective assistance of appellate counsel is GRANTED, petitioner’s conviction and sentence for Count I are REVERSED, and the matter is REMANDED for a new trial as to that count.

BARFIELD and PADOVANO, JJ., CONCUR; WOLF, J., CONCURS WITH OPINION.

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Notes:

WOLF, J., CONCURRING.

The majority opinion mandates that appellant receive a new trial because the harmless error rule cannot be applied where the trial court fails to instruct the jury on the next lesser included offense from the offense for which the defendant was convicted. The opinion correctly concludes that the harmless error analysis of State v. Abreau, 363 So. 2d 1063 (Fla. 1978), is inapplicable in this case because the offense is only one step removed from the primary offense. The rationale for not applying the harmless error test in this situation is that it deprives the defendant of the right to a jury pardon.

Although regularly criticized, the concept of a “jury pardon” seems to remain firmly entrenched in Florida law, at least insofar as it relates to determining whether an error is per se reversible on direct appeal. Sanders v. State, 946 So. 2d 953, 958 (Fla. 2006), which held that a postconviction claim that trial counsel was ineffective for failing to request an instruction on a necessarily lesser included offense was subject to summary dismissal because the defendant could not establish prejudice, the court nonetheless noted that:

[D]espite their suspect pedigree, jury pardons have become a recognized part of the system; so much so that, in direct appeals, “[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.” Reddick, 394 So.2d at 418. Such a standard is appropriate on direct review because “it would be difficult for an appellate court to conclude beyond a reasonable doubt that a jury in a particular case, given the opportunity, would not disobey the law and grant a pardon.” Sanders, 847 So.2d at 507 (quoting Hill, 788 So.2d at 319).

Accordingly, I am constrained to agree with the majority concerning the result in this case. In my opinion, however, in light of Galindez v. State, 955 So. 2d 517 (Fla. 2007), the failure to instruct on the lesser included offense should be harmless where no reasonable jury could have returned a verdict for the lesser included offense. I would, therefore, certify the following question as one of great public importance:

BASED ON THE REASONING OF GALINDEZ V. STATE, 955 SO. 2D 517 (FLA. 2007), MAY A COURT FIND THAT THE FAILURE TO INSTRUCT THE JURY ON THE NEXT LESSER INCLUDED OFFENSE CONSTITUTES HARMLESS ERROR WHERE NO REASONABLE JURY COULD HAVE RETURNED A VERDICT FOR THE LESSER OFFENSE?

My question differs from the majority’s as I recognize that this is a case where no reasonable jury could have found the defendant guilty of simple battery.² This is, therefore, the classic case to recede from the ill-advised holding of Abreau.

Appellant was found guilty of sexual battery on a victim under 12 (capital sexual battery). He now claims his appellate counsel was ineffective for failing to assert that the trial court erred by not instructing the jury on simple battery. The undisputed facts show that appellant repeatedly molested his girlfriend’s two daughters by fondling and putting his fingers into their vaginas. Appellant gave an inane version of these events, saying he was inspecting the girls’ breasts and vaginas for breast cancer and to determine if they were virgins. Appellant admitted to the police that he conducted numerous inspections. The mother testified that she never gave appellant the right to conduct these inspections. No reasonable jury would have issued a jury pardon in this case and returned a verdict of simple battery.

This case demonstrates the very folly in having an inflexible per se reversible error rule and not allowing courts to consider the circumstances of a particular case to determine whether harmful error occurred.

The Florida Supreme Court has begun to recede from the per se reversible error doctrine in other circumstances. See State v. Schopp, 653 So. 2d 1016 (Fla. 1995) (Richardson discovery violations are no longer per se reversible). The Schopp decision reflects a recognition that the mere fact that it may be difficult to determine if error is harmless in certain circumstances does not justify a reversal (with all its implications, including lost witnesses, unnecessary trauma for victims, and additional burdens on an overburdened judicial system) where it can be determined, beyond a reasonable doubt, that the error did not affect the outcome of the case.

Recently, in Galindez, 955 So. 2d at 517, the supreme court determined that violations of the Apprendi and Blakely doctrines were subject to the harmless error analysis. Specifically, the court found any error in the trial court’s failure to allow a jury to make a determination concerning victim injury points for penetration was harmless where no reasonable jury would have returned a verdict finding there was no penetration of the victims. Id. at 524. In Galindez, 955 So. 2d at 523, the supreme court cited to Delvalle v. State, 653 So. 2d 1078, 1079 (Fla. 5th DCA 1995), where the Fifth District held that an error regarding a lesser included offense which deprived the defendant of a jury pardon could be harmless because, given the evidence at trial, it was inconceivable that any rational jury could have returned a verdict finding that there was no firearm involved in the commission of the charged offenses. While Delvalle involves a slightly different set of circumstances, it indicates a willingness to apply the harmless error doctrine to a somewhat similar set of circumstances.

If a harmless error analysis can be applied to the failure to allow a jury to determine whether penetration took place in Galindez, there appears to be no rational basis for not allowing the same analysis to take place in the instant case.

Further, while it is my belief that no rational jury could have returned a verdict of simple battery in this case and this should allow us to affirm, I am cognizant of precedent and would ask the Florida Supreme Court to readdress this important issue.

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

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Notes:

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Courtesy of David Edelstein

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An Appeal from the Circuit Court for Miami-Dade County, Roger A. Silver, Judge, Lower Tribunal Nos. 06-2776, 05-7654.

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

Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.

Before WELLS, LAGOA, and SALTER, JJ.

J.N. appeals a juvenile court order finding him in violation of his juvenile probation. As provided in the State’s confession of error, the lower court was without jurisdiction to entertain the violation of probation affidavit because J.N. had successfully completed his six-month probationary term prior to the filing of the affidavit.¹ Therefore, the order finding J.N. in violation of his probation is reversed and we remand with instructions to discharge J.N. from the two cases for which he was on probation.

Reversed and remanded.

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Notes:

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Courtesy of David Edelstein

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