Florida Criminal Law Opinions

Joseph Angel Comptis, Appellant,
v.
The State of Florida, Appellee.No. 3D07-1558.

District Court of Appeal of Florida, Third District.

Opinion filed October 22, 2008.

An Appeal from the Circuit Court for Miami-Dade County, John C. Schlesinger, Judge, Lower Tribunal No. 00-15028.

Joseph Angel Comptis, in proper person.

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

Before GERSTEN, C.J., and WELLS and CORTIÑAS, JJ.

PER CURIAM.

We dismiss Joseph Angel Comptis’s appeal from the trial court’s order denying his motion for new trial or alternatively for judgment of acquittal as this Court does not have jurisdiction to review this type of order. See Fla. R. App. P. 9.140.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bernard Hills, Appellant,
v.
The State of Florida, Appellee.No. 3D07-1488.

District Court of Appeal of Florida, Third District.

Opinion filed October 22, 2008.

An Appeal from the Circuit Court for Miami-Dade County, Lawrence A. Schwartz, Judge, Lower Tribunal No. 06-35170.

Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.

Before GERSTEN, C.J., CORTIÑAS, J., and SCHWARTZ, Senior Judge.

GERSTEN, C.J.

Bernard Hills (“Hills”) appeals his conviction and sentence for burglary and petit theft, alleging a defect in the verdict form. We reverse.

Hills was tried on two counts: count one for burglary of an unoccupied structure, and count two for petit theft. At the jury instruction charge conference, both sides agreed to the following verdict form:

VERDICTWe the jury, in Miami-Dade County, Florida, this ____day of ________, ________, find the defendant, BERNARD HILLS,

COUNT 1:

[] GUILTY OF BURGLARY TO AN UNOCCUPIED STRUCTURE. [OR]

[] GUILTY OF TRESPASS, as a lesser included offense.

[] GUILTY OF PETIT THEFT

[] NOT GUILTY

So say we all,

_____________________
Foreperson

While instructing the jury, the trial judge noticed that the form did not separate the two counts. Therefore, the trial judge wrote in “COUNT 2″ above the third box, guilty of petit theft. Apparently, no one noticed that count one did not have a box for the jury to mark “not guilty” on the burglary charge. The jury checked off the first box under “COUNT 1″ and the first box under the written-in “COUNT 2.” On appeal, Hills asserts that the trial court fundamentally erred in submitting a verdict form that did not contain an option for not guilty on the burglary charge. The State, on the other hand, contends that there was no error. The State posits that if the jury had wanted to acquit the defendant on the burglary charge, it could simply have left both boxes under “COUNT 1″ empty. We agree with Hills, and reverse and remand for a new trial.

Where there is a critical deficiency in the verdict process, a court cannot infer or assume the jury’s interpretation. See Braley v. Gladden, 403 F.2d 858 (9th Cir. 1968). In Braley, as here, the trial court inadvertently failed to supply the jury with a form for a not guilty verdict. 403 F.2d at 859. The court reversed for a retrial, reasoning:

While it may not be unreasonable to assume that the jury inferred from the instructions that it might be empowered to write its own form of a verdict of not guilty, it is equally reasonable to assume that the jury inferred that the judge intended that only one verdict was possible, a verdict of guilty upon the one and only form which he supplied.

403 F.2d at 860.

Here, although the trial court orally instructed the jury that it could return a verdict of not guilty, the verdict form did not give the jury a clear option to find the defendant not guilty on the burglary charge. Additionally, the trial court instructed the jury that “[o]nly one verdict maybe[sic] returned as to . . . each crime charged.” Thus, we are not certain that the jury understood its options, authority, or responsibility on the burglary count. The jury could have been confused as to whether they could find the defendant not guilty on this count.

Accordingly, we reverse and remand for a new trial on count one, burglary of an unoccupied structure.

Reversed and remanded for a new trial.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

MARCO CADEJUSTE, Appellant,
v.
STATE OF FLORIDA, Appellee.No. 4D07-1370.

District Court of Appeal of Florida, Fourth District.

October 22, 2008.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Gary L. Sweet, Judge, L.T. Case No. 562004CF001382B.

Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.

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

ROBIN ROSENBERG, Associate Judge.

The defendant, Marco Cadejuste, raises two distinct issues on appeal in this case. The first issue addresses whether the trial court erred in allowing an attorney to represent Cadejuste at trial after this same attorney had withdrawn from representing Cadejuste in the past based on a conflict of interest arising out his joint representation of Cadejuste and his co-defendant. The second issue concerns whether the trial court erred in denying Cadejuste’s motion to suppress based on the deficiency of the Miranda warnings and the involuntariness of Cadejuste’s confession. We reverse the conviction based on the conflict of counsel and remand for a new trial. We do not address the issues arising from the motion to suppress.

FACTUAL SUMMARYThe defendant, Marco Cadejuste, was charged by information with four counts of attempted armed robbery while wearing a mask, two counts of attempted armed robbery of a structure while masked, two counts of resisting an officer with violence, burglary of an occupied dwelling and possession of a firearm by a convicted felon while masked. Cadejuste later entered a plea on some of the counts. Cadejuste went to trial on three counts of attempted robbery while wearing a mask, two counts of resisting an officer with violence, trespass of an occupied dwelling (a lesser offense of burglary of an occupied dwelling) and possession of a firearm by a felon while masked.

Cadejuste initially was represented by Patrick MacRae, who was an Assistant Public Defender at the time that he was appointed at first appearance on March 26, 2004. MacRae also represented the codefendant, who is Cadejuste’s brother, Gieuvious Cadejuste. MacRae filed a formal notice of appearance as the assigned Assistant Public Defender on May 18, 2004. One week later, the Public Defender’s office moved to withdraw due to a conflict in representing both Cadejuste and his co-defendant, because “their interests are so adverse and hostile” that the Public Defender could not represent both brothers. The trial court granted the motion and appointed other counsel to represent Cadejuste on May 28, 2004. MacRae continued to represent Cadejuste’s co-defendant through at least December 2004.

Eventually, MacRae left the Public Defender’s office and entered private practice. While in private practice, MacRae was appointed by the court to represent Cadejuste on September 22, 2006, after Cadejuste had been represented by several other counsel following MacRae’s initial representation. At a pre-trial hearing on January 12, 2007, Cadejuste objected to MacRae’s representation and informed the court of MacRae’s conflict of interest based on his prior representation of Cadejuste’s codefendant. The court overruled Cadejuste’s objection and made no further inquiry.

At a subsequent hearing on Cadejuste’s motion to represent himself pro se, Cadejuste agreed to have the court strike his motion. and agreed to have MacRae represent him. The court again failed to explain the adverse consequences a conflict might pose and made no inquiry of Cadejuste.

LEGAL PRINCIPLES“An actual conflict of interest that adversely affects counsel’s performance violates the Sixth Amendment of the United States Constitution.” Larzelere v. State, 676 So. 2d 394, 403 (Fla. 1996). The assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23 (1967); Holloway v. Arkansas, 435 U.S. 475, 489 (1978). Implicit in the Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). “An actual conflict of interest can impair the performance of a lawyer and ultimately result in a finding that the defendant did not receive the effective assistance of counsel.” Lee v. State, 690 So. 2d 664, 667 (Fla. 1^st DCA 1997); Cuyler v. Sullivan, 446 U.S. 335, 345 (1980); see also Holloway, 435 U.S. at 481. When defense counsel discloses to the court that a conflict of interest exists, the court either must appoint separate counsel or “take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” Holloway, 435 U.S. at 484.

A defendant’s fundamental right to conflict-free counsel can be waived. Larzelere, 676 So. 2d at 403. “For a waiver to be valid, the record must show that the defendant was aware of the conflict of interest that the defendant realized the conflict could affect the defense, and that the defendant knew of the right to obtain other counsel.” Id.; United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993), cert. denied, 510 U.S. 901 (1993). “It is the trial court’s duty to ensure that a defendant fully understands the adverse consequences a conflict may impose.” Larzelere, 676 So. 2d at 403; Winokur v. State, 605 So. 2d 100 (Fla. 4th DCA 1992), rev. den’d, 617 So. 2d 322 (Fla. 1993).

DISCUSSIONIn this case, the Public Defender’s office disclosed to the court that a conflict of interest existed when it initially represented Cadejuste and his co-defendant. The Office of the Public Defender of a given circuit is considered to be a “firm” for “purposes of construing the disciplinary rules governing conflicting interests of clients and imputed disqualification.” Toneatti v. State, 805 So. 2d 112, 114 (Fla. 4th DCA 2002) (public defender’s joint representation of co-defendants raises a potential conflict which should have put the court on notice to conduct an inquiry into the conflict prior to trial to determine whether conflict-free counsel should have been appointed or to obtain a waiver from the parties). Based on the Public Defender’s disclosure, the court appointed other counsel to represent Cadejuste. In that instance, the court acted in accordance with Holloway.

However, when MacRae was appointed as a private attorney to represent Cadejuste for the second time and Cadejuste raised an objection based on a conflict of interest due to MacRae’s prior representation of the co-defendant, the court neither appointed new counsel nor made any inquiry as to the basis of the asserted conflict of interest or whether the conflict would impair Cadejuste’s right to the effective assistance of counsel. The court’s failure in this regard deprived Cadejuste of the guarantee of “assistance of counsel.” See Holloway, 435 U.S. at 484. Under Holloway, it is reversible error to require an attorney to represent co-defendants on the same case once the attorney tells the court of the actual or potential conflict between the co-defendants. Because Cadejuste’s own attorney told the court that it was an actual conflict to represent both co-defendants, MacRae’s subsequent representation of Cadejuste, in the absence of a valid waiver by Cadejuste, constitutes reversible error.

Further, the trial court failed to ensure that Cadejuste understood the implications of proceeding with MacRae as his attorney and failed to secure a valid waiver from Cadejuste. The actual conflict without a waiver resulted in reversible error. See Delarosa v. State, 757 So. 2d 1284 (Fla. 4th DCA 2000). The proceeding in which the court struck Cadejuste’s motion to represent himself pro se did not constitute a waiver of his right to conflict free counsel. In fact, the court did not mention or discuss a waiver of Cadejuste’s right to conflict free counsel. The court did not engage in a colloquy to explain what right was being waived nor did the court try to ascertain if Cadejuste fully understood the conflict; furthermore, the trial court never advised Cadejuste of his right to conflict free counsel and of the adverse consequences to his defense from being represented by counsel with an actual conflict. Since the trial court failed to make a sufficient inquiry concerning the identified conflict of interest of Cadejuste’s counsel in his representation of Cadejuste, reversal and remand for a new trial is required. Crockett v. State, 620 So. 2d 1306 (Fla. 4th DCA 1993).

Cadejuste’s second argument on appeal is that his confession should have been suppressed because the Miranda warnings were deficient, the warnings were given “midstream” after a partial confession and the law enforcement officer exerted unlawful coercion in obtaining the confession. On remand, new counsel can re-visit the issues relating to the Miranda warnings addressed in such cases as Canete v. State, 921 So. 2d 687 (Fla. 4th DCA 2006), Blake v. State, 972 So. 2d 839 (Fla. 2007) and Missouri v. Seibert, 542 U.S. 600 (2004).

Reversed and Remanded.

STONE and GROSS, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

JOHN LANE, Appellant,
v.
STATE OF FLORIDA, Appellee.No. 4D07-1230.

District Court of Appeal of Florida, Fourth District.

October 22, 2008.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Ilona Holmes, Judge, L.T. Case No. 03-20948 CF10A.

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

Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

STONE, J.

We affirm, without discussing, Lane’s conviction and sentence for first-degree murder and convictions on two counts of robbery. We reverse the robbery sentences as unauthorized.

The indictment for the two armed robbery counts reads, in relevant part, that “during the commission of this felony JOHN S. LANE carried, displayed or used a firearm, to wit: a handgun, contrary to Section 812.13(1) and (2) (a) and 775.087 of the Florida Statute.”

Section 775.087, Florida Statutes, provides, in pertinent part:

(2) (a) 1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:

***c. Robbery;

***and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years . . . .

***3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

§ 775.087(2)(a)1 & 3, Fla. Stat. (emphasis added).

Known as the “10-20-Life” statute, section 775.087 “provides for the enhancement of a crime where a firearm is possessed or used during the commission of certain enumerated crimes.” Jackson v. State, 852 So. 2d 941, 944 (Fla. 4th DCA 2003). To enhance the sentence pursuant to this statute, “the grounds for enhancement must be charged in the information and the jury must make a factual finding concerning those grounds.” Coke v. State, 955 So. 2d 1216, 1217 (Fla. 4th DCA 2007) (internal quotation and citation omitted).

In Jackson, 852 So. 2d at 944, this court reversed the enhanced sentence pursuant to section 775.087(2)(a)3 where the defendant “was not charged with `discharging’ a firearm during the commission of said felony, or of inflicting death or great bodily harm as the result of such.” There, “the information merely charged that Jackson had `carried’ a firearm.” Id. However, this court concluded that the “allegation of `carrying’ a firearm can sustain a sentence under section 775.087(2)(a)1″ and remanded with instructions to resentence pursuant to the proper subsection. Id. at 944-45; cf. Coke, 955 So. 2d at 1217 (affirming the twenty-five year minimum mandatory enhancement where the information (1) expressly referred to the enhancement statute, and (2) alleged that defendant shot victim in the legs, which “advised the defendant of the `great bodily harm’ element”).

The trial court sentenced Lane to life without parole on count I (murder), and to life in prison on both counts II and III (armed robbery), with a twenty-five year mandatory minimum sentence under section 775.087(2) and (3).

The indictment did not allege that Lane discharged the firearm or that as a result of that, death or great bodily harm was inflicted. The state concedes that the twenty-five year mandatory minimum sentence “should be stricken.”

Similar to the result in Jackson, we remand for re-sentencing pursuant to section 775.087(2)(a)1, as it appears that the allegation that Lane “carried” a firearm “can sustain a conviction under” that section. Jackson, 852 So. 2d at 944. The other sentencing issue raised is not considered, as it is moot.

WARNER AND DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Roy Firganza, Appellant,
v.
The State of Florida, Appellee.No. 3D07-690.

District Court of Appeal of Florida, Third District.

Opinion filed October 22, 2008.

An appeal conducted pursuant to Anders v. California, 386 U.S. 738 (1967), from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge, Lower Tribunal No. 03-3496.

Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant; Roy Firganza, in proper person.

Bill McCollum, Attorney General, for appellee.

Before COPE, CORTIÑAS, and LAGOA, JJ.

PER CURIAM.

We reverse that portion of the trial court’s Order of Revocation of Probation titled “FAILURE TO PAY COURT COSTS” which provides as follows:

Violation of Condition (L-8A) of the Order of Probation, by failing to make court costs payments to the probation officer, as directed in accordance with the payment instructions of the court, and as grounds for belief that the offender violated his probation, Department of Corrections Records states the offender as of July 19, 2005, has a balance of $303.00 plus 4% surcharge.

As the record clearly shows that the trial court found that the State of Florida had not met its burden on this issue, this portion of the order was erroneously entered.

We affirm as to all other issues on appeal.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Avery Souffrant, Appellant,
v.
The State of Florida Appellee.No. 3D06-2518

District Court of Appeal of Florida, Third District.

Opinion filed October 22, 2008.

An Appeal from the Circuit Court for Miami-Dade County, David H. Young, Judge. Lower Tribunal No. 02-12192.

Naphtali H. Wacks, for appellant.

Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Before RAMIREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

Avery Souffrant appeals the trial court’s order denying his Florida Rule of Criminal Procedure 3.850 motion, following two evidentiary hearings. We affirm the order denying Souffrant’s motion, finding that counsel’s strategic decision not to cross-examine a witness regarding Souffrant’s tattoo did not constitute ineffective assistance of trial counsel.

Souffrant was charged by information with armed robbery with a firearm or deadly weapon. According to the testimony of the victim, he and his friend were walking home from school on April 17, 2002, when the victim noticed two men approaching: one was Souffrant and the other was Souffrant’s friend. The victim testified that Souffrant approached him and pulled out a gun and put it on the side of the victim’s stomach. The victim testified that Souffrant had the gun in his left hand and “put the gun in my right side.” Souffrant had a gun but his friend did not. After Souffrant held the gun to the victim, Souffrant’s friend demanded that the victim give him his chain. The victim gave him the chain, as well as one or two dollars cash. Souffrant and his friend then took off running.

The victim looked at Souffrant’s face and noticed his dress and “stocking cap.” The victim “got a good look” at Souffrant. There was nothing blocking the victim’s view of Souffrant’s face. The victim testified that Souffrant did not have any gold teeth and that he did not recall seeing body piercings, or tattoos, but that he had braids. He stated that Souffrant was wearing brown khaki pants and a black shirt and was “[m]aybe in his twenties.” After Souffrant and his friend ran away, the victim saw them running toward a gray Cutlass with black tinted windows. They jumped in and got away. The victim was unable to read the license plate number on the car. The police were called, and the victim gave a description of what he saw to the police.

Two or three days later, the victim, his father, and his brother were driving home when they saw the same gray Cutlass with black tinted windows in which Souffrant and his friend had escaped. The victim’s father turned the car around and drove past the gray Cutlass slowly. The victim again recognized Souffrant and his friend as the individuals who robbed him. After he returned home, the victim’s father called the detective and informed him that the victim saw Souffrant.

About one week later, the detective came over to the victim’s house to show him a photographic line-up. The detective presented the victim with a folder with different pages of photographs. There were six photographs on each page. The victim did not recognize anyone on the first page he viewed. On the second page of photographs the victim recognized Souffrant as the person who pulled the gun on him and robbed him.

At trial, Souffrant’s first witness was the victim’s friend. The victim’s friend could not describe the man with the gun except that he was black. Souffrant also called his mother to testify. Mrs. Souffrant stated that Souffrant has had a permanent gold tooth since he was fifteen or sixteen years old.

After closing arguments, the jury convicted Souffrant of armed robbery with a firearm. The court sentenced him to life imprisonment with a ten year minimum mandatory. Souffrant’s conviction and sentence were affirmed on direct appeal. Souffrant v. State, 896 So. 2d 766 (Fla. 3d DCA 2004).

Souffrant thereafter filed a pro se motion for post-conviction relief pursuant to Rule 3.850. Specifically, he argued that his counsel was ineffective because he failed to cross-examine the victim about the existence of Souffrant’s tattoo. Apparently, Souffrant had a tattoo on the inside of his left forearm, running from approximately an inch below the crook of his elbow down to about three or four inches above his wrist. The tattoo said “No understanding thugs” and pictured two theatrical masks, as well as the number four and the word “life” below the masks.

The court held two evidentiary hearings on Souffrant’s motion for post-conviction relief. At one of the hearings, the defense called Randy Petre, Souffrant’s trial attorney, to testify. Mr. Petre testified that he decided not to present the jury with any evidence of the tattoo because he thought that the jury might be offended by the content of the tattoo. He testified that he had discussed this matter with Souffrant. He further testified that both he and co-counsel thought it was a tough choice, “whether to put it on or not and we discussed it and came to the conclusion we thought it would be more prejudicial because of what it said than it would help him,”. He then testified:

No. The way the case went, we actually — I’m trying to — I think it was after the State’s case ended, we went into the jury room with my cocounsel [sic], Avery and I, and we discussed — I mean, it wasn’t like we missed it. I mean, we knew this was an issue and discussed whether we thought it was worth putting the tattoo on. We knew we had the gold teeth contradiction, and the question was do we put the tattoo on with obviously the jury seeing — could be easily depicted as a violent tattoo and that was a violent crime, so, yeah, we knew about it.

Mr. Petre testified that he did not present evidence of Souffrant’s tattoo to the jury because he felt that its prejudicial content outweighed the value of this evidence. He further testified that he and his co-counsel thought that if the jury saw the tattoo, they would think Souffrant was “living a gangster lifestyle which was consistent with what the allegations were.” Mr. Petre did testify, however, that he presented evidence to the jury that Souffrant had a gold tooth or gold teeth because the victim had testified that the person who robbed him did not have gold teeth.

After considering the additional arguments, testimony, reviewing the transcripts, and evidence, the court denied Souffrant’s motion for post-conviction relief. In denying the motion, the court found that all of the decisions at trial, including whether to present evidence of Souffrant’s tattoo, were tactical decisions made with Souffrant’s consultation. This appeal followed.

Souffrant now claims he received constitutionally ineffective assistance of trial counsel, due to various reasons, only one of which merits discussion.¹ Souffrant claims that his counsel should have cross-examined the victim with regard to his failure to describe the tattoo. We disagree. The trial court did not err in finding that counsel’s decision not to cross-examine the victim regarding Souffrant’s tattoo was a strategic decision that did not constitute ineffective assistance of trial counsel.

Under Strickland v. Washington, 466 U.S. 668, 687-94 (1984), a defendant seeking post-conviction relief based on ineffective assistance of trial counsel must show that (1) counsel’s specific acts or omissions were “so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment” and (2) prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See also Armstrong v. State, 862 So. 2d 705, 711 (Fla. 2003). Both performance and prejudice are mixed questions of law and fact. Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999). Accordingly, the standard of review of a trial court’s ruling on an ineffective assistance claim is two-pronged: “(1) appellate courts must defer to trial courts’ findings on factual issues but (2) must review de novo ultimate conclusions on the performance and prejudice prongs.” Armstrong, 862 So. 2d at 711.

A review of the record indicates that Souffrant has failed to meet the first prong outlined in Strickland. Regarding trial counsel’s performance, there is a strong presumption that trial counsel’s conduct “falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.’” Strickland, 466 U.S. at 689. Thus, counsel is not ineffective for strategic decisions that, in hindsight, did not work to the defendant’s advantage. Mansfield v. State, 911 So. 2d 1160, 1174 (Fla. 2005). Furthermore, “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). See also Brown v. State, 894 So. 2d 137, 147 (Fla. 2004); Howell v. State, 877 So. 2d 697, 703 (Fla. 2004). “[E]vidence that counsel’s conduct was part of a deliberate, tactical strategy that the defendant understood and approved almost always precludes the establishment of this prong.” Henry v. State, 948 So. 2d 609, 617 (Fla. 2006).²

Here, Mr. Petre testified at the evidentiary hearing that his analysis was that Souffrant’s tattoo would be viewed by the jury as having gang connotations, and he was concerned that the jury would hold the tattoo against Souffrant. After a discussion with his co-counsel, Mr. Petre and Souffrant decided that the prejudice of presenting the tattoo to the jury outweighed any benefits. The trial court found that this was a reasonable strategic decision, and we cannot find that this strategy fell below the “wide range of professionally competent assistance” when evaluated from trial counsel’s perspective at the time he suggested and Souffrant agreed to this strategy. Strickland, 466 U.S. at 690.

Thus, Souffrant failed to satisfy the deficiency prong of Strickland, and we need not reach the prejudice prong. Consequently, we conclude that the trial court did not err in denying his claim of ineffective assistance of counsel.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. With respect to Souffrant’s other contentions for ineffective assistance of trial counsel, we find them meritless.

2. Furthermore, a review of ineffective assistance of counsel claims must be made from the perspective of defense counsel, taking into account all circumstances of the case as they were known to counsel at the time of the representation. United States v. Teague, 953 F.2d 1525, 1535 (11th Cir. 1992). Where trial counsel’s strategy is concerned, “a high degree of deference to counsel’s decisions must be given.” Demurjian v. State, 727 So. 2d 324, 326 (Fla. 4th DCA 1999).

—————

Courtesy of David Edelstein

Leonardo Comesanas, Appellant,
v.
The State of Florida, Appellee.No. 3D06-2227

District Court of Appeal of Florida, Third District.

Opinion filed October 22, 2008.

An appeal conducted pursuant to Anders v. California, 386 U.S. 738 (1967), from the Circuit Court for Miami-Dade County, William Thomas, Judge, Lower Tribunal No. 03-18970.

Leonardo Comesanas, in proper person.

Bill McCollum, Attorney General, for appellee.

Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

The motion to withdraw as appellate counsel is granted and Manuel Alvarez, Assistant Public Defender, is withdrawn as counsel for appellant and relieved from any further responsibility in this cause. The defendant has failed to raise any meritorious points in his pro se brief and, accordingly, we affirm.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

JEFFREY KOSZEGI, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 2D08-489.

District Court of Appeal of Florida, Second District.

Opinion filed October 22, 2008.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County, R. Timothy Peters, Judge.

LaROSE, Judge.

Jeffrey Koszegi, pro se, appeals the postconviction court’s disposition of his rule 3.850 motion. See Fla. R. Crim. P. 3.850. He is serving a five-year prison sentence after pleading no contest to trafficking in illegal drugs and possession of cocaine. Mr. Koszegi did not file a direct appeal. We reverse.

The postconviction court denied ground three of the postconviction motion on its merits and dismissed grounds one, two, and four as facially insufficient. It did not specifically provide Mr. Koszegi with an opportunity to correct the deficiency. The postconviction court must give the defendant at least one opportunity to correct facially deficient postconviction claims. Spera v. State, 971 So. 2d 754, 761 (Fla. 2007). The purpose of this requirement is to limit postconviction claims to a single proceeding, resulting in a single final order disposing of all claims—those raised or that could have been raised—on their merits. Lawrence v. State, 987 So. 2d 157, 158-59 (Fla. 2d DCA 2008).

The postconviction court should have issued a nonfinal order striking grounds one, two, and four of the motion with leave to amend within a reasonable period. Accordingly, we reverse the order on appeal and remand for the entry of such an order. If Mr. Koszegi does not amend his motion, the court may enter a final order that is a disposition on the merits of all claims. If he files an amendment, the court should consider the amended claims and rule on them in the final order.

Reversed and remanded.

FULMER and WHATLEY, JJ., Concur.

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

Courtesy of David Edelstein

R.A.P., a Child, Petitioner,
v.
CHARLES PARKINS, Superintendent of the Alachua Regional Juvenile Detention Center and THE STATE OF FLORIDA, Respondents.Case No. 1D08-4513.

District Court of Appeal of Florida, First District.

Opinion filed October 22, 2008.

Petition for Writ of Habeas Corpus — Original Jurisdiction.

C. Richard Parker, Public Defender, and Susan Sheahan, Assistant Public Defender, Gainesville, for Petitioner.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondents.

PER CURIAM.

R.A.P., a juvenile who was charged with violating his probation without committing a new law offense, petitioned this court for a writ of habeas corpus, arguing that secure detention is not authorized in this circumstance. We agreed and ordered his release. We now publish this opinion to set forth our reasoning.

Petitioner was found to be delinquent and was committed to a term in a moderate risk program to be followed by probation. After the probation commenced, the Gainesville Police Department filed an affidavit which alleged that petitioner had violated a curfew provision in the probation order. He was placed in secure detention until a hearing could be held to determine whether probation had been violated. A risk assessment instrument (RAI) prepared at the time, when corrected, scored 9 points, 3 less than the 12 points required for secure detention. The circuit judge at first ordered secure detention as a punishment for violating probation and later aggravated the RAI an additional three points. He rejected the arguments of defense counsel that secure detention was not authorized.

Our starting point is the well-established principle that secure detention can only be ordered when authorized by statute. Z.B. v. Department of Juvenile Justice, 938 So. 2d 584 (Fla. 1st DCA 2006). Juvenile detention determinations involve a two-step process. If a juvenile qualifies for detention under the “admission criteria” of the RAI and subsections 985.255(1)(a) through (j), Florida Statutes, the inquiry proceeds to the tallying of points for various factors to yield a “risk assessment,” and the RAI score must establish a need for detention. Among the admission criteria set forth in subsections 985.255(1)(a) through (j), the only one applicable to petitioner is (h) which authorizes detention if a child is alleged to have violated the conditions of probation. However, that subsection limits the form of detention that may be imposed by providing that “a child detained under this paragraph may be held only in a consequence unit,” and “if a consequence unit is not available, the child shall be placed on home detention with electronic monitoring.” While petitioner qualified for detention to the extent it is alleged he violated the conditions of his probation, the most restrictive forms of detention which could lawfully be imposed under the circumstances were placement in a consequence unit or home detention with electronic monitoring. Although section 985.255(3)(b) allows a placement more restrictive than that indicated by the RAI if supported by a written statement of clear and convincing reasons, this does not authorize the court to impose a form of detention more restrictive than the “statutory maximum” in this situation. Thus, secure detention was not authorized under these facts.

It must be noted that our holding is limited to situations where the alleged violation of probation does not constitute a new law offense. When there is a new crime alleged as the violation of probation, proceedings are governed by section 985.245(4), Florida Statutes. We also do not restrict the court’s contempt power set forth in section 985.037, Florida Statutes.

Finally, we address the problem arising in this case where neither a consequence unit nor electronic monitoring for home detention, the two forms of detention prescribed by section 985.255(1)(h), Florida Statutes, is available within the court’s geographic jurisdiction. In that circumstance only a less restrictive form of detention, such as home detention, is permissible.

PETITION GRANTED.

BARFIELD, ALLEN, and THOMAS, JJ., CONCUR.

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

Courtesy of David Edelstein

CHRIS HARVEY Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 2D08-4399.

District Court of Appeal of Florida, Second District.

Opinion filed October 22, 2008.

Appeal from the Circuit Court for Sarasota County, Robert B. Bennett, Jr., Judge.

Elliott C. Metcalfe, Jr., Public Defender, and Paul S. Cherry, Assistant Public Defender, Venice, for Appellant.

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

PER CURIAM.

Chris Harvey challenges his judgment and sentence for indirect criminal contempt. Because the trial court erred in compelling Harvey to testify against himself and because this error was not harmless, we reverse.

In response to a motion from Harvey’s former wife, Rachel Dailey, the trial court issued an order to show cause why Harvey should not be held in criminal contempt for failure to make court-ordered child support payments. The motion and the order alleged, inter alia, that Harvey was voluntarily unemployed to avoid implementation of an income deduction order, that he refused to pay child support, and that he was therefore in “willful contempt of the Court, for his violation of the Final Judgment of Dissolution of Marriage.”

A contempt hearing was held on August 28, 2008.¹ The court received in evidence a certified copy of Harvey’s child support payment record showing an arrearage of $8700. Then, arguing that a criminal contempt proceeding does not involve a criminal prosecution such that the constitutional rights enjoyed by a criminal defendant are not implicated, Dailey’s counsel called Harvey as a witness. Harvey objected on the ground that the hearing was a criminal proceeding in which he enjoyed the right not to be compelled to testify against himself. The court overruled the objection, and Harvey took the stand.

Harvey acknowledged that he was ordered to pay child support pursuant to a November 2007 dissolution order, that he had been employed at a car dealership from October to December 2007 but was then fired, and that he had not paid child support. He testified that he had been out of work due to the state of the economy, that he was nevertheless actively looking for a job, and that he was living with his mother. He stated that he had earlier paid a purge of $2000 thanks to the sale of his vehicle and insisted that he would pay child support if he could. Harvey’s former wife, Ms. Dailey, testified that she and Harvey had two children together, that she was supporting them with help from her family, and that Harvey was not providing financial support.

After hearing argument from counsel, the court ruled as follows:

Okay, the Court at this time finds [Harvey's counsel's] comments persuasive, and in addition to those of [Dailey's counsel], supports that the Court at this time finds beyond a reasonable doubt that this Court previously ordered Mr. Harvey to pay, that he has failed to pay, that his failure to pay is willful. He was employed in October, November and December, did not pay. I don’t know why the Court should believe him now he testifies that he has made consistent efforts without—without success to become employed for the past eight months.

The Court finds him guilty of indirect criminal contempt. The [C]ourt will sentence him to ninety days County Jail.

The court issued a written order reflecting this conclusion and sentence.

The resolution of the primary issue before us is straightforward:

Because criminal contempt is a crime in the ordinary sense, imposition of criminal contempt sanctions requires that a contemnor be afforded the same constitutional due process protections afforded to criminal defendants. These rights include the right of criminal defendants to be represented by counsel, the right to have the State prove the offense beyond a reasonable doubt, and the right not to incriminate oneself.

Parisi v. Broward County, 769 So. 2d 359, 364 (Fla. 2000) (citations and internal quotation marks omitted; emphasis added); see also Gidden v. State, 613 So. 2d 457, 460 (Fla. 1993). As such, the trial court erred in the indirect criminal contempt proceeding below when it allowed itself to be persuaded by the argument of the former wife’s attorney that the right not to be compelled to incriminate oneself did not apply in such a proceeding.²

The only remaining question is whether the error was harmless. See The Florida Bar v. Welch, 309 So. 2d 537, 538 (Fla. 1975) (finding harmless the fact that the respondent was compelled to testify against himself when the count in question was ultimately dismissed); see also Arizona v. Fulminante, 499 U.S. 279, 310-11 (1991) (holding that harmless error analysis is appropriate relative to admission of an involuntary confession); Williams v. Stewart, 441 F.3d 1030, 1051 (9th Cir. 2006). When Harvey’s testimony is removed from consideration, the remaining evidence is “insufficient to prove beyond a reasonable doubt that he willfully violated a prior court order.” See Hagerman v. Hagerman, 751 So. 2d 152, 153 (Fla. 2d DCA 2000) (emphasis added). Essentially, the only competent evidence before the court was Harvey’s child support payment record and Dailey’s testimony. From the payment record the court could conclude that Harvey was in arrears in his child support payments. From Dailey’s testimony the court could conclude that Harvey was not assisting her financially. From neither piece of evidence can it be inferred that Harvey was, as alleged, voluntarily unemployed such that he was in willful noncompliance with an income deduction order or that he was otherwise willfully noncompliant with the original dissolution order. We therefore must conclude that the error in admitting the evidence was not harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

Accordingly, we reverse the court’s order and remand for a new hearing. See Pacheco v. State, 698 So. 2d 593, 596 (Fla. 2d DCA 1997) (citing Lockhart v. Nelson, 488 U.S. 33, 40 (1988)). The trial court is directed to enter an order releasing the petitioner to the bail status to which he was admitted as of the show-cause hearing or, if he was not admitted to bail, an order releasing him from confinement.

Reversed and remanded with instructions.

NORTHCUTT, C.J., and CASANUEVA and SILBERMAN, JJ., Concur.

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

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Notes:

1. At the hearing, counsel for Dailey prosecuted the case against Harvey, who was represented by an assistant public defender. On review in this court, the same assistant public defender represents Harvey, and the Attorney General has appeared on behalf of the State, see § 16.01(4), Fla. Stat. (2008).

2. In support of his argument, the wife’s attorney recited to the trial court the third paragraph of the subsection headed “(4) Arraignment; Hearing” of the 1968 Committee Notes to Florida Rule of Criminal Procedure 3.840, which sets forth the procedures to be followed in proceedings on indirect criminal contempt. The paragraph includes this statement:

There is no reason to believe that the statute [section 38.22, Florida Statutes, as amended in 1945] is unconstitutional as being in violation of section 11 of the Declaration of Rights of the Florida Constitution, which provides, in part, that the accused in all criminal prosecutions shall have a right to public trial by an impartial jury. Criminal contempt is not a crime; consequently, no criminal prosecution is involved.

Counsel also read the three case citations there. It may be noted, however, that the first paragraph of the same subsection of the Committee Notes contains the following statement: “The defendant cannot be compelled to testify against himself. Demetree v. State ex rel. Marsh, 89 So. 2d 498 (Fla. 1956).”

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Courtesy of David Edelstein