Florida Criminal Law Opinions

Appeal of order denying rule 3.800 motion from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County, Lawrence M. Mirman, Judge, L.T. Case No. 2004-CF-618.

Robert Gorham, Lake City, pro se.

No appearance required for appellee.

PER CURIAM.

Robert Gorham appeals the dismissal of his Florida Rule Criminal Procedure 3.800(a) motion. At issue is Gorham’s sentence for burglary of a conveyance with an assault or battery under section 810.02(2)(a), Florida Statutes. Gorham argues that his sentence for the enhanced first-degree felony form of burglary is illegal because the jury’s verdict did not specify what crime Gorham committed during the course of the burglary, an assault or a battery. Gorham contends that a possibility exists that the jury’s verdict was not unanimous as to whether he committed an assault or battery specifically. The trial court dismissed this motion without prejudice for Gorham to file a legally sufficient rule 3.850 motion because Gorham’s claim was attacking the validity of his conviction, not the legality of his sentence.

Gorham has raised a challenge under Apprendi v. New Jersey, 530 U.S. 466 (2000), i.e., that the jury’s verdict does not reflect the findings necessary to support a sentence in excess of the statutory maximum for a simple burglary. See Gonzalez v. State, 876 So. 2d 658, 661 (Fla. 3d DCA 2004) (finding that whether an assault or battery occurred during the course of a burglary is a fact that increases the penalty for a crime beyond the statutory maximum for Apprendi purposes).

Rule 3.800(a) is a proper vehicle to raise certain Apprendi challenges that can be determined from the face of the record. Hughes v. State, 826 So. 2d 1070, 1072 (Fla. 1st DCA 2002). We agree that the question of whether Gorham is attacking his conviction or his sentence in this motion is not entirely clear. Because we conclude that Gorham’s claims lack merit, any error in the dismissal of Gorham’s motion is harmless, and for the reasons that follow, we affirm.

Under section 810.02(2)(a), a defendant commits a first-degree felony punishable by life if, during the course of committing a burglary, he or she “[M]akes an assault or battery upon any person.” The jury in this case found that Gorham made “an assault or battery” during the course of the burglary. A more specific finding as to which was committed, i.e., an assault or a battery, was not required to support the first-degree felony form of burglary. The jury’s finding that Gorham committed one or the other was sufficient to support the enhanced penalty.

Gorham’s argument that the jury’s verdict may not have been unanimous is without merit. Even if some jurors believed Gorham committed a battery, while others found he committed merely an assault, during the burglary, both of these findings support the enhanced penalty, and the verdict was unanimous as to the facts needed to support the first-degree felony form of burglary. The State did not have to prove beyond a reasonable doubt which particular one was committed during the burglary. § 810.02(2)(a), Fla. Stat.

Further, the evidence at trial was that Gorham repeatedly punched the owner of the vehicle in the face and tried to choke her. Gorham also repeatedly punched his wife in the face and threatened to kill both occupants of the vehicle during the incident. After the owner of the vehicle managed to escape, Gorham tried to run her down with her own vehicle while continuing to struggle with his wife who remained in the vehicle.¹ Both victims had bleeding facial wounds immediately after the incident.

The evidence supports the conclusion that Gorham committed multiple assaults and batteries during the offense, and a jury finding that a single assault or battery was committed during the offense suffices. Any error in the jury failing to enter a “more specific” verdict, as to whether Gorham committed an assault or battery, or both (as the evidence overwhelmingly supported), would be harmless beyond a reasonable doubt. See Galindez v. State, 955 So. 2d 517 (Fla. 2007).

Gorham’s motion also argued that the jury failed to find that the conveyance was occupied. Occupancy was not a fact used to enhance the penalty in this case. This allegation is irrelevant, and the claim of an illegal sentence on this basis is without merit. Further, the jury’s verdict inherently determined that the vehicle was occupied.

Because we find that Gorham’s claims lack merit as a matter of law, we affirm with prejudice.

Affirmed.

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

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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Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Pedro E. Dijols, Judge, L.T. Case No. 91-17742 CF10A.

Irving Palmer, Indiantown, pro se.

No appearance required for appellee.

PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to correct an illegal sentence. Appellant claims that his sentence, imposed after he violated probation, is illegal because the court failed to impose general conditions of probation when the court sentenced him for the underlying crimes in 1992. To the contrary, the written order of probation provides that the appellant must not violate the law, the general condition of probation which appellant violated. Defendants are constructively on notice of statutorily imposed general conditions of probation and those listed in the standard probation form within the Florida Rules of Criminal Procedure. Maddox v. State, 760 So. 2d 89, 105 (Fla. 2000). A general condition of probation does not have to be orally imposed at sentencing, and due process is satisfied if it is contained in the written sentencing order. Id. Appellant’s claim that he did not receive a copy of the written sentencing order is not a claim cognizable under rule 3.800(a) which requires the claim of illegality to appear on the face of the record.

Affirmed.

SHAHOOD, C.J., WARNER and GROSS, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Ana I. Gardiner, Judge, L.T. Case No. 00-21914 CF10A.

Scott Mulvaney, Defuniak Springs, pro se.

No appearance required for appellee.

PER CURIAM.

Affirmed. As found by the trial court, the postconviction motion is successive and untimely. Even if it were not, it fails to show Strickland¹ prejudice as a matter of law. See Sanders v. State, 946 So. 2d 953, 960 (Fla. 2006) (“[A]s a matter of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland.’”).

WARNER, FARMER and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Appeal of order denying rule 3.800 motion to the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Cynthia L. Cox, Judge, L.T. Case No. 562003CF1504A.

David W. Cooper, Lakeland, pro se.

No appearance required for appellee.

PER CURIAM.

Affirmed, without prejudice to appellant’s right to exhaust all administrative remedies with the Department of Corrections as to its record on his addiction recovery supervision, and if appropriate, to seek mandamus relief. Faxas v. State, 975 So. 2d 1269 (Fla. 4th DCA 2008).

STONE, KLEIN and GROSS, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Appeal of order denying rule 3.800 motion to the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Marc H. Gold, Judge, L.T. Case No. 98-23582 CF10A.

Mark Harris, South Bay, pro se.

No appearance required for appellee.

PER CURIAM.

Affirmed. Trapp v. State, 760 So. 2d 924 (Fla. 2000) (holding that those persons with standing to challenge their sentences under Heggs were those whose offenses were committed on or after October 1, 1995, and before May 24, 1997).

WARNER, KLEIN and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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

WHATLEY, Judge.

Michael Franke appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse in part and affirm in part.

Franke was charged with four offenses alleged to have been committed on February 13, 1993. Only three of the offenses are at issue in the present appeal: attempted first-degree murder with a firearm, armed robbery, and armed burglary. After entering a negotiated plea, Franke was sentenced to fifty years’ imprisonment on each of the three charges, with a three-year mandatory minimum on each charge for use of a firearm. See § 775.087(2), Fla. Stat. (1991). The sentences were imposed to run concurrently. Additionally, he was designated a habitual violent felony offender (HVFO) as to the armed robbery and armed burglary, and a fifteen-year mandatory minimum sentence was imposed for each charge. Franke did not file a direct appeal of his judgment and sentence. In the present case he filed a rule 3.800(a) motion raising several claims, all of which the postconviction court denied.

Franke first alleged that the sentence for the attempted first-degree murder with a firearm is illegal because the sentencing options for a life felony¹ at the time of his offense were either life imprisonment or a maximum term of forty years. Franke is correct. See § 775.082(3)(a), Fla. Stat. (1991) (listing these options); see also Stephens v. State, 627 So. 2d 543, 544 (Fla. 2d DCA 1993) (“When the trial court opts for a term of years instead of a life sentence [for a life felony], it may not impose a sentence longer than forty years.”). Moreover, not even a plea agreement can support an illegal sentence. McDuffie v. State, 946 So. 2d 99, 100 (Fla. 2d DCA 2006). Because the postconviction court erred in denying this claim, we reverse for the court to resentence Franke for the count of attempted first-degree murder with a firearm; the sentence may not exceed forty years.

Franke alleged the same claim with respect to his sentences for armed robbery and armed burglary; that is, he argued that the fifty-year sentences are illegal because they were reclassified to life felonies due to the use of a firearm, § 775.087(1)(a), and thus subject to either life imprisonment or a forty-year maximum sentence. In fact, however, the sentencing documents reflect no reclassification. Indeed, the trial court could not have reclassified the offenses because the use of a firearm is an essential element of each of them. See § 775.087(1); State v. Tripp, 642 So. 2d 728, 730 n.2 (Fla. 1994) (attempted armed robbery); Harris v. State, 766 So.2d 403, 404 (Fla. 2d DCA 2000) (armed burglary). Rather, the sentences were imposed based on the statutory definitions of each offense as a first-degree felony punishable by life, §§ 812.13(2)(a), § 810.02(b), which is distinct from a life felony, James v. State, 775 So. 2d 347, 348 (Fla. 1st DCA 2000) (citing Burdick v. State, 594 So. 2d 267, 2686-9 (Fla. 1992)). We therefore affirm the postconviction court’s denial of this claim.

Franke raised an additional claim with respect to the armed robbery and armed burglary charges: that because in his view they are life felonies, they were not subject to habitualization. As just noted, the two offenses are first-degree felonies punishable by life. A first-degree felony is subject to habitualization. § 775.084(4)(a)(1); see also Harris v. State, 593 So. 2d 301, 301 (Fla. 2d DCA 1992) (noting that a “first degree felony, no matter what the punishment imposed by the substantive law that condemns the particular criminal conduct involved, is still a first degree felony and subject to enhancement by Section 775.084(4)(a)(1), Florida Statutes” (citation and internal quotation marks omitted)). Therefore, there was no error as to habitualization. We affirm the postconviction court’s denial of this claim.

Finally, Franke claims that the “general notice of intent” of habitualization served on him was constitutionally infirm because it did not specify which category of abitualization the State would be seeking. The postconviction court properly denied this claim, and we affirm. See Judge v. State, 596 So. 2d 73, 77-78 (Fla. 2d DCA 1991) (concluding that the issue of whether there was a failure to give notice of intent to seek a habitual offender sanction is not properly raised in a rule 3.800(a) motion).

In sum, we reverse only as to the sentence imposed on the count of attempted first-degree murder with a firearm.

Reversed in part and remanded with instructions; affirmed in part.

FULMER and LaROSE, JJ., Concur.

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

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Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Ana Gardiner, Judge, L.T. Case No. 05-15839 CF10A.

Frederick Ives, Florida City, pro se.

No appearance required for appellee.

Per Curiam.

Frederick Ives appeals the circuit court’s denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. Because the motion fails to establish a valid basis for postconviction relief under any standard, we affirm.

Ives claims that his mandatory minimum sentence as a prison releasee reoffender (PRR) was illegal because the state produced only hearsay evidence to prove the date he was released from prison. See § 775.082(9)(a)1, Fla. Stat. (2005). The motion alleges that at sentencing the state introduced a letter from a Department of Corrections (DOC) employee averring to the date Ives was released and that this was the only evidence introduced to establish his release date.

The Florida Supreme Court has determined that a DOC release-date letter, standing alone, constitutes hearsay that does not fall within the business or public records exception to the hearsay rule. See Yisrael v. State, 986 So. 2d 491 (Fla. 2008). A DOC release-date letter alone would be inadmissible at sentencing to establish a defendant’s release date for purposes of enhanced sentencing. Id. If a certified “Crime and Time” report is attached to the letter, as was the case in Yisrael, then the DOC letter is a proper means of authenticating the report, and together these documents are admissible to establish the release date.

Ives explains that his attorney objected at his sentencing to the use of the DOC letter on hearsay grounds but does not clearly explain whether a “Crime and Time Report” was attached. Although the hearsay objection to the DOC letter preserved the issue, it was not raised on direct appeal.

In this rule 3.800(a) motion, Ives does not contend that the release-date letter misstates the date of his release and that his actual date of release makes him ineligible for PRR sanctions. Ives, therefore, does not establish that his sentence is illegal. See Bover v. State, 797 So. 2d 1246, 1251 (Fla. 2001) (holding that a challenge to recidivist sentencing may be raised in a rule 3.800(a) motion where the requisite predicate convictions do not exist as a matter of law and the error is apparent from the face of the record).

In Bover, the Florida Supreme Court approved the Second District’s reasoning that rule 3.800(a) “is not a vehicle designed to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process.” Id. at 1149 (citing Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1992)). Ives’ challenge to the procedure used in qualifying him for PRR sentencing is not cognizable in a rule 3.800(a) motion. Rangel v. State, 937 So. 2d 1218 (Fla. 3d DCA 2006). A deficiency merely in the procedure employed, where the movant actually qualifies for an enhanced sentence, does not result in an illegal sentence.

Because the instant motion was filed within the time for seeking relief under rule 3.850, we have considered whether the deficiency alleged by Ives could be raised pursuant to that rule. Newkirk v. State, 947 So. 2d 548 (Fla. 4th DCA 2006) (finding that a rule 3.850 movant failed to show prejudice from trial counsel’s failure to object to evidence of prior convictions where the movant did not allege that the convictions used to enhance his sentence were not his or that he did not qualify for an enhanced sentence). See also Judge, 596 So. 2d at 78 (discussing how relief from a procedural error at sentencing might be available under rule 3.850 if the movant can show prejudice).

Several appellate decisions have suggested that errors in the procedures used to establish a defendant qualifies for enhanced sentencing, while not cognizable in a rule 3.800(a) motion, “must be” raised in a rule 3.850 motion. See Zafora v. State, 900 So. 2d 675 (Fla. 3d DCA 2005); Reese v. State, 899 So.2d 428, 429 (Fla. 3d DCA 2005); Cooper v. State, 817 So. 2d 934 (Fla. 3d DCA 2002) (pertaining to claims of improper notice for enhanced sentencing).

We agree that rule 3.850 may provide a remedy but only when the movant can show prejudice from the alleged procedural deficiency, such as an illegal sentence. A rule 3.850 motion would be the proper vehicle where an evidentiary hearing is necessary to determine the date of the movant’s release from prison or other disputed facts bearing on the defendant’s qualification for enhanced sentencing. Rule 3.800(a), on the other hand, may be used to correct an illegal sentence at any time but only where the movant’s lack of qualification for enhanced sentencing can be determined from the face of the record without the need for an evidentiary hearing.

According to the unsworn motion, the alleged deficiency was preserved for appeal in this case. Errors in the process used in determining a defendant qualifies for enhanced sentencing, such as the one at issue in this case, can constitute reversible error in a direct appeal. See, e.g., Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005); Glover v. State, 871 So. 2d 1025 (Fla. 1st DCA 2004).

On remand for resentencing, however, the state is permitted to produce further evidence to support the enhanced sentence. This second opportunity to properly qualify the defendant for enhanced sentencing does not violate the prohibition against double jeopardy. State v. Collins, 985 So.2d 985 (Fla. 2008). Thus, if preserved and argued on direct appeal, errors in the sentencing process can entitle a defendant to a new sentencing proceeding. The same relief is not available in a postconviction motion.

Errors that are reversible on direct appeal are not necessarily sufficient to warrant postconviction relief. Carratelli v. State, 961 So. 2d 312, 322 (Fla. 2007) (explaining that, for purposes of a rule 3.850 claim alleging ineffective assistance of counsel, the movant must show prejudice at trial, not merely that the error would be reversible on direct appeal). A rule 3.850 motion is not a second appeal, and to merit relief in a postconviction motion, a procedural error must be of greater magnitude.

We conclude that an error in the process employed by a trial court in qualifying a defendant for an enhanced sentence, where the sentence could be legally imposed, does not warrant postconviction relief without a showing of prejudice.¹

The rules permitting postconviction relief were intended to authorize relief for a very limited class of serious errors. As Judge Padovano has observed:

Despite its widespread use, rule 3.850 does not provide a mechanism for further review as a matter of course in every criminal case. To the contrary, the rule affords an extraordinary remedy for a limited class of errors that cannot be corrected on direct appeal.

Moore v. State, 768 So. 2d 1140, 1142 (Fla. 1st DCA 2000) (finding that defendant’s failure to raise on direct appeal a procedural error that occurs at sentencing constitutes a waiver and the “procedural default rule” bars consideration of the issue in a rule 3.850 motion). Rule 3.850(a)(1) might authorize relief for serious deprivations of procedural due process, but not where the issue could and should have been raised on direct appeal.

A mere procedural error like the one alleged by Ives, which could be corrected if the case were remanded on direct appeal, does not amount to an error serious enough to warrant postconviction relief. Generally, a procedural defect that arises at sentencing should be prejudicial to warrant disturbing the finality of the case and invoking postconviction remedies. Jackson v. State, 983 So. 2d 562, 572 (Fla. 2008) (discussing the definition of a “sentencing error” that can be raised under rule 3.800(b) and explaining that it includes “harmful” errors in orders entered as a result of the sentencing process, “not any error in the sentencing process”).

Rule 3.850 should not be used to raise procedural errors that are not shown to be harmful. In a direct appeal, the burden is on the state to show harmless error. Goodwin v. State, 751 So. 2d 537, 541 (Fla. 1999). In a postconviction motion, the burden almost invariably remains on the movant to show harmful error. The claim presented here should be no different.

To obtain relief for his claim in a postconviction motion under rule 3.800(a) or rule 3.850, Ives must show he is prejudiced because the PRR sentence in this case could not be imposed. A mere defect in the procedure employed at sentencing that does not prejudice a defendant does not warrant postconviction relief.

GROSS, TAYLOR and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Jeffrey R. Levenson, Judge, L.T. Case No. 02-4837 CF10A.

Anthony B. Britt of Britt, Ferguson, Hathaway, Holiday and Levy, PLC, Fort Lauderdale, for appellant.

No appearance required for appellee.

WARNER, J.

Appellant moved for postconviction relief from her conviction for firstdegree murder. The trial court summarily denied the claim. We affirm on all issues.

Most prominently, appellant claims that her counsel should have filed a motion for disqualification of the trial judge. In order to establish a claim of ineffectiveness for failure to file a motion for disqualification, a defendant must show that a facially sufficient claim of disqualification was present. See Thompson v. State, 33 Fla. L. Weekly S596 (Fla. Aug. 28, 2008). We conclude appellant’s claim is legally insufficient. Appellant attaches an unfiled motion for disqualification, drafted after her conviction but before her direct appeal, reciting specific acts of conduct by the judge, as well as information from other court personnel, regarding the personal life of the judge, which information was learned during the trial. This motion was not signed by anyone, and more importantly, there is no affidavit or certificate from either trial counsel or anyone else asserting that the motion was made in good faith. See Fla. R. Jud. Admin. 2.330(c). Although affidavits are attached to the motion for postconviction relief to support the grounds for disqualification, none of them confirm the acts of personal conduct alleged in the motion. Both the motion and the supporting affidavits rely on information about the trial judge from unnamed court personnel passed to the persons signing the affidavit.¹

“A legally sufficient motion for disqualification cannot be based upon rumors or gossip . . . .” Barwick v. State, 660 So. 2d 685, 693 (Fla. 1995); Dura-Stress, Inc. v. Law, 634 So. 2d 769, 770 (Fla. 5th DCA 1994) (Sharp, J., concurring) (pointing out that no Florida case has allowed disqualification based solely on hearsay. “Although the party moving for disqualification of a judge need not have personal knowledge of the facts asserted in an affidavit filed to establish a basis to disqualify a judge, the affiant clearly must have some first-hand knowledge upon which to swear to the truth of the facts alleged. Otherwise, the affidavit is not truly an affidavit.”) (footnote omitted); Hayslip v. Douglas, 400 So. 2d 553, 556 (Fla. 4th DCA 1981) (although the party’s personal knowledge of the facts set forth in the motion may not be necessary, all requirements of the rule for disqualification must be met, and the supporting affidavits must be “fully credible”). Finally, the objective information contained in the motion (but not in the affidavits), as opposed to the rumor and courthouse gossip, is legally insufficient to support the standard for disqualification, i.e., that a reasonably prudent person would fear that he or she could not get a fair trial. Id.

We also affirm as to the remaining issues raised. All are either legally insufficient, conclusively refuted by the record, or fail because appellant cannot show the necessary prejudice required by Strickland v. Washington, 466 U.S. 668 (1984).

POLEN and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Appeal of order denying rule 3.800(c) motion from the Circuit Court for the Nineteenth Judicial Circuit, Martin County, Sherwood Bauer, Jr., Judge, L.T. Case No. 97-323CFMA & 97-1115CFMA.

William Borden, Polk City, pro se.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

KLEIN, J.

William Borden appeals a trial court order which purported to strike his three motions to waive findings and costs imposed in his two 1997 felony prosecutions in Martin County Circuit Court. The trial court construed his motions as intended to be filed under Florida Rule of Criminal Procedure 3.800(c), and then struck them because more than sixty days had elapsed from sentencing.

While we do not agree that the motions were intended under that rule, we nonetheless affirm the trial court’s order denying relief because the motions were without basis in the law. The trial court was right, but for the wrong reasons. See Stav v. State, 860 So. 2d 478 (Fla. 4th DCA 2003).

Appellant’s challenge in his three motions was to the potential suspension of his driver’s license due to costs and fees imposed in his two felony cases, which have not been paid by him. Section 322.245(5)(a), Florida Statutes (2004) authorized this suspension for failure to pay any obligations in criminal cases. His challenges to the costs and fees relate to his indigent status now and not at the time they were imposed. Further, his challenge to the retroactive application of section 322.245(5)(a), Florida Statutes (2004) to his cases must fail in light of the authorities recognizing that driving is a privilege and not a right, which can be “taken away or encumbered as a means of meeting a legitimate legislative goal.” See Lite v. State, 617 So. 2d 1058, 1060 (Fla. 1993). Moreover, there is no ex post facto violation by application of the statute to his cases. See Lescher v. Florida Dep’t of Highway Safety & Motor Vehicles, 985 So. 2d 1078 (Fla. 2008).

Therefore, even if appellant’s motions were treated by the trial court as having been filed under Florida Rule of Criminal Procedure 3.800(a) or 3.850, (if he could have overcome the limitations period of rule 3.850), their denial was correct under this authority. Affirmed.

SHAHOOD, C.J and GROSS, J., concur.

Not final until disposition of timely filed motion for rehearing.

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