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Foreman v. State

Wednesday, November 26th, 2008
District Court of Appeal of Florida, Fourth District.
Crystal FOREMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-3484.
Nov. 26, 2008.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case No. 07-11400 CF10A.
Carey Haughwout, Public Defender, and James W. McIntire, 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.
PER CURIAM.
*1 Crystal Foreman was tried by jury and convicted of aggravated battery. In this appeal, Foreman argues her trial counsel provided ineffective assistance in failing to request that the jury be instructed on the justifiable use of non-deadly force. We affirm the conviction without prejudice to Foreman’s right to file a motion for postconviction relief, raising such claim. See Kidd v. State, 978 So.2d 868, 868 (Fla. 4th DCA 2008) (recognizing that adequacy of lawyer’s representation may not generally be raised on direct appeal and that such claims are properly raised in a motion for postconviction relief).
Affirmed.

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Brown v. State

Wednesday, November 26th, 2008
District Court of Appeal of Florida, Third District.
Willie BROWN, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D07-2534.
Nov. 26, 2008.
An Appeal from the Circuit Court for Miami-DadeCounty, Dennis J. Murphy, Judge.
Bennett H. Brummer, Public Defender, and Colleen Brady Ward and Andrew Stanton, Assistant Public Defenders, for appellant.
Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.
Before COPE and RAMIREZ, JJ., and SCHWARTZ, Senior Judge.
COPE, J.
*1 The question in this criminal appeal is whether there was an error in jury selection. We conclude that the answer is “yes”, and remand for a new trial.
Defendant-appellant Willie Brown was charged with armed robbery and armed carjacking. During jury selection, the State sought to exercise a challenge for cause against Juror Number Eight, an African-American woman. The prosecutor argued that Juror Number Eight had indicated agreement when another juror said that he needed physical evidence in order to convict. The judge and defense counsel both said that they did not see that, meaning that they had not seen any nonverbal communication by Juror Number Eight which indicated agreement with the other juror. There are no statements in the transcript in which Juror Number Eight expressed agreement with the other juror, and no statements indicating that Juror Number Eight would require physical evidence in order to convict. The trial court denied the challenge for cause.
Soon thereafter the State sought to exercise a peremptory challenge against Juror Number Eight, explaining that it relied on the same reason previously given. The defense reiterated its position. The court allowed the peremptory challenge. Juror Number Eight was stricken. From his conviction, the defendant appeals.
We reverse on authority of Dorsey v. State, 868 So.2d 1192 (Fla.2003). In Dorsey the Florida Supreme Court held that “a potential juror’s nonverbal behavior, the existence of which is disputed by opposing counsel and neither observed by the trial court nor otherwise supported by the record, is not a proper basis to sustain a peremptory challenge as genuinely race-neutral.”Id. at 1202.Here, as in Dorsey, the State relied on nonverbal conduct which the judge and defense counsel both said they did not observe. We must therefore order a new trial.
The State argues that the defense objection is not properly preserved for appellate review because at the conclusion of jury selection, the defense did not state that it was renewing its objection to the State’s strike of Juror Number Eight. However, we conclude that there was sufficient preservation in this case because, as soon as the jury was chosen, the trial court asked the defendant, “After having sat through the questioning of the panel, meeting with your attorney and going over the selection process, subject to any objections she’s raised, are you satisfied with the jury we’ve selected?”(Emphasis added). The defendant responded, “Yes, sir.” The trial court’s “subject to any objections” statement is sufficient to indicate the trial court’s awareness that the jury was being seated over defense objection and that the defense had not waived the objection. See Scott v. State, 920 So.2d 698, 699 (Fla. 3d DCA 2006).
For the stated reasons, we reverse the convictions and remand the case for a new trial.
Reversed and remanded for further proceedings consistent herewith.

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Estrich v. State

Wednesday, November 26th, 2008
District Court of Appeal of Florida, Fourth District.
Justin ESTRICH, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-3899.
Nov. 26, 2008.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T. Case No. 06-4297CFAMB.
Carlos A. Canet of Law Office of Carlos A. Canet, Fort Lauderdale, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
*1 In this case, the trial court allowed the state to present evidence of the defendant’s marijuana use in a prosecution for DUI manslaughter based entirely on the defendant’s ingestion of Xanax. We hold that the trial court abused its discretion in admitting the marijuana evidence and in failing to sever a misdemeanor marijuana possession charge from the manslaughter charge.
On December 5, 2005, Justin Estrich was involved in a serious, two car crash at the intersection of Jog Road and Brentwood Boulevard in Palm Beach County. The driver of the other vehicle, America Babilonia, died at the scene. Estrich had been travelling north on Jog Road; the other driver was heading west on Brentwood Boulevard and was in the process of making a left turn to go south on Jog Road. After the impact, Estrich’s vehicle travelled about 210 feet north of the intersection and pulled over into a left hand turn lane.
No one witnessed the collision. Christopher Cannan, a bystander, went to Estrich’s car after it came to a stop. Cannan asked Estrich to shut off the car and observed him “fiddling with stuff on the dashboard.”Cannan testified that Estrich was emotional, did not respond to his questions, and made random statements, but could not recall whether his speech was slurred. Having an EMT certification, Cannan opined that Estrich’s behavior was more consistent with a person under the influence rather than someone in shock. However, Cannan conceded that it was possible that the observed behavior, including Estrich’s puffy eyes and confusion, could be manifestations of closed head trauma.
Sergeant William Bruffey, an off-duty police officer, arrived at the scene and approached the vehicle. Sergeant Bruffey thought that Estrich was disoriented; as Estrich fumbled with the dashboard and steering wheel, and did not appear to understand what the officer was saying. The sergeant thought that Estrich was under the influence, but also considered that he may have been in shock or suffering from other medical problems. Sergeant Bruffey found two prescription bottles labeled with Estrich’s name in the front area of the car. One of the paramedics handed him a third bottle containing marijuana that had been found in Estrich’s pocket. Sergeant Bruffey testified that he could not determine whether appellant’s conduct was attibutable to closed head trauma or whether it was consistent with someone who was high on drugs.
Paramedic Jean-Antoine Pierre treated Estrich at the scene of the accident and transported him to JFK Hospital. Pierre conducted a head-to-toe assessment, and determined that although Estrich did not seem to be injured, in light of the seriousness of the car accident, and the death of the other driver, he should be taken to the hospital. Pierre applied the criteria set forth by the Glasgow Coma Scale and noted that Estrich appeared to be disoriented. As part of a protocol, Pierre administered the drug Narcan which treats potential opiate or narcotic use. Estrich told Pierre that he had ADHD and heart palpitations and was taking Xanax for anxiety. After the paramedics found the bottle of marijuana, Pierre asked Estrich whether he had taken it, to which appellant replied “No.”
*2 After speaking with Sergeant Bruffey and witness Cannan at the accident scene, Investigator Troy Snelgrove went to the hospital to question Estrich. At trial, Snelgrove described his observations when he met Estrich: “At first I noticed that he wasn’t severely injured. I mean he had some cuts and abrasions on him. I also noticed that his eyes were glassy. When he spoke his speech was slurred and mumbled. He looked extremely impaired. Based on my training and experience he probably looked more impaired than anybody I’ve ever seen before.”Further, Snelgrove thought appellant’s movements were slow, that he did not appear confused, and that he exhibited mood swings. Regarding the mood swings, Snelgrove stated: “He would cry and then he would stop crying and he just seemed to get upset and then he would be fine.”These observations led Snelgrove to believe that Estrich was impaired by something.
After reading him his Miranda warnings, the police obtained a taped statement from Estrich. He stated that he was color blind, but was able to see the lights, and that the light in question was yellow. He was not familiar with the area. He explained that he drove away from the crash site because he was trying to pull over as far as he could. Estrich said that he did not drink alcohol and that his girlfriend had broken up with him. He stated that earlier that day he had taken Adderall to study, but denied taking any kind of narcotics or drugs. When asked about the Xanax pills found in his car, Estrich said that he took 25 milligrams of Xanax at night before going to sleep. He also acknowledged the marijuana in his car and indicated that he had smoked a bowl the night before.
Chemical analysis of Estrich’s blood showed the presence of 39 nanograms of marijuana metabolite Delta 9 Carboxy THC and 139 nanograms of Alprazolam, the generic form of Xanax.
The state charged Estrich with DUI manslaughter, leaving the scene of a crash involving a death,FN1 and possession of less than 20 grams of marijuana. Under section 316.193(3), Florida Statutes (2007), the gist of the DUI manslaughter charge, as it applied in this case, is that the defendant operated a vehicle while under the influence of a controlled substance to the extent that his normal faculties were impaired, and that as a result of such operation, caused or contributed to causing the death of a human being.
FN1.Section 316.027, Florida Statutes (2007) provides in pertinent part:
The driver of any vehicle involved in a crash occurring on public or private property that results in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has filled the requirements of section 316.062. Any person who willfully violates this paragraph commits a felony of the third degree.
Before trial, the defendant moved to sever the marijuana charges from the driving offenses. He also argued for the exclusion of testimony about the marijuana metabolite in his blood, contending that such evidence was unfairly prejudicial. The circuit court denied both motions.
At trial, the defendant vigorously contested that he was impaired by Xanax at the time of the crash. He contended that a closed head trauma explained the indications of impairment observed by the state witnesses. There was testimony that Xanax is a prescribed medication designed to alleviate anxiety disorder and panic attacks. The defendant pointed to testimony that, over time, patients develop a tolerance to the adverse side-effects of the medication. Experts testified that therapeutic levels of Xanax have been reported as high as 272 nanograms; a therapeutic level was defined as a concentration at which a medication would have its peak beneficial effect without the manifestation of adverse side-effects. The defendant argued that he had developed a tolerance to Xanax as a result of his use of the prescribed medication over time.
*3 The jury found Estrich guilty of the lesser included offense of misdemeanor driving under the influence, not guilty of leaving the scene of a crash involving death, and guilty of possession of less than 20 grams of cannabis.
We first address the circuit court’s denial of the defendant’s motion in limine, which sought to exclude any reference to the presence of the marijuana metabolite Delta 9 Carboxy THC in his blood sample. Every expert witness at the trial and at the hearing on the motion in limine stated that the presence of the marijuana metabolite in the defendant’s blood sample likely would not have affected him at the time of the accident. For example, Dr. Jesse Bidanset, the state’s board certified forensic toxicologist, testified on direct examination that the presence of the marijuana metabolite in the defendant’s blood would “probably not” have affected the defendant at the time of the crash, explaining that “[t]he metabolite can circulate for literally days after using marijuana. And so the fact that it is the metabolite and not the parent drug would lead me to conclude that there [would] be relatively little impact of that as opposed to what I consider to be a significant impact of [Xanax].”FN2 Focusing on Xanax as the cause of the defendant’s impairment, the state conceded in closing argument that the marijuana metabolite in the defendant’s blood did not contribute to the crash.
FN2. At the motion hearing on the motion in limine, defense witness, Dr. Stefan Rose, described the chemical process of marijuana in the body and expressed conclusions similar to those of Dr. Bidanset:
[G]enerally, when marijuana is smoked the THC from the smoke rapidly is transferred from the lungs into the bloodstream. Then, also rapidly, the THC is distributed throughout the bloodstream for about an hour or so as it enters, as it leaves the bloodstream and then goes into the other organs [including the brain] and fat tissue…. That process in a single dose of marijuana given to human beings take places in about an hour or so. The production of the inactive Metabolite Carboxy THC rises fairly slowly, and then reaches what might be thought of as a plateau blood concentration and stays at that concentration for a relatively long period of time in comparison to THC…. [T]he Carboxy THC[,] because it stays in the blood for a long period of time can remain from previous episodes of having smoked marijuana, whereas the THC will not be seen. So the presence of Carboxy THC in the blood is not always an indicator and may not be an indicator of recent marijuana use…. THC is the active compound in marijuana that … affects the brain…. It has a biologic effect…. Carboxy THC is the metabolite that does not possess the same biologic activity as THC, does not cause impairment, does not cause the things that THC causes.
“[R]elevant evidence is admissible, except as provided by law.Ӥ 90.402, Fla. Stat. (2007). Evidence is “relevant” if it tends “to prove or disprove a material fact.Ӥ 90.401, Fla. Stat. (2007). The presence of the marijuana metabolite, if relevant, was only barely so. The material fact at issue was the defendant’s impairment at the time of the crash. The only evidence at trial was that the defendant’s marijuana use “probably” did not affect him at the time of the collision. On the scale of relevancy, such tenuous probative value was “substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury.Ӥ 90.403, Fla. Stat. (2007). The heart of the state’s case was the drug Xanax. The evidence of marijuana metabolites in the defendant’s blood raised the spectre of illegal drug use, a fertile source of prejudice in the eyes of the jury.
This case is close to State v. McClain, 525 So.2d 420, 422 (Fla.1988), in which the Florida Supreme Court held that evidence of a trace amount of cocaine in the defendant’s blood was too prejudicial to admit in a vehicular manslaughter case, where alcohol was the cause of the driver’s impairment.
In McClain, the defendant was charged with vehicular manslaughter while intoxicated. Id. at 421.Analysis of the defendant’s blood conducted after the accident revealed a blood alcohol level of .14 and a trace of cocaine.Id. The defendant moved in limine to exclude all reference to the presence of cocaine and introduced the deposition of a chemist which stated that because the amount of cocaine was so small, it was not possible “to state whether or not the presence of cocaine could have affected the manner of defendant’s driving.”Id. The Florida Supreme Court affirmed the trial court’s order excluding the evidence; the court used a section 90.403 balancing approach to conclude that the minute probative value of the cocaine trace was outweighed by the danger of unfair prejudice:
*4 [I]t is clear that the probative value of the evidence of cocaine in [defendant's] blood was minimal. The amount of cocaine was so small that the chemist could express no opinion with respect to whether it would have had any effect at all upon [defendant's] driving. On the other side of the scales, [defendant] could have been seriously prejudiced in the eyes of the jury if it became known that he had ingested even a trace amount of cocaine.
McClain, 525 So.2d at 422.
We followed McClain in West v. State, 553 So.2d 254 (Fla. 4th DCA 1989), disapproved on other grounds, State v. Norstrom, 613 So.2d 437, 439 (Fla.1993).West involved a prosecution for alcohol-based DUI manslaughter. Over objection, the state introduced evidence of a trace amount of valium in the defendant’s blood. West, 553 So.2d at 255. Because the “expert testimony was [that] the valium had no measurable effect on [the defendant's] driving,” we held that the valium evidence had “no probative value or relevance to the charge of driving under the influence of alcohol” and that it was “unfairly prejudicial.”  Id.
Applying McClain and West, we hold that probative value of the marijuana metabolite in the defendant’s blood was substantially outweighed by the danger of unfair prejudice. The trial court abused its discretion by denying the defendant’s motion in limine. We reject the state’s invitation to find the error harmless; the state cannot show “beyond a reasonable doubt that there was no reasonable possibility that the error complained of contributed to the verdict.”Myles v. State, 967 So.2d 450, 453 (Fla. 4th DCA 2007); State v. DiGuilio, 491 So.2d 1129 (Fla .1986).
Next we consider the claim that the trial court erred in denying the defendant’s motion to sever the misdemeanor possession of marijuana charge from the DUI manslaughter charge. The applicable standard of review of a trial court’s denial of a motion to sever is abuse of discretion. See Smithers v. State, 826 So.2d 916, 922-23 (Fla.2002); Fotopoulos v. State, 608 So.2d 784 (Fla.1992).
The circuit court denied the motion, ruling that the marijuana possession charge and the DUI manslaughter charge were based on two or more “connected acts or transactions” under Florida Rule of Criminal Procedure 3.150(a), so that they were properly joined together. The court reasoned: “[T]he fact that the defendant’s statement that he was smoking marijuana the night before, that there is an accident the next morning, that they do find marijuana in his possession, you don’t think that that’s somewhat linked together?”
The trial court failed to adequately consider the ground for severance in Florida Rule of Criminal Procedure 3.152(a)(2)(A), that a severance is “appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.”Preventing an improper joinder is important under rule 3.152(a)(2)(A) because “evidence relating to each of the crimes may have the effect of bolstering the proof of the other.”See Dupree v. State, 705 So.2d 90, 95 (Fla. 4th DCA 1998) (quoting Crossley v. State, 596 So.2d 447, 450 (Fla.1992)); see also Rodriguez v. State, 909 So.2d 547, 550 (Fla. 4th DCA 2005). In other words, “[w]hile the testimony in one case standing alone may be insufficient to convince a jury of the defendant’s guilt, evidence that the defendant may have also committed another crime can have the effect of tipping the scales.”Id.
*5 In this case, the contested issue was whether the defendant was impaired by Xanax at the time of the accident. According to the evidence at trial, the defendant’s marijuana use did not contribute to his impairment. Allowing the jury to hear that the defendant possessed .95 grams of marijuana had a prejudicial effect on the trial of the manslaughter charge. There was a significant risk that evidence of the defendant’s possession of an illegal drug would bolster the state’s contention that yet another drug impaired the defendant’s ability to drive. The circuit court abused its discretion in denying severance and on retrial the DUI charge shall be severed from the marijuana possession charge.
For the remaining issues on appeal-the denial of the motion to suppress blood test results and the trial court’s refusal to admit testimony about an experiment-we find no error.
Reversed and remanded for the court to sever the remaining charges and conduct new trials.
SHAHOOD, C.J., and FARMER, J., concur.

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Guzman v. State

Wednesday, November 26th, 2008
District Court of Appeal of Florida, Fourth District.
Angel Andy GUZMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-4303.
Nov. 26, 2008.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 04-5396 CF10B.
Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
*1 Angel Andy Guzman appeals the trial court’s summary denial of his motion to withdraw the plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(l ). In that motion, after alleging that his plea was involuntary because of his trial counsel’s misadvice, Guzman requested that the court appoint conflict-free counsel. The court summarily denied his motion without appointing conflict-free counsel.
In Schriber v. State, this court held that a defendant is entitled to the appointment of counsel to advise and assist him in preparing a rule 3.170(l ) motion to withdraw the plea. 959 So.2d 1254, 1257 (Fla. 4th DCA 2007). Moreover, “the thirty-day window provided in rule 3.170(l ) is a critical stage of the criminal proceedings and it would be hollow indeed if the defendant were not allowed the guiding hand of counsel to assist in preparing the initial motion to withdraw the plea.”Id (citing Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999)). Accordingly, the trial court erred in summarily denying Guzman’s motion to withdraw the plea without first appointing conflict-free counsel to advise and assist Guzman in that motion. We reverse and remand, directing the trial court to appoint conflict-free counsel. The trial court may then determine whether to summarily deny the motion or to hold an evidentiary hearing.
Reversed and Remanded.
FARMER, J., concurs.
WARNER, J., concurs specially with opinion.WARNER, J., concurring specially.
I concur in the result because of prior precedent, but as I said in concurring in Williams v. State, 959 So.2d 830 (Fla. 4th DCA 2007), I believe that Florida Rule of Criminal Procedure 3.170(l ) is not a critical stage of the proceedings. The rule should be eliminated, as the defendant always has relief available under Florida Rule of Criminal Procedure 3.850.

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Walker v. State

Wednesday, November 26th, 2008
District Court of Appeal of Florida, Fourth District.
Terrance WALKER, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-122.
Nov. 26, 2008.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Nelson Bailey, Judge; L.T. Case Nos. 05-1373CFA06, 05-1555CFA06, 05-1556CFA06, 04-4046CFA06 and 04-14469CFA06.
Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
*1 The defendant appeals his sentence and argues that the trial court failed to give him proper credit for time served on all concurrent sentences. We agree. Accordingly, we reverse and remand the case to the trial court to correct the defendant’s sentence.
On October 26, 2007, the trial court sentenced the defendant to five years in prison with credit for 320 days time served concurrently in five cases on a violation of probation. On December 11, 2007, the court held a hearing on the defendant’s motion to clarify sentence.FN1At the hearing, the defendant argued he was actually entitled to an additional 28 months credit for time served prior to sentencing. Over the defendant’s objection, the trial court awarded the defendant additional credit only on a single conviction.
FN1. The court treated the defendant’s motion to clarify as a motion for correction.
On appeal, the defendant claims this was error because the trial court should have granted the additional credit on all concurrent sentences. See§ 921.161(1), Fla. Stat. (2005); Daniels v. State, 491 So.2d 543, 545 (Fla.1986).“[W]hen a defendant has jail-time credit on a sentence that is to run concurrently with another sentence, the concurrent sentence must also reflect that credit.”Netherly v. State, 873 So.2d 407, 410 (Fla. 2d DCA 2004). The State agrees. We therefore reverse and remand the case to the trial court to correct the sentences.
Reversed and Remanded.
TAYLOR, HAZOURI and MAY, JJ., concur.

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Oquendo v. State

Wednesday, November 26th, 2008
District Court of Appeal of Florida, Fourth District.
Joel OQUENDO, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-651.
Nov. 26, 2008.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Peter Weinstein, Judge; L.T. Case No. 97-895 CF10C.
Arthur L. Wallace, III, of the Law Offices of Arthur Wallace, Pompano Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
*1 Joel Oquendo appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. Because the records attached by the trial court to the order of denial do not refute some of Oquendo’s claims, we reverse and remand for further proceedings. We also direct the trial court to give Oquendo at least one opportunity to amend insufficient claims.
Procedural Background
Oquendo pleaded guilty in October 1997 to trafficking in cocaine and conspiracy to traffic in cocaine. As part of the plea, he entered into a substantial assistance agreement with the state and agreed to work with a Broward County detective in making drug-related arrests. A tape recording of Oquendo agreeing to the terms of the substantial assistance agreement was created and may have been incorporated as part of the negotiated plea in this case.
A factual dispute exists as to whether Oquendo provided assistance or not, but he admits that after entering the plea, he fled to Sarasota, Florida and changed his name. He alleges that he feared for his life because he was threatened by unnamed individuals. Oquendo’s sworn postconviction motion alleged that the detective who was supervising him instructed him to change his name and leave the jurisdiction until contacted by authorities. At a hearing in March 1998, the detective testified that Oquendo had violated the substantial assistance agreement by failing to maintain contact with the detective for several weeks. A warrant issued for Oquendo’s arrest. He was not apprehended until December 2005 when he was arrested in Miami-Dade County on multiple unrelated charges under the name Edis Rodriguez.
Oquendo was eventually identified as the person who had absconded in this case. In March 2007, the trial court in this case found that Oquendo had violated the terms of his plea agreement and sentenced him to concurrent terms of fifteen years in prison on each count.
Oquendo’s Motion
Oquendo filed the instant motion for postconviction relief listing more than twelve claims that attack the voluntariness of his plea and raise other matters. We briefly restate the claims as follows: (1) Oquendo was not provided an interpreter during the plea proceedings; (2) Counsel induced Oquendo to plead guilty; (3) The plea entered without a translator is unconstitutional; (4) Oquendo did not understand and was not informed of the elements of the offenses with which he was charged; (5) Oquendo was not informed of the consequences of a breach of the substantial assistance agreement; (6) The court failed to inform Oquendo that he had the right to not plead guilty and the court failed to ensure that Oquendo understood this right or to obtain a written waiver of the right to jury trial; (7) The court failed to ensure that the plea to each count was knowing and voluntary and supported by a legally sufficient factual basis; (8) The court failed to inform Oquendo of the mandatory minimum penalties for trafficking in cocaine or of the “additional penalties” of certain state and federal statutes that impose civil sanctions on those convicted of drug trafficking; (9) The convictions were predicated on a stipulated factual basis even though a substantial factual basis was lacking; (10) Counsel allegedly gave Oquendo misadvice and the state allegedly violated the plea agreement; (11) The trial court failed to award Oquendo all of his jail credit; and (12) Oquendo’s conviction constitutes a manifest injustice because he is actually innocent and was “entrapped” by a confidential informant for the state.FN1
FN1. During the course of his argument in the “Memorandum of Law” section of his motion, Oquendo asserts additional claims of trial court error and generally alleges throughout his motion that he received ineffective assistance of counsel as to all the alleged errors.
Insufficiently-Pleaded Claims
*2 Most of these claims are conclusorily alleged and do not merit relief. See Atwater v. State, 788 So.2d 223, 228 n. 5 (Fla.2001) (explaining “ ‘[a] defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing’ ”) (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).
Longstanding Florida caselaw requires that a postconviction movant describe with sufficient detail the factual support for a claim or the claim may be summarily denied. “The defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden.”Id. at 229;see also Morgan v. State, 991 So.2d 835, 841 (Fla.2008); Doorbal v. State, 983 So.2d 464, 482-84 (Fla.2008); McDonald v. State, 952 So.2d 484, 489-90 (Fla.2006); Jones v. State, 928 So.2d 1178, 1182 (Fla.2006); Parker v. State, 904 So.2d 370, 378 (Fla.2005); Wright v. State, 857 So.2d 861, 873 (Fla.2003); Reaves v. State, 826 So.2d 932, 939-40 (Fla.2002); Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000); LeCroy v. Dugger, 727 So.2d 236, 239-41 (Fla.1998); Jackson v. Dugger, 633 So.2d 1051, 1054 (Fla.1993); Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
The conclusory claims in Oquendo’s motion did not require an evidentiary hearing. In Spera v. State, 971 So.2d 754 (Fla.2007), however, the Florida Supreme Court determined that a trial court abuses its discretion when it fails to provide a postconviction movant at least one opportunity to amend a legally insufficient postconviction motion that fails to meet pleading requirements. Nevertheless, Spera did not expressly disturb the long line of precedent permitting summary denial of conclusory claims. Cf. Baldwin v. State, 978 So.2d 257 (Fla. 2d DCA 2008) (reversing denial of conclusory claim and remanding with directions to strike the insufficient claim). The Florida Supreme Court’s decisions in Morgan and Doorbal, cited above, issued after Spera and did not give the postconviction movants an opportunity to amend the conclusory claims.
Record Attachments Do Not Refute Oquendo’s Allegations: Spera Requires Remand
We are concerned with Oquendo’s numerous allegations regarding what occurred, or did not occur, at the plea hearing. The state attached to its response below a copy of the taped substantial assistance agreement in order to show that Oquendo could speak English, that he refused the assistance of a translator, and that he was advised of the terms of the agreement and the potential penalties he faced. The state did not attach any records regarding what transpired when the plea was entered, such as a transcript of a plea hearing or a written plea form. Thus, we cannot determine whether the terms discussed in the taped substantial assistance agreement were incorporated into the plea that Oquendo entered before the court.
*3 In addition, the tape offered to refute Oquendo’s claims was not authenticated. The state has not indicated that the tape it provided had been admitted into evidence in any prior proceedings in this case. While we agree that the person on the tape appears to have understood what was occurring and declined the assistance of an interpreter, the tape alone does not refute Oquendo’s claims regarding what occurred when he entered his plea.
We must reverse and remand for further proceedings in this case because the records attached to the order of denial do not refute some of Oquendo’s claims that his plea was not knowingly and voluntarily entered. We do not believe that the tape provided by the state can conclusively refute all of the claims absent some evidence that the tape, or the agreement memorialized therein, was incorporated as part of the plea agreement. Further, absent a stipulation, the tape must be authenticated as a true representation of Oquendo’s substantial assistance agreement. § 90.901, Fla. Stat. (2007). The state has not suggested that the tape it provided was part of the record or previously admitted into evidence. Again, the tape alone, without record evidence showing that the tape was incorporated as part of the plea agreement, does not refute all of the claims raised in the motion.
On remand, if records regarding the plea agreement cannot be obtained, then an evidentiary hearing may be required to establish what transpired at the plea hearing and to permit Oquendo an opportunity to prove any of his facially sufficient claims. The trial court should determine which claims are facially sufficient and not refuted by available records. The court should address only those claims at an evidentiary hearing.
In addition, the trial court must permit Oquendo a reasonable opportunity to amend any insufficiently-pleaded claims if Oquendo can do so in good faith.Spera, 971 So.2d at 762. While Oquendo’s motion is prefaced by his sworn allegations about what happened before his arrest in 1997 and what led to his plea, the motion does not detail the factual support for all the claims catalogued in the motion. Some claims are stated in passing and are not supported by any facts alleged in the motion. On remand, Oquendo should consider withdrawing meritless claims.
We repeat the Florida Supreme Court’s admonition that Spera did not intend to authorize “shell motions.”  Id. at 761.See also Gonzalez v. State, 990 So.2d 1017, 1034 (Fla.2008) (discussing the amendment to rule 3.851 which prohibits “shell motions” by expressly requiring “ ‘a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought’ ”) (quoting Fla. R.Crim. P. 3.851(e)(1)(D)). While rule 3 .850(c)(6) requires merely “a brief statement of the facts (and other conditions) relied on in support of the motion,” a claim that fails to specify facts necessary to support the claim is insufficient to warrant relief. Nevertheless, we believe that Spera requires at least one opportunity to amend claims to include supporting facts if the claim can be amended in good faith.
*4 We strongly condemn the practice of postconviction movants who file motions cataloguing long lists of claims unsupported by specific allegations. A movant who files such a frivolous and abusive motion, or who files a false or frivolous amendment, may be subjected to sanctions and disciplinary procedures. Spera, 971 So.2d at 762.
Applying Spera
Although Spera may increase the postconviction workload of the court system in the short run, if consistently applied by trial courts, Spera may ultimately reduce the burden on trial and appellate courts by ensuring that postconviction challenges are fully and fairly resolved in a single proceeding instead of in a piecemeal fashion. Piecemeal litigation of claims can be avoided by adherence to the principle announced in Spera.Because a movant now has the opportunity to correct a pleading deficiency during the initial proceedings on a motion, the rule announced in Spera has supplanted the caselaw that permitted successive motions if a prior motion was not determined on the merits. See Nelson v. State, 977 So.2d 710 (Fla. 1st DCA 2008) (holding that, after giving the defendant the one opportunity to amend required by Spera, if no amendment is filed or if the claim is again insufficient, the claim can be denied with prejudice ); see also Nelson v. State, 875 So.2d 579, 584 (Fla.2004).Spera suggests that an insufficient motion should be stricken, but did not describe the procedure to be followed where a postconviction motion contains numerous claims only some of which are insufficient.
The first district’s decision in Nelson describes a way to implement Spera that permits resolution of the entire motion, including insufficient claims, in one proceeding. 977 So.2d at 711-12. Using the procedure suggested in Nelson, a trial court should first determine whether any claims in the motion are insufficient. Id. at 711.The court should then permit the movant a reasonable opportunity to amend insufficient claims unless the deficiency cannot be cured. Spera suggested that normally a “reasonable” period of time would not exceed thirty days. 971 So.2d at 761. After permitting an opportunity to amend, if the movant does not amend the insufficient claims, or if the amended claims are again insufficient, the court may decide the entire motion on the merits and deny the insufficient claims with prejudice.As long as a postconviction movant has been afforded at least one opportunity to amend an insufficient claim, the trial court has discretion as to whether to permit any further amendment. Spera, 971 So.2d at 761. We believe that the procedure outlined in Nelson would be an efficient and useful method for trial judges in this district to employ as well.
False Statements Can Result in Sanctions
Finally, we note that the judge at sentencing in this case seems to have believed that Oquendo lied in court. Additionally, some of the allegations in the sworn motion for postconviction relief appear less than truthful.
*5 At the sentencing hearing in March 2007, the judge observed that Oquendo had requested an interpreter although he had previously spoken English in court. Oquendo’s interpreter read a statement Oquendo had prepared that raised many of the same claims he now raises in this motion. The state questioned Oquendo extensively about many of these allegations. Oquendo was evasive in his responses, but at several points denied signing or receiving forms that were allegedly delivered to him in open court. He claimed that he fled because he was “running for his life” and that he turned himself in because he was “guided by God in his life.”
Under questioning, Oquendo admitted that he had been arrested for unrelated charges under a different name and that he never volunteered to authorities his true identity before being brought before the court on the charges in this case. He, nevertheless, commented: “my fingerprints are the same always.”During questioning, Oquendo never suggested that he was told to flee and change his name by his supervising detective, as he alleges in this sworn postconviction motion. During the almost nine-year span when Oquendo was a fugitive, the detective had moved from the state of Florida and did not testify at the sentencing hearing.
If, during the proceedings on remand, the trial court determines that Oquendo has brought a frivolous or malicious action, or has knowingly or recklessly made false allegations, it should make written findings and refer him to the appropriate prison authorities for disciplinary procedures. § 944.279(1), Fla. Stat. (2007); Svoboda v. State, 932 So.2d 545 (Fla. 5th DCA 2006); see also Jones v. State, 33 Fla. L. Weekly D2000, D2001 (Fla. 1st DCA Aug. 15, 2008).
Postconviction movants should also remain aware that penalties for direct contempt of court or perjury may be imposed when movants are untruthful in postconviction proceedings. See Roberts v. State, 515 So.2d 434 (Fla. 5th DCA 1987) (approving a finding of direct contempt of court where the movant’s testimony was diametrically opposed to prior sworn testimony); see also Emanuel v. State, 601 So.2d 1273 (Fla. 4th DCA 1992) (explaining that a prosecution for perjury is the preferred alternative, but delineating under what circumstances direct contempt of court is appropriate).
Unless a credible threat of sanctions exists, postconviction movants have little incentive against saying whatever they choose in postconviction proceedings, regardless of truth. An organized system of justice cannot operate without respect for truth. Those seeking justice must respect truth. As Justice Anstead has observed, “[p]erjury poisons the well from which justice flows.”Emanuel, 601 So.2d at 1276.
We reverse and remand for further proceedings consistent with this opinion.
KLEIN, STEVENSON and DAMOORGIAN, JJ., concur.

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Farr v. State

Wednesday, November 26th, 2008
District Court of Appeal of Florida, Fourth District.
Linus G. FARR, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-3838.
Nov. 26, 2008.
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Steven J. Levin, Judge; L.T. Case No. 05-12 CFA.
Linus G. Farr, Stuart, pro se.
No appearance required for appellee.
PER CURIAM.
*1 Linus G. Farr appeals an order summarily denying a multitude of requests for relief pursuant to Florida Rules of Criminal Procedure 3.800(a) and 3.850, a petition for writ of habeas corpus, and a request for bail pending appeal, all of which the trial court referred to as a motion for mitigation and/or reduction of sentence and/or appeal bond. As the habeas petition raises issues which should have been raised in a rule 3.850 motion but does not contain the formal contents required by rule 3.850(c), and no basis for habeas corpus relief has been demonstrated, the appeal is being considered solely pursuant to rule 3.800(a). We affirm, without prejudice to appellant raising, in a proper rule 3.850 motion containing the contents required by rule 3.850(c), his ineffective assistance of counsel claims and any claim that, when he waived his jail credit, he did not waive also his “residential treatment” credit pursuant to section 316.193(6)(k), Florida Statutes. See Spera v. State, 971 So.2d 754, 755 (Fla.2007) (“[I]n dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected”).
Likewise, appellant’s brief raises claims of illegal sentence FN1 that the summary record provided to this court does not indicate he raised below. Those grounds are denied without prejudice to raising them before the trial court.
FN1. These include appellant’s claim that because he is to be released from the treatment imposed as a condition of his current probation when all parties agree, the state may require him to remain in the treatment facility indefinitely; that the trial court did not credit him with time previously spent on probation prior to the revocation of probation when imposing a new term of probation; and that errors were made on his scoresheet.
WARNER, STEVENSON and TAYLOR, JJ., concur.

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Wainwright v. State

Wednesday, November 26th, 2008
Supreme Court of Florida.
Anthony Floyd WAINWRIGHT, Appellant,
v.
STATE of Florida, Appellee.
No. SC07-2005.
Nov. 26, 2008.
An Appeal from the Circuit Court in and for Hamilton County, E. Vernon Douglas, Judge-Case No. 94-150-CF-2.
Joseph T. Hobson of Hobson Law Firm, P.A., Clearwater, FL, for Appellant.
Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
PER CURIAM.
*1 This case is before the Court on appeal from an order under Florida Rule of Criminal Procedure 3.851 denying a successive motion to vacate a judgment of conviction of first-degree murder and a sentence of death. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons explained below, we affirm the trial court’s order denying relief.
I. FACTS AND PROCEDURAL HISTORY
Anthony Floyd Wainwright was convicted of first-degree murder, robbery, kidnapping, and sexual battery in relation to the murder of Carmen Gayheart. After a unanimous jury recommendation, the trial court sentenced Wainwright to death. On direct appeal, this Court affirmed Wainwright’s convictions and death sentence and set out in detail the factual background and procedural history of the case. Wainwright v. State, 704 So.2d 511 (Fla.1997). After his conviction and sentence of death were final, Wainwright filed an initial motion for postconviction relief and a petition for a writ of habeas corpus, each raising several issues. This Court affirmed the trial court’s denial of the initial postconviction motion and denied the habeas petition. Wainwright v. State, 896 So.2d 695 (Fla.2004).
On July 16, 2007, Wainwright filed a successive motion for postconviction relief, raising a newly discovered evidence claim.FN1Wainwright alleged that in a written statement his codefendant Richard Hamilton asserted that “Wainwright was not involved in any manner of [sic] the sexual assault committed upon the victim in this case.”In his statement, Hamilton explained that he came forward because “I do not feel comfortable with [Wainwright] being convicted with this felony when [I] was the sole perpetrator, nor do [I] feel justice is served by allowing this felony to exist against him when it is false.”
FN1. To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements: First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998)(Jones II ). Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.”Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence. See Jones v. State, 591 So.2d 911, 915 (Fla.1991)(Jones I ).
The postconviction trial court summarily denied Wainwright’s newly discovered evidence claim. The trial court found that Wainwright failed to state a legally sufficient claim because his motion failed to set forth any explanation as to why Hamilton’s admission could not have been raised in a prior proceeding.State v. Wainwright, No. 94-150-CF-2 (Fla.3d Cir. order filed Sept. 20, 2007) (Postconviction Order) at 4. The trial court also rejected Wainwright’s claim on the merits. The trial court found that, accepting Hamilton’s statement as true, there was no reasonable probability of an acquittal or life sentence on retrial because the evidence in the record overwhelmingly supported Wainwright’s convictions and the aggravating factors. Id. at 11, 14.Wainwright challenges this summary denial on appeal.
II. ANALYSIS
This Court reviews a summary denial on the pleadings de novo and “must accept all allegations in the motion as true to the extent they are not conclusively rebutted by the record.”Rutherford v. State, 926 So.2d 1100, 1108 (Fla.2006) (quoting Hodges v. State, 885 So.2d 338, 355 (Fla.2004)); see also Van Poyck v. State, 961 So.2d 220, 224 (Fla.2007). In determining whether the evidence compels a new trial, the trial court must “consider all newly discovered evidence which would be admissible” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.”Jones v. State, 591 So.2d 911, 916 (Fla.1991)(Jones I ).
*2 We agree with the trial court that given the totality of the evidence in this case, the allegedly newly discovered statement does not “give rise to a reasonable doubt as to [Wainwright's] culpability,”Jones v. State, 709 So.2d 512, 526 (Fla.1998)(Jones II ) (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)), and that it would not probably yield a less severe sentence on retrial, Jones I, 591 So.2d at 915. We therefore hold that the trial court correctly determined that Wainwright is not entitled to relief.
First, we agree with the trial court that assuming Hamilton would testify consistently with his written statement on retrial, his statement and testimony would not probably result in a jury acquitting Wainwright of sexual battery or first-degree murder. At trial, Hamilton County Sheriff James Harrell Reid testified that Wainwright confessed that he raped the victim. Reid testified that Wainwright “stated that after they had gotten off the interstate and found this wooded area, the area which he described as the murder scene … that he made Ms. Gayheart get into the very back of the Bronco, and that back there he raped her and had sex with her.”In addition, Gary Gunter, a prisoner housed with Wainwright in the Taylor County Jail testified that Wainwright told him “they took her down a dirt road and both of them had sex with her.”The State also admitted DNA evidence consistent with Wainwright having sexually battered the victim. Specifically, DNA testing determined that a semen stain found on the rear seat cover of the victim’s Bronco matched Wainwright, and the stain included an epithelial (skin cell) fraction consistent with the victim. Given Wainwright’s admissions and the DNA evidence, Hamilton’s statement would not probably produce an acquittal of sexual battery on retrial .FN2
FN2. We also agree with the trial court’s conclusion that Wainwright would be convicted of sexual battery as a principal were the jury to believe that Wainwright did not personally sexually batter Gayheart. § 777.011, Fla. Stat. (1993) (“Whoever commits any criminal offense against the state … or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such….”). Lieutenant Mallory Daniels, an investigator with the Hamilton County Sheriff’s Office, testified that Wainwright gave a statement to law enforcement officers admitting that he drove the victim’s vehicle while Hamilton raped her. Wainwright’s actions facilitating Hamilton’s sexual assault establish that Wainwright is guilty as a principal of sexual battery. See State v. Williams, 637 So.2d 45, 46 (Fla. 2d DCA 1994) (affirming defendant’s conviction as principal for sexual battery with deadly weapon where he drove while codefendant holding gun forced victim to perform oral sex and raped her).
Hamilton’s statement likewise does not raise reasonable doubt about Wainwright’s culpability for first-degree murder under either a felony murder or a premeditated murder theory. The conviction for first-degree murder under the felony murder theory is supported by not only the conviction for sexual battery but also Wainwright’s convictions for armed robbery and armed kidnapping. Both are qualifying felonies under the felony murder statute. § 782.04(1)(a)(2)(d), (1)(a)(2)(f), Fla. Stat. (1993). Furthermore, Hamilton’s recent assertion that Wainwright did not rape Gayheart does not weaken the more than sufficient evidence of premeditation present in this case. For example, Sheriff Reid testified that Wainwright told Reid that he and Hamilton threw the victim’s jewelry out of the vehicle prior to the murder because they “had already planned to kill her, and [they] didn’t want any articles of jewelry to be found on her body.”Robert Allen Murphy, a fellow Taylor County prisoner, testified that Wainwright told him that he tried to strangle the victim, but she would not die, so he shot her in the back of the head twice. Finally, we note that in finding the cold, calculated, and premeditated aggravating factor (CCP), which requires proof of heightened premeditation, the sentencing court did not rely on the sexual battery to support its finding. For all of these reasons, the trial court properly found that Hamilton’s statement would not probably produce an acquittal of first-degree murder on retrial.
*3 Second, we agree with the trial court that on this record, Hamilton’s statement does not undermine or invalidate the committed in the course of a felony and heinous, atrocious, or cruel (HAC) aggravating factors. The sentencing court found the committed in the course of a felony aggravating factor applicable based on Wainwright’s convictions of armed robbery, armed kidnapping, and armed sexual battery. Thus, regardless of whether Wainwright would be convicted of sexual battery in a retrial, this aggravator would still be supported by the two other felony convictions. In finding the HAC aggravating factor applicable, the sentencing court considered that both defendants raped the victim. However, as the postconviction trial court found in rejecting Wainwright’s claim, it also considered numerous other factors: (1) the victim pondered her fate for one and one-quarter to one and one-half hours; (2) Hamilton sexually battered the victim while Wainwright drove; (3) the victim cried and asked to be released; (4) Wainwright strangled the victim, taking at least thirty seconds to render her unconscious; (5) the victim resisted her death, causing Wainwright to describe her as “like a puppy” hit in the head; and (6) the victim endured thirty minutes of terror at the murder site before her murder. Postconviction Order at 12. The trial court did not err in concluding that evidence of strangulation alone may be sufficient to support the HAC aggravator. “[T]his Court has consistently upheld the HAC aggravator in cases where a conscious victim was strangled.”Bowles v. State, 804 So.2d 1173, 1178 (Fla.2001). Given that Gayheart was strangled and shot after an extended period of terrorization, Hamilton’s statement that Wainwright did not rape Gayheart is not likely to invalidate the HAC aggravating factor or yield a less severe sentence on retrial.
III. CONCLUSION
In conclusion, given the totality of the evidence, Hamilton’s statement would not raise reasonable doubt about the convictions or undermine any of the six aggravators found in this case. While Hamilton’s statement asserts that Wainwright did not personally participate in the sexual battery, the evidence as a whole demonstrates that Wainwright was a full and willing participant in the remainder of the criminal events leading to Gayheart’s murder. Therefore, there is no probability that Hamilton’s statement would produce an acquittal or life sentence on retrial. See Van Poyck, 961 So.2d at 226 (affirming summary denial of newly discovered evidence claim where testimony would not have created reasonable probability of a lesser sentence); Rutherford v. State, 940 So.2d 1112, 1121 (Fla.2006) (affirming summary denial of newly discovered evidence claim where there was no probability that evidence would result in life sentence on retrial). Accordingly, we affirm the trial court’s order summarily denying Wainwright’s successive motion for postconviction relief.
It is so ordered.
QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, LEWIS, and CANADY, JJ ., concur.
POLSTON, J., did not participate.

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In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES

Wednesday, November 26th, 2008
Supreme Court of Florida.
In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2008-01.
No. SC08-335.
Nov. 26, 2008.
Original proceeding-Standard Jury Instructions in Criminal Cases.
Judge Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, for Petitioner.
Nancy Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, Responding with comments.
PER CURIAM.
*1 The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to Standard Jury Instructions in Criminal Cases 3.12(a)-Single Defendant, Multiple Counts or Information, 3.12(c)-Multiple Counts or Informations, Multiple Defendants, and 3.12(d)-Legally Interlocking Crimes, and requests that the Court authorize the new and amended standard instructions for publication and use. We directed that the proposals be published for comment in The Florida Bar News.Having considered the Committee’s report and the comment filed, we authorize the publication and use of these instructions as discussed below.FN1
FN1. We have jurisdiction. Seeart. V, § 2(a), Fla. Const.
On June 27, 2008, in light of our decision in Brown v. State, 959 So.2d 218 (Fla.2007), we requested that the Committee file a report proposing amendments to instruction 3.12(a), Single Defendant, Multiple Counts or Informations, as it pertains to legally interlocking counts. In Brown, we observed that
[w]ith legally interlocking counts, instruction 3.12(a) misleads the jury. If the counts are legally interlocking, by definition, the jury should not consider each count separately. This issue, and the suggestion of a new alternative jury instruction, was raised many years ago by Judge Harris of the Fifth District. See Cuevas v. State, 741 So.2d 1234, 1240 (Fla. 5th DCA 1999) (Harris, J., concurring specially). We request that the Committee on Standard Jury Instructions in Criminal Cases consider this issue and propose to the Court an alternative instruction which would address the situation of legally interlocking counts.
959 So.2d at 223 n. 1.
On February 25, 2008, the Committee filed its report proposing amendments to instruction 3.12(a)-Single Defendant, Multiple Counts or Information, and 3.12(c)-Multiple Counts or Informations, Multiple Defendants, and proposing a new instruction 3.12(d)-Legally Interlocking Crimes. Following the filing of a public comment to the proposals, the Committee revised its proposal to instruction 3.12(d).
The Committee’s comments to instructions 3.12(a) and 3.12(c) are revised to refer the trial court to instruction 3.12(d) if legally interlocking crimes are charged, and to explain when those particular instructions should be used. Instruction 3.12(d) is patterned after the concurring opinion in Cuevas v. State, 741 So.2d 1234, 1240 (Fla. 5th DCA 1999) (Harris, J., concurring specially) (“I suggest that the committee on criminal jury instructions propose an instruction which would advise the jury that when counts involving legally interlocking charges are involved, the jury should first consider the predicate offense and should it find such offense not proved beyond a reasonable doubt, it should acquit also on the compound felony. On the other hand, if the predicate offense is sufficiently proved, then the jury should be instructed to consider the count alleging the compound felony.”). In addition, the Committee’s comment to instruction 3.12(d) is intended to help the trial courts identify legally interlocking charges and avoid the error of truly inconsistent verdicts, i.e.,“those in which an acquittal on one count negates a necessary element for conviction on another count.”Brown, 959 So.2d at 220 (quoting Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA 1983)). We modify slightly the comment to instruction 3.12(d) to reflect that, in addition to instruction 3.12(a), instruction 3.12(c) should not be read if the jury is instructed only on legally interlocking counts.
*2 We hereby authorize the publication and use of instructions 3.12(a)-Single Defendant, Multiple Counts or Information, 3.12(c)-Multiple Counts or Informations, Multiple Defendants, and 3 .12(d)-Legally Interlocking Crimes, as set forth in the appendix to this opinion. In doing so, we express no opinion on the correctness of those instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck through. The instructions as set forth in the appendix FN2 shall be effective when this opinion becomes final.
FN2. The amendments as reflected in the appendix are to the Standard Jury Instructions in Criminal Cases as they appear on the Court’s website at www.floridasuprem ecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.
It is so ordered.
QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, LEWIS, and CANADY, JJ ., concur.
POLSTON, J., did not participate.
APPENDIX
3.12(a) SINGLE DEFENDANT, MULTIPLE COUNTS OR INFORMATIONS
A separate crime is charged in each [count of the information] [indictment] [information] and, although they have been tried together, each crime and the evidence applicable to it must be considered separately and a separate verdict returned as to each. A finding of guilty or not guilty as to one crime must not affect your verdict as to the other crime(s) charged.
Comment
See instruction 3.12(d) if legally interlocking crimes are charged, but this instruction should be read for any non-legally interlocking counts.
This instruction was adopted in 1981 and was amended in 2008.
3.12(c) MULTIPLE COUNTS OR INFORMATIONS, MULTIPLE DEFENDANTS
A separate crime is charged against each defendant in each [count of the information] [information] [indictment]. The defendants have been tried together; however, the charges against each defendant and the evidence applicable to [him][her] must be considered separately. A finding of guilty or not guilty as to [one] [both] [or] [some] of the defendants must not affect your verdict as to any other defendant(s) or other crimes charged.
Comment
See instruction 3.12(d) if legally interlocking crimes are charged, but this instruction should be read for any non-legally interlocking counts, or multiple informations or indictments.
This instruction was adopted in 1981 and was amended in 2008.
3.12(d) LEGALLY INTERLOCKING COUNTS
Counts [A and B](substitute appropriate count numbers)are linked in that the crime charged in count [A](identify predicate charged crime)is an essential element of the crime charged in count [B](identify compound charged crime).You should first consider the evidence applicable to count [A]. If you find the crime in count [A] has not been proven beyond a reasonable doubt, you must find the defendant not guilty on both counts [A] and [B].
*3 If, on the other hand, you find that the crime charged in count [A] has been proven beyond a reasonable doubt, you must then consider the evidence applicable to count [B]. A guilty verdict on count [A] does not require a guilty verdict on count [B]. You should find the Defendant guilty on count [B] only if you find all the elements of that crime, including the essential elements contained in count [A], were proven beyond a reasonable doubt.
Comment
Do not read instruction 3.12(a) or instruction 3.12(c) if the jury is instructed only on legally interlocking counts.
Legally interlocking crimes are charged when the crime charged in one count of the information or indictment is an essential element of the crime charged in another count. As a general rule, inconsistent verdicts are permitted because they may be the result of jury lenity. There is only one recognized exception to this general rule, namely, the “true inconsistent verdict” exception. True inconsistent verdicts are “those in which an acquittal on one count negates a necessary element for conviction on another count.”Read cases such as Brown v. State, 959 So.2d 218 (Fla.2007) and Gonzalez v. State, 440 So.2d 514 (Fla. 4th DCA 1983).

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In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES

Wednesday, November 26th, 2008
Supreme Court of Florida.
In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2008-03.
In re Standard Jury Instructions In Criminal Cases-Report No. 2008-06.
Nos. SC08-490, SC08-1487.
Nov. 26, 2008.
Original Proceedings-Standard Jury Instructions in Criminal Cases.
Judge Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, for Petitioner.
Judge Barbara Areces, Eleventh Judicial Circuit, Miami, FL, Responding with comments.
PER CURIAM.
*1 The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted two proposed standard jury instructions, 21.1-Resisting Officer with Violence (in Case No. SC08-490) and 21.2-Resisting Officer without Violence (in Case No. SC08-1487). We requested that the Committee propose revisions to the instructions in light of our opinion in Polite v. State, 973 So.2d 1107 (Fla.2007). In Polite, we concluded that “knowledge of the officer’s status is an essential element of the crime of resisting an officer with violence under section 843.01[, Florida Statutes (2002) ].”973 So.2d at 1118. The Committee requests that we authorize the revised standard instructions for publication and use. We have jurisdiction. Seeart. V, § 2(a), Fla. Const.
In April 2007, the Committee proposed amendments to instruction 21.2 in a previous case (Case No. SC07-705) in which we declined to authorize the instruction for publication and use. Later, we referred instruction 21.2 back to the Committee for consideration in light of Polite.The Committee revised instruction 21.2 and published its proposal in the April 1, 2008, edition of The Florida Bar News.One comment was submitted to the Committee. The Committee filed a separate report proposing revised amendments to instruction 21.2, which was assigned case number SC08-1487.
In March 2008, the Committee filed majority and minority reports addressing revisions to instruction 21.1, which were assigned case number SC08-490. Because those revisions had not been published for comments, the Court published the proposal for comments in the April 15, 2008, edition of The Florida Bar News.One comment was filed with the Court. The Committee filed a response along with a proposed amended revision to instruction 21.1.
The Committee later moved for consolidation of case numbers SC08-490 and SC08-1487, requesting that we consider these revised proposed instructions together. The motion for consolidation was granted. Having considered the reports and comments on the revised instructions, we hereby authorize the publication and use of instructions 21.1 and 21.2 as set forth in the appendix attached to this opinion. In doing so, we express no opinion on the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the views of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.
New language is indicated by underlining, and deleted language is struck through. The instructions as set forth in the appendix FN1 shall be effective when this opinion becomes final.
FN1. The amendments as reflected in the appendix are to the Standard Jury Instructions in Criminal Cases as they appear on the Court’s website at www.floridasuprem ecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 18, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.
It is so ordered.
QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, LEWIS, and CANADY, JJ ., concur.
POLSTON, J., did not participate.
APPENDIX
21.1 RESISTING OFFICER WITH VIOLENCE
§ 843.01, Fla. Stat.
*2 To prove the crime of Resisting Officer with Violence, the State must prove the following four elements beyond a reasonable doubt:
1.(Defendant) knowingly and willfully [resisted] [obstructed] [opposed] (victim) by [offering to do [him][her] violence] [doing violence to [him] [her]].
2. At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty].
3. At the time, (victim) was [an officer]][a person legally authorized to execute process].
4. At the time,(Defendant)knew(victim)was [an officer] [a person legally authorized to execute process].
In giving the instruction below, insert the class of officer to which the victim belongs, e.g., law enforcement officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla.1991). See § 843.01 Fla. Stat. for the type of officer covered by this statute.
The court now instructs you that every (name of official position of victim designated in charge) is an officer within the meaning of this law.
Note to Judge:
A special instruction incorporating § 776.051(1) Fla. Stat. should be given when the defense claims the officer was acting unlawfully.
A special instruction incorporating instructions 3.6(f); 3.6(g); and/or 3.6(h) should be given when the defense claims the police used excessive force.
Definition. Give if applicable.
“Offering” to do violence means threatening to do violence.
Walker v. State, 965 So.2d 1281 (Fla. 2nd DCA 2007).
Lesser Included Offenses
RESISTING OFFICER WITH VIOLENCE-843.01
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Resisting officer without violence
843.02
21.2
Comment
This instruction was adopted in 1981 and amended in 1995 and 2008.
21.2 RESISTING OFFICER WITHOUT VIOLENCE
§ 843.02, Fla. Stat.
To prove the crime of Resisting Officer without Violence, the State must prove the following four elements beyond a reasonable doubt:
1.(Defendant) [resisted] [obstructed] [opposed] (victim).
2. At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty].
*3 3. At the time, (victim) was[an officer] [a person legally authorized to execute process].
4. At the time,(defendant)knew(victim)was [an officer][a person legally authorized to execute process].
In giving the instruction below, insert the class of officer to which the victim belongs, e.g., law enforcement officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla.1991). See § 843.02 Fla. Stat. for the type of officer covered by this statute.
The court now instructs you that every (name of official position of victim designated in charge) is an officer within the meaning of this law.
Lesser Included Offenses
RESISTING OFFICER WITHOUT VIOLENCE-843.02
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1981 [431 So.2d 594] and amended in 1989 [543 So.2d 1205], 1995 [657 So.2d 1152] and 2008.

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