Archive for November, 2008

« Older Entries
Newer Entries »

Braswell v. State

Wednesday, November 26th, 2008

District Court of Appeal of Florida, Second District.
Terry BRASWELL, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-1867.
Nov. 26, 2008.
Appeal from the Circuit Court for Hillsborough County; Daniel L. Perry, Judge.
Guillermo E. Gomez, Jr., of Gomez & Touger, P.A., Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
*1 Terry Braswell appeals an order revoking his probation and the resulting sentences he received upon revocation. We affirm the order revoking probation but remand for a new sentencing hearing before a different judge.
Mr. Braswell was charged with possession and sale of methamphetamine in 2006. He pleaded guilty in exchange for two concurrent terms of twenty-four months’ drug offender probation. While serving that probation, he was charged with violating condition six by associating with people engaged in criminal activity and condition seven by using intoxicants to excess.
When he appeared before the trial court on the violation of probation, Mr. Braswell admitted the two violations and left his sentence to the discretion of the trial judge. His scoresheet permitted the trial judge to impose a term of imprisonment as low as thirty-two months. The trial judge sentenced him to the maximum fifteen-year term of imprisonment for the charge of sale of methamphetamine with a concurrent five-year sentence for the charge of possession.
What Mr. Braswell and his attorney did not know at the time he entered this plea was that the trial judge had recently heard evidence in another case of alleged drug-dealing by Mr. Braswell while he was serving this term of probation. The trial court did not disclose this information to Mr. Braswell before his plea. The proceedings in the other case were eventually transcribed and placed in this record. After reviewing that transcript, we see no basis to allow Mr. Braswell to withdraw his plea, but we agree that he is entitled to be resentenced by a different trial judge.
Affirmed in part, reversed in part, and remanded.
ALTENBERND and KHOUZAM, JJ., and CASE, JAMES R., Associate Senior Judge, Concur.

Posted in | No Comments »

Green v. State

Wednesday, November 26th, 2008

District Court of Appeal of Florida, First District.
Reginald Alexander GREEN, Appellant,
v.
STATE of Florida, Appellee.
No. 1D06-4115.
Nov. 26, 2008.
An appeal from the Circuit Court for Alachua County. Robert P. Cates, Judge.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
ON REMAND
PER CURIAM.
*1 In our original decision in this case, Green v. State, —So.2d —-, 32 Fla. L. Weekly D1213, (Fla. 1st DCA May 8, 2007), we reversed appellant’s conviction, although we acknowledged conflict with the Fourth District’s decision in Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), then pending review and subsequently approved by our supreme court. See Garzon v. State, 980 So.2d 1038 (Fla.2008).
After deciding Garzon, 980 So.2d at 1038, the supreme court accepted jurisdiction in the present case, summarily quashed our original decision, and remanded for reconsideration in light of its decision in Garzon.See State v. Green, — So.2d —-, 33 Fla. L. Weekly at S720 (Fla. Sept. 25, 2008).
We now reconsider our decision in accordance with the supreme court’s mandate, mindful that the Garzon decision disapproved the decisions in Davis v. State, 922 So.2d 279 (Fla. 1st DCA 2006), and Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), on which we originally relied. See980 So.2d at 1045.
The present case, like Garzon, concerns “the unobjected-to use of the ‘and/or’ conjunctive phrase between the names of defendants in criminal jury instructions.”980 So.2d at 1039. Here, as in Garzon, a standard charge on principals, and a “multiple defendants instruction” accompanied the instructions on the elements of the substantive offense, here uttering a forgery. Id. at 1040.Here, too, as in Garzon,“each jury verdict form was individualized to each defendant and did not use the ‘and/or’ language.”Id.
Appellant stood trial with a single co-defendant, who was acquitted. In arguing to the jury, the prosecutor acknowledged the state’s burden to prove each defendant guilty “separately.” Both were present at the bank when the effort to cash a counterfeit check was made. The state sought to prove that the co-defendant was not merely “a pawn in [appellant's] scheme to try to cash this check,” while the co-defendant defended on the theory that the co-defendant’s role had been that of an unwitting “fall guy.” Co-defendant and state alike argued for appellant’s culpability while appellant defended on the theory that there was a failure to prove he knew the check was a forgery.
“In sum, considering the use of ‘and/or’ in light of the other jury instructions, the attorneys’ arguments, and the circumstances at trial,”Garzon, 980 So.2d at 1042, we conclude, as the supreme court did in Garzon,“that the use of ‘and/or’ in this case did not result in fundamental error,”id. at 1043, although, again like the supreme court in Garzon,“we do conclude that the use of the ‘and/or’ instructions was error.”Id. at 1045.Absent contemporaneous objection, however, mere error is no basis for overturning appellant’s conviction.
Accordingly, upon reconsideration, the judgment is affirmed.
ALLEN, WEBSTER, and BENTON, JJ., concur.

Posted in | No Comments »

Brown v. State

Wednesday, November 26th, 2008

District Court of Appeal of Florida, First District.
Jimetavious BROWN, Appellant,
v.
STATE of Florida, Appellee.
No. 1D07-5360.
Nov. 26, 2008.
An appeal from the Circuit Court for Okaloosa County, G. Robert Barron, Judge.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Laura Anstead and David P. Gauldin, Assistant Public Defenders, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
*1 Appellant, Jimetavious Brown, challenges the denial of his motion to withdraw his plea filed pursuant to Florida Rule of Criminal Procedure 3.170(l ). Appellant argues, and the State concedes, that the trial court reversibly erred by failing to appoint conflict-free counsel upon his timely assertion that he was misinformed as to the sentence he would receive. See Norman v. State, 897 So.2d 553, 553 (Fla. 1st DCA 2005) (“This Court has consistently held that, ‘once a defendant indicates his desire to avail himself of the rule 3.170(l ) procedure, the trial court must appoint conflict-free counsel to advise and assist the defendant in this regard.’”) (citation omitted).Accord Jones v.. State, 987 So.2d 109, 109 (Fla. 1st DCA 2008); Mullins v. State, 981 So.2d 1281, 1282 (Fla. 1st DCA 2008); Mosley v. State, 932 So.2d 1239, 1239 (Fla. 1st DCA 2006).
Accordingly, we REVERSE the order and REMAND for the appointment of conflict-free counsel to assist Appellant in this cause.
BARFIELD, DAVIS, and HAWKES, JJ., Concur.

Posted in | No Comments »

Sheppard v. State

Wednesday, November 26th, 2008

District Court of Appeal of Florida, First District.
Ruben Henry SHEPPARD, Appellant,
v.
STATE of Florida, Appellee.
No. 1D07-6155.
Nov. 26, 2008.
An appeal from the Circuit Court for Alachua County, Thomas M. Jaworski, Judge.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
*1 The appellant should not have been sentenced as a prison releasee reoffender upon his conviction for battery on a law enforcement officer, as that offense does not qualify for such sentencing. State v. Hearns, 961 So.2d 211 (Fla.2007). The prison releasee reoffender designation is therefore stricken from the sentence for that battery. This does not affect the prison releasee reoffender designation on the sentence for resisting an officer with violence. As amended herein, the appealed orders are affirmed.
ALLEN, DAVIS, and BENTON, JJ., Concur.

Posted in | No Comments »

Lanterman v. State

Wednesday, November 26th, 2008

District Court of Appeal of Florida, First District.
Eric B. LANTERMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 1D08-1933.
Nov. 26, 2008.
An appeal from the Circuit Court for Duval County, Michael R. Weatherby, Judge.
Eric B. Lanterman, pro se, Appellant.
Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
*1 Appellant challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record does not conclusively refute his claim of entitlement to additional jail credit, we reverse.
Appellant alleges that he is entitled to 254 days of jail credit, but that his written judgment reflects only 224 days of credit. Where a written discrepancy exists as to the amount of jail credit an appellant was awarded during the oral pronouncement of his sentence, the sentencing order must be corrected to reflect the oral pronouncement. See Guerra v. State, 927 So.2d 248 (Fla. 2d DCA 2006). The trial court denied the appellant’s motion on the basis that appellant was only entitled to 220 days of credit. However, the trial court failed to attach portions of the record demonstrating that the trial court made a clerical error in orally pronouncing appellant was entitled to 254 days of jail credit.
We reverse the trial court’s summary denial of appellant’s motion and remand for record attachments conclusively refuting appellant’s claim or for the award of additional jail credit, as the record dictates.
REVERSED and REMANDED, with directions.
WEBSTER, DAVIS, and HAWKES, JJ., Concur.

Posted in | No Comments »

Comer v. State

Wednesday, November 26th, 2008

District Court of Appeal of Florida, First District.
Charles COMER, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D08-2099.
Nov. 26, 2008.
Petition Alleging Ineffective Assistance of Appellate Counsel-OriginalJurisdiction.
Charles Comer, pro se, Petitioner.
Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
PER CURIAM.
*1 Charles Comer was tried by a jury and convicted of sale of a controlled substance, two counts of aggravated assault with a deadly weapon, and resisting arrest with violence. The victims of the assault were the same deputy sheriffs whom Comer resisted. On appeal, appellant’s counsel filed a brief consistent with Anders v.. California, 386 U.S. 738 (1967), and this court affirmed, Comer v. State, 935 So.2d 502 (Fla. 1st DCA 2006).
Comer now alleges that he received ineffective assistance of counsel in his direct appeal, and we agree. In instructing the jury on assault, the court advised that findings of guilt could be made if it was found that the defendant intentionally and willfully threatened to do violence to one of the deputies and/or the other, and that this action created in the mind of one deputy and/or the other a well-grounded fear that violence was about to take place. The “and/or” conjunctive was used in similar fashion when the jury was instructed on resisting arrest. These instructions were found to be fundamental error in Miller v. State, 918 So.2d 415 (Fla. 2d DCA 2006) (relying on Tindle v. State, 832 So.2d 966 (Fla. 5th DCA 2002), and James v. State, 706 So.2d 64 (Fla. 5th DCA 1998)). Counsel’s failure to argue this issue constituted a serious or substantial deficiency falling measurably outside the range of professionally acceptable performance and compromised the appellate process to a degree that it undermines confidence in the result of Comer’s direct appeal of his judgment and sentence. See Pope v. Wainwright, 496 So.2d 798 (Fla.1986).
As in Shabazz v. State, 955 So.2d 57 (Fla. 1st DCA 2007), we find that the appropriate remedy is to order a new appellate proceeding to review these jury instruction issues, rather than ordering a new trial. This will permit briefing and review of the record on appeal to determine whether Garzon v. State, 980 So.2d 1038 (Fla.2008), should be applied in reviewing these convictions and, if so, whether the record supports a conclusion that Comer is entitled to a new trial. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, who shall treat it as a notice of appeal for a new appellate proceeding which shall be limited to the use of “and/or” in instructing the jury. The trial court shall appoint counsel to represent Comer in the new proceeding if he qualifies for such an appointment.
PETITION GRANTED.

Posted in | No Comments »

Cadejuste v. State

Monday, November 24th, 2008

District Court of Appeal of Florida, Fourth District.
Marco CADEJUSTE, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-1370.
Oct. 22, 2008.
Rehearing Denied Nov. 24, 2008.
Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
ROSENBERG, ROBIN, Associate Judge.
*1 The defendant, Marco Cadejuste, raises two distinct issues on appeal in this case. The first issue addresses whether the trial court erred in allowing an attorney to represent Cadejuste at trial after this same attorney had withdrawn from representing Cadejuste in the past based on a conflict of interest arising out his joint representation of Cadejuste and his co-defendant. The second issue concerns whether the trial court erred in denying Cadejuste’s motion to suppress based on the deficiency of the Miranda warnings and the involuntariness of Cadejuste’s confession. We reverse the conviction based on the conflict of counsel and remand for a new trial. We do not address the issues arising from the motion to suppress.
FACTUAL SUMMARY
The defendant, Marco Cadejuste, was charged by information with four counts of attempted armed robbery while wearing a mask, two counts of attempted armed robbery of a structure while masked, two counts of resisting an officer with violence, burglary of an occupied dwelling and possession of a firearm by a convicted felon while masked. Cadejuste later entered a plea on some of the counts. Cadejuste went to trial on three counts of attempted robbery while wearing a mask, two counts of resisting an officer with violence, trespass of an occupied dwelling (a lesser offense of burglary of an occupied dwelling) and possession of a firearm by a felon while masked.
Cadejuste initially was represented by Patrick MacRae, who was an Assistant Public Defender at the time that he was appointed at first appearance on March 26, 2004. MacRae also represented the co-defendant, who is Cadejuste’s brother, Gieuvious Cadejuste. MacRae filed a formal notice of appearance as the assigned Assistant Public Defender on May 18, 2004. One week later, the Public Defender’s office moved to withdraw due to a conflict in representing both Cadejuste and his co-defendant, because “their interests are so adverse and hostile” that the Public Defender could not represent both brothers. The trial court granted the motion and appointed other counsel to represent Cadejuste on May 28, 2004. MacRae continued to represent Cadejuste’s co-defendant through at least December 2004.
Eventually, MacRae left the Public Defender’s office and entered private practice. While in private practice, MacRae was appointed by the court to represent Cadejuste on September 22, 2006, after Cadejuste had been represented by several other counsel following MacRae’s initial representation. At a pre-trial hearing on January 12, 2007, Cadejuste objected to MacRae’s representation and informed the court of MacRae’s conflict of interest based on his prior representation of Cadejuste’s co-defendant. The court overruled Cadejuste’s objection and made no further inquiry.
At a subsequent hearing on Cadejuste’s motion to represent himself pro se, Cadejuste agreed to have the court strike his motion. and agreed to have MacRae represent him. The court again failed to explain the adverse consequences a conflict might pose and made no inquiry of Cadejuste.
LEGAL PRINCIPLES
*2  “An actual conflict of interest that adversely affects counsel’s performance violates the Sixth Amendment of the United States Constitution.”Larzelere v. State, 676 So.2d 394, 403 (Fla.1996). The assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.”Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Implicit in the Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).“An actual conflict of interest can impair the performance of a lawyer and ultimately result in a finding that the defendant did not receive the effective assistance of counsel.”Lee v. State, 690 So.2d 664, 667 (Fla. 1st DCA 1997); see Cuyler v. Sullivan, 446 U.S. 335, 345, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see also Holloway, 435 U.S. at 481, 98 S.Ct. 1173.When defense counsel discloses to the court that a conflict of interest exists, the court either must appoint separate counsel or “take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.”Holloway, 435 U.S. at 484, 98 S.Ct. 1173.
A defendant’s fundamental right to conflict-free counsel can be waived. Larzelere, 676 So.2d at 403.“For a waiver to be valid, the record must show that the defendant was aware of the conflict of interest that the defendant realized the conflict could affect the defense, and that the defendant knew of the right to obtain other counsel.”Id.; see United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir.1993), cert. denied,510 U.S. 901, 114 S.Ct. 275, 126 L.Ed.2d 226 (1993).“It is the trial court’s duty to ensure that a defendant fully understands the adverse consequences a conflict may impose.”Larzelere, 676 So.2d at 403;see Winokur v. State, 605 So.2d 100 (Fla. 4th DCA 1992), rev. den’d,617 So.2d 322 (Fla.1993).
DISCUSSION
In this case, the Public Defender’s office disclosed to the court that a conflict of interest existed when it initially represented Cadejuste and his co-defendant. The Office of the Public Defender of a given circuit is considered to be a “firm” for “purposes of construing the disciplinary rules governing conflicting interests of clients and imputed disqualification.”Toneatti v. State, 805 So.2d 112, 114 (Fla. 4th DCA 2002) (public defender’s joint representation of co-defendants raises a potential conflict which should have put the court on notice to conduct an inquiry into the conflict prior to trial to determine whether conflict-free counsel should have been appointed or to obtain a waiver from the parties). Based on the Public Defender’s disclosure, the court appointed other counsel to represent Cadejuste. In that instance, the court acted in accordance with Holloway.
However, when MacRae was appointed as a private attorney to represent Cadejuste for the second time and Cadejuste raised an objection based on a conflict of interest due to MacRae’s prior representation of the co-defendant, the court neither appointed new counsel nor made any inquiry as to the basis of the asserted conflict of interest or whether the conflict would impair Cadejuste’s right to the effective assistance of counsel. The court’s failure in this regard deprived Cadejuste of the guarantee of “assistance of counsel.”  See Holloway, 435 U.S. at 484, 98 S.Ct. 1173.Under Holloway, it is reversible error to require an attorney to represent co-defendants on the same case once the attorney tells the court of the actual or potential conflict between the co-defendants. Because Cadejuste’s own attorney told the court that it was an actual conflict to represent both co-defendants, MacRae’s subsequent representation of Cadejuste, in the absence of a valid waiver by Cadejuste, constitutes reversible error.
*3 Further, the trial court failed to ensure that Cadejuste understood the implications of proceeding with MacRae as his attorney and failed to secure a valid waiver from Cadejuste. The actual conflict without a waiver resulted in reversible error. See Delarosa v. State, 757 So.2d 1284 (Fla. 4th DCA 2000). The proceeding in which the court struck Cadejuste’s motion to represent himself pro se did not constitute a waiver of his right to conflict free counsel. In fact, the court did not mention or discuss a waiver of Cadejuste’s right to conflict free counsel. The court did not engage in a colloquy to explain what right was being waived nor did the court try to ascertain if Cadejuste fully understood the conflict; furthermore, the trial court never advised Cadejuste of his right to conflict free counsel and of the adverse consequences to his defense from being represented by counsel with an actual conflict. Since the trial court failed to make a sufficient inquiry concerning the identified conflict of interest of Cadejuste’s counsel in his representation of Cadejuste, reversal and remand for a new trial is required.Crockett v. State, 620 So.2d 1306 (Fla. 4th DCA 1993).
Cadejuste’s second argument on appeal is that his confession should have been suppressed because the Miranda warnings were deficient, the warnings were given “midstream” after a partial confession and the law enforcement officer exerted unlawful coercion in obtaining the confession. On remand, new counsel can re-visit the issues relating to the Miranda warnings addressed in such cases as Canete v. State, 921 So.2d 687 (Fla. 4th DCA 2006), Blake v. State, 972 So.2d 839 (Fla.2007) and Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).
Reversed and Remanded.

Posted in | No Comments »

Gordon v. State

Friday, November 21st, 2008

District Court of Appeal of Florida, First District.
Willie Frank GORDON, Appellant,
v.
STATE of Florida, Appellee.
No. 1D07-4136.
Nov. 21, 2008.
An appeal from the Circuit Court for Escambia County. Linda Nobles, Judge.
Nancy A. Daniels, Public Defender; and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General; and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
BROWNING, C.J.
*1 Willie Gordon (Appellant) appeals his convictions and sentences for trafficking in hydrocodone and misdemeanor possession of cannabis in Circuit Court Case No.2006-CF-6014, during the prosecution of which the trial court denied a motion to suppress incriminating evidence obtained during the search of probationer Appellant’s residence. The parties agree that the trial court correctly used the evidence in question as a basis to revoke Appellant’s probation in Circuit Court Case No.2006-CF-1221. However, as the State properly concedes, we are constrained to reverse the convictions and sentences in Circuit Court Case No.2006-CF-6014 and to remand to the trial court with instructions to discharge Appellant in that case.
Appellant was on probation in Circuit Court Case No.2006-CF-1221 on November 28, 2006, when several probation officers went to Appellant’s residence in response to an anonymous phone tip alleging a probation violation by Appellant: specifically, the presence of illegal drugs inside Appellant’s residence. Probation supervisor William Allen testified at the suppression hearing that probationers are routinely advised that by signing the probation order at the commencement of probation, they are consenting to searches of their residences and persons. See§ 948.03(1)(b), Fla. Stat. (2005) (including, among standard conditions that need not be orally pronounced at the revocation hearing, the requirement that the probationer permit probation supervisors to visit the probationer at the probationer’s home or elsewhere). Appellant does not suggest that the facts and law are otherwise. For security reasons and drug identification purposes, the probation officers were accompanied by deputies from the Escambia County Sheriff’s Office narcotics unit, who surrounded Appellant’s residence while the probation officers entered the residence. Once inside, the probation officers handcuffed Appellant and another probationer, Amanda Dobbins. Subsequently, the deputies entered the home and seized hydrocodone pills and marijuana. This appeal deals only with Appellant, who, pursuant to the search of the residence, was charged in Circuit Court Case No.2006-CF-6014 with trafficking in hydrocodone and with misdemeanor possession of cannabis.
Appellant moved to suppress this evidence in the prosecution of the new criminal offenses. The defense conceded that, given the express notice of the right to search that new probationers receive, the probation officers had a right both to enter and search probationer Appellant’s home without a warrant, probable cause, or a reasonable suspicion of illegal activity there, and to arrest him for violating a condition of probation. See United States v. Knights, 534 U.S. 112, 121 (2001); Soca v. State, 673 So.2d 24, 28 (Fla.1996); Grubbs v. State, 373 So.2d 905, 908-09 (Fla.1979); Bamberg v. State, 953 So.2d 649, 654 (Fla. 2d DCA 2007). The State correctly notes that Appellant did not present below, and thereby preserve, the specific argument that the probation officers lacked a reasonable suspicion of criminal activity or a warrant to support the search of the residence. See Reynolds v. State, 934 So.2d 1128, 1140 (Fla.2006).
*2 Instead, focusing on the deputies’ involvement in the probationary investigation, Appellant sought to suppress the evidence on the grounds that the only reason the deputies were at the scene was a report from an unnamed probation officer that an anonymous, unverified tipster had said drugs were in Appellant’s residence; that the deputies lacked any reasonable suspicion to believe that any illegal substances were in the home; and that the deputies had no right to enter and search Appellant’s home without a warrant. See Grubbs, 373 So.2d at 909;Bamberg, 953 So.2d at 649. The motion to suppress asserted that any information known to the deputies before entering Appellant’s home was provided by the probation officers. Appellant argued that to allow the deputies to bootstrap their entry and search of the home to the probation officers’ admittedly lawful entry and search would eviscerate Appellant’s Fourth-Amendment protection from unreasonable searches and seizures and would be contrary to the United States Supreme Court’s decision in Knights, 534 U.S. at 112, and to the Florida case law conforming to the decisions of the United States Supreme Court’s Fourth-Amendment jurisprudence pursuant to the “conformity clause” contained in article I, section 12 of the Florida Constitution. See State v. Butler, 655 So.2d 1123, 1125 (Fla.1995); Huffman v. State, 937 So.2d 202, 205 (Fla. 1st DCA 2006).
The trial court refused to suppress the evidence in the prosecution for the new offenses, apparently on the ground that the deputies’ participation in the search of the residence was less extensive than the probation officers’ involvement, and perhaps minimal. Appellant then entered a plea of no contest, was adjudicated guilty, and was sentenced to a 3-year minimum mandatory term of incarceration with a $50,000 fine for the more serious offense.
We review de novo whether the trial court correctly applied Fourth-Amendment law to the facts of this case. See United States v. Bajakajian, 524 U.S. 321, 336 n. 10 (1998); Ornelas v. United States, 517 U.S. 690, 696-99 (1996); Huffman, 937 So.2d at 206;Brye v. State, 927 So.2d 78, 80-81 (Fla. 1st DCA 2006).
The evidence recovered from the search of Appellant’s residence was properly admitted to determine whether Appellant violated his probation. See Knights, 534 U.S. at 118-20 (noting that the written probation condition allowing probationer Knights’ person, property, residence, vehicle, and personal effects to be searched anytime by any probation officer or law-enforcement officer, with or without a search warrant, arrest warrant, or reasonable cause, “significantly diminished Knights’ reasonable expectation of privacy”). The law permits deputies to accompany probation officers during a search in circumstances like the ones here, for “the Fourth Amendment does not require probation officers to choose between endangering themselves by searching alone and foregoing the search because they lacked the resources and expertise necessary to search alone safely.”United States v. Brown, 346 F.3d 808, 812 (8th Cir.2003); see State v. Yule, 905 So.2d 251, 255 (Fla. 2d DCA 2005).
*3 However, if contraband is discovered during the search by the probation officers, the deputies cannot use such evidence as a basis for a new law violation. See Soca, 673 So.2d at 28;Grubbs, 373 So.2d at 909. In Soca, the Supreme Court of Florida set out the reasonable options available to the State if it intends to use evidence obtained during a probationary investigatory search in a prosecution of new criminal charges:
The Grubbs rule gives the State considerable leeway in investigating and monitoring probationers. When the State believes that a probationer is engaged in criminal behavior, the State may choose to inform probation officials of his alleged criminal conduct and place further responsibility for investigating his conduct with those officials. Apprised of this information, the probation supervisor may exercise his or her authority to search the probationer’s person or residence for evidence that the probationer is violating the terms of his probation. Should the probation supervisor discover such evidence, it can be used against the probationer in a probation revocation proceeding.
On the other hand, the State may choose to continue its investigation and attempt to secure a warrant to search the probationer’s residence in compliance with the traditional search and seizure standards under article I, section 12, of the Florida Constitution. The State may also utilize the fact that the subject of its investigation is on probation as part of the circumstances establishing the probable cause necessary to secure a warrant.
673 So.2d at 28. Because the State complied with one of this second option in Lawson v. State, 751 So.2d 626, 627 (Fla. 4th DCA 1999), the evidence observed during a valid administrative search of a community controllee’s residence (which the State used to obtain a search warrant) and obtained pursuant to the warrant was legally seized and properly used to support a separate substantive charge. The State did not pursue any of this second option under Soca in Appellant’s case.
For these reasons, the State correctly concedes that the trial court misapplied the law in refusing to suppress the evidence seized as a result of the probationary search and allowing the contraband discovered during the search of the residence to be admitted into evidence in the prosecution of the new criminal charges against Appellant in Circuit Court Case No.2006-CF-6014. Unquestionably, Appellant’s probation was correctly revoked in Circuit Court Case No.2006-CF-1221. However, we are constrained to REVERSE Appellant’s convictions and sentences in Circuit Court Case No.2006-CF-6014 and REMAND with instructions to the trial court to discharge Appellant in that case.
BARFIELD and THOMAS, JJ., concur.

Posted in | No Comments »

Faires v. State

Friday, November 21st, 2008

District Court of Appeal of Florida, Fifth District.
David FAIRES, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-1794.
Nov. 21, 2008.
3.850 Appeal from the Circuit Court for Citrus County, Richard Howard, Judge.
Bernard F. Daley, Jr., Tallahassee, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
*1 After entering a no contest plea to ten counts of lewd and lascivious exhibition and one count of stalking, Faires was sentenced to ten years in prison followed by forty-five years sex offender probation. He subsequently filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, alleging that he would not have entered the plea but for his counsel’s assurance that he would not receive more than four years in prison. The trial court summarily denied Faires’ motion. No transcript of the plea colloquy was attached to the trial court’s order. We reverse.
The written plea form executed by Faires did not set forth any agreement regarding the sentence to be imposed. It did include a provision advising Faires of the maximum sentence for each charge against him. In summarily denying Faires’ motion, the trial court relied upon the following language found in the plea form:
I have not been promised any reward nor has it been suggested that I will be rewarded in any manner, or that I will be given any leniency, other than the terms set forth in this document, in return for my entering this plea. No person has used any threats, force, pressure or intimidation to induce me to make this plea. No promises concerning gain time or potential release dates have been made to me.
This language does not conclusively refute Faires’ claim. State v. Leroux, 689 So.2d 235 (Fla.1996) (general acknowledgment that defendant not promised anything to plead guilty fails to conclusively refute sworn allegation that defendant prompted to enter plea by attorney’s misrepresentation regarding length of sentence); see also Johnson v. State, 757 So.2d 586 (Fla. 2d DCA 2000). On remand, the trial court shall attach additional records conclusively refuting Faires’ claim or, in the alternative, conduct an evidentiary hearing.
REVERSED and REMANDED.

Posted in | No Comments »

Dallas v. State

Friday, November 21st, 2008

District Court of Appeal of Florida, Fifth District.
George DALLAS, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-1620.
Nov. 21, 2008.
Appeal from the Circuit Court for Orange County, Bob Leblanc, Judge.
James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
PLEUS, J.
*1 Police observed Dallas sell a piece of crack cocaine to a woman for $4. He fled with the cash but was eventually arrested and convicted of delivery of cocaine and unlawful transportation of currency. He appeals the latter conviction, arguing that the trial court should have granted his motion for judgment of acquittal because the State failed to present any evidence that he transported the cash with the intent to promote unlawful activity. We agree and therefore reverse that conviction.
Facts
Dallas was charged by information with delivery of cocaine within 1000 feet of a childcare facility and unlawful transportation of currency. At trial, Orange County Sheriff’s Deputy Andrew Williams testified that he saw Dallas and Karla Reed, both known to him, walking together on Ivy Lane. Upon reaching a bus stop, Dallas reached into his mouth, pinched a small item and placed it into Reed’s hand. Deputy Williams noted that drug dealers commonly hide crack cocaine in their mouths so they can swallow it if confronted by police. Reed then handed Dallas some rolled up dollar bills and crossed the street. Williams stopped Reed and observed crack cocaine in her hand. An FDLE analyst testified that the substance was in fact cocaine. As he was arresting Reed, Williams saw Dallas run away. Williams called additional units and Dallas was eventually arrested.
Dallas moved for judgment of acquittal on the unlawful transportation of currency count, arguing that the State failed to present any evidence that he had transported currency with unlawful intent. The trial court denied the motion on the ground that the officer’s experience in drug transactions was sufficient to allow the charge to go to the jury.FN1The jury found Dallas guilty of delivery of cocaine and unlawful transportation of currency. He was sentenced to four years in prison on each count, running concurrently. Dallas timely appealed.
FN1. The trial court also denied judgment of acquittal as to delivery of cocaine but granted it as to the element of being within 1000 feet of a childcare facility.
Analysis
Dallas was charged with violating section 896.101(3)(b)1., Florida Statutes (2007), which makes it unlawful for a person to “transport or attempt to transport a monetary instrument or funds with the intent to promote the carrying on of specified unlawful activity.”A “specified unlawful activity” means any crime specified in the RICO statute, including drug offenses in Chapter 893. The State’s theory at trial and on appeal is that in fleeing from police, Dallas transported $4 in currency with the intent to promote the delivery of cocaine that he had just committed. Dallas argues that the statute does not encompass an intent to promote a crime that has already been committed.
In Harper v. State, 567 So.2d 28 (Fla. 5th DCA 1990), the defendant carried cash to purchase drugs from an undercover police officer. We rejected the defendant’s claim that his convictions for unlawful purchase of a controlled substance and unlawfully transporting funds with intent to promote a specified unlawful activity violated double jeopardy. We reasoned that the two offenses had different elements, were based on different acts, and were aimed at different evils. Dallas argues that Harper exemplifies the type of conduct prohibited under the statute: transporting money to commit a future crime.
*2 The State argues that because no Florida case has addressed the issue of whether the statute includes transporting money to promote past crimes, this Court should look to federal cases dealing with that issue under the federal money laundering statute, from which the Florida statute was adopted. Specifically, the State cites three federal cases holding that Title 18 United States Code, Section 1956, encompasses the act of accepting and negotiating or depositing a check derived from the proceeds of illegal activity. United States v. Valuck, 286 F.3d 221, 227 (5th Cir.2002); United States v. Bencs, 28 F.3d 555, 562 (6th Cir.1994); United States v. Paramo, 998 F.2d 1212, 1218 (3d Cir.1993). For example, in Paramo, the court rejected the defendant’s argument that one cannot promote an already completed illegal activity. It noted that the definition of “promote”-to contribute to an activity’s growth or prosperity-includes not only ongoing and future activity but also prior activity. Based on this reasoning, the court upheld the defendant’s money laundering convictions for cashing checks from the proceeds of past mail fraud because such actions created value out of an otherwise unremunerative enterprise. 998 F.2d at 1218.
In reply, Dallas points out two problems with the State’s reliance on these federal cases. First, he correctly notes that federal law is in conflict on this issue. Not all federal circuits adhere to the position that the federal money laundering statute criminalizes transactions that promote prior criminal activity. In fact, the court in Valuck noted this split of authority, acknowledging the following cases taking a contrary position:
United States v. Jolivet, 224 F.3d 902, 909 (8th Cir.2000) (reversing promotion conviction because subsequent activity cannot “promote the carrying on of an already completed crime”), and United States v. Heaps, 39 F.3d 479, 486 (4th Cir.1994) (expressly rejecting broad statutory interpretation employed by Third and Ninth Circuits as inconsistent with congressional intent).Cf. United States v. Calderon, 169 F.3d 718, 722 (11th Cir.1999) (questioning whether the decisions of the Third, Sixth, and Ninth Circuits “were rightly decided,” but not deciding the issue).
286 F.3d at 227 n. 5. For example, in Heaps, abrogated on other grounds, United States v. Villarini, 238 F.3d 530 (4th Cir.2001), the defendant’s wife received payment via Western Union for illegal drugs sold by the defendant. She took the money home and placed it in a box. The defendant was convicted of selling drugs but the appellate court reversed his conviction for money laundering, stating:
Were the payment for drugs itself held to be a transaction that promoted the unlawful activity of that same transaction virtually every sale of drugs would be an automatic money laundering violation as soon as money changed hands. Understood this way, § 1956 would have such reach that it would criminalize the very same conduct already criminalized by the drug laws.
*3  ….
To the extent that our holding conflicts with holdings by the Third and Ninth Circuits … we must respectfully disagree that the mere receipt of a money transfer and the subsequent placement of case in a box can, of itself, constitute money laundering under the statute.
Id. at 485-86.In United States v. Edgmon, 952 F.2d 1206, 1213-14 (10th Cir.1991), cert. denied,505 U.S. 1223 (1992), the court discussed Congress’ intent in creating the money laundering statute, as follows:
Like the continuing criminal enterprise statute … Congress appears to have intended the money laundering statute to be a separate crime distinct from the underlying offense that generated the money to be laundered…. Congress aimed the crime of money laundering at conduct that follows in time the underlying crime rather than to afford an alternative means of punishing the prior “specified unlawful activity.”
The other problem Dallas notes with the State’s cases is that they all discuss the “financial transaction” subsection of the federal statute, not the “transportation” subsection analogous to the Florida Statute with which Dallas was charged. This distinction is questionable in light of the fact that both sections of the federal statute, whether conducting a financial transaction or merely transporting money, require an “intent to promote the carrying on of a specified unlawful activity.”Presumably, that phrase has the same interpretation in each section, and therefore, the State’s reliance on federal “financial transaction” cases interpreting the promotion issue would be persuasive in the transportation context. See United States v. Bohn, 208 WL 2332226 (6th Cir.2008) (rejecting Heaps and applying the Paramo rationale in the “transportation” context); United States v. Piervinanzi, 23 F.3d 670 (2d Cir.1994) (same).
To resolve this case, we do not find it necessary to adopt either of the conflicting rationales presented on the federal cases. Whether the Florida statute encompasses an intent to promote past as well as future illegal activity, the scant evidence presented in this case was insufficient to prove either. Dallas sold a piece of cocaine, put the cash in his pocket and ran. He was later caught. The State urges us to conclude that Dallas’ act of running away with the money to avoid being caught created a reasonable inference that he intended to promote the just-completed crime and to promote future drug selling. We cannot. Unlike the defendants in the cases cited by the State, Dallas did not have to cash a check or take any other action to realize a benefit. Thus, his act of running with the cash did not create an inference that he intended to promote past criminal activity because that activity was complete. Likewise, it did not create an inference that he intended to use the cash to promote future drug sales. Based on the evidence presented, such an inference would be based on pure speculation.
*4 Accordingly, we affirm Dallas’ conviction for delivery of cocaine but reverse his conviction for unlawful transportation of currency.
AFFIRMED IN PART; REVERSED IN PART.

Posted in | No Comments »

« Older Entries
Newer Entries »