Florida Criminal Law Opinions

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE.No. SC08-1834.

Supreme Court of Florida.

November 20, 2008.

Original Proceeding — Florida Rules of Criminal Procedure

Judge Thomas H. Bateman, III, Chair, Florida Criminal Procedure Rules Committee, Second Judicial Circuit, Quincy, Florida, John F. Harkness, Jr., Executive Director, and Jodi Jennings, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner.

PER CURIAM.

The Florida Bar’s Criminal Procedure Rules Committee (Committee) has filed an out-of-cycle report proposing amendments to the Florida Rules of Criminal Procedure to conform the rules to 2008 legislation.¹ We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).

The Committee proposes amendments to rules 3.704 (Criminal Punishment Code) and 3.986 (Forms Related to Judgment and Sentence) in response to recent legislation that became effective October 1, 2008. See ch. 2008-238, §§ 8, 21-22, 26, 35, Laws of Fla. The Executive Committee of the Florida Bar Board of Governors unanimously approved the proposals. After considering the Committee’s proposals and reviewing the relevant legislation, we amend the rules as proposed by the Committee.

The amendment to rule 3.704(d)(22) changes the term “criminal street gang” to “criminal gang.” The change is in response to chapter 2008-238, Laws of Florida, section 8 (amending section 874.04, Florida Statutes, to replace the term “criminal street gang activity” with “gang-related offenses,” and to change the term “criminal street gang” to “criminal gang”) and section 26 (amending section 921.0024(1)(a), Florida Statutes, to change the term “criminal street gang offense” to “criminal gang offense”). This change is consistent with the recent amendment to rule 3.992(a), Criminal Punishment Code Scoresheet, made in In re Amendments to Florida Rule of Criminal Procedure 3.992(a)—Criminal Punishment Code Scoresheet, 33 Fla. L. Weekly S758 (Fla. Sept. 25, 2008). An editorial change to correct the spelling of the word “benefiting” also is made to the subdivision.

The amendment to rule 3.986(d), Form for Sentencing, adds a provision for felony convictions for an offense that is found, pursuant to section 874.04, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. The amendments to rules 3.986(e), Form for Order of Probation, and 3.986(f), Form for Community Control, add special conditions prohibiting association with criminal gang members. The changes are made in response to chapter 2008-238, Laws of Florida, section 21 (creating section 948.033, Florida Statutes, to prohibit persons convicted of criminal gang offenses from associating with other criminal gang members during community control or probation) and section 22 (amending section 947.18, Florida Statutes, to prohibit persons convicted of criminal gang offenses from associating with other criminal gang members during parole).

Accordingly, we amend the Rules of Criminal Procedure as reflected in the appendix to this opinion. New language is underscored, and deleted language is struck through. These amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.²

It is so ordered.

QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, LEWIS, CANADY, and POLSTON, JJ., concur.

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

APPENDIXRULE 3.704. THE CRIMINAL PUNISHMENT CODE

(a)-(c) (No Change)

(d) General Rules and Definitions.

(1)-(21) (No Change)

(22) If the offender is found to have committed the offense for the purpose of benefitting, promoting, or furthering the interests of a criminal street gang under section 874.04, Florida Statutes, at the time of the commission of the primary offense, the subtotal sentence points are multiplied by 1.5.

(23)-(28) (No Change)

Committee Note (No Change)RULE 3.986. FORMS RELATED TO JUDGMENT AND SENTENCE

(a)-(c) (No Change)

(d) Form for Sentencing.

Defendant _______  Case Number _______________  OBTS Number ________

SENTENCE (As to Count)The defendant, being personally before this court, accompanied by the defendant’s attorney of record, _____, and having been adjudicated guilty herein, and the court having given the defendant an opportunity to be heard and to offer matters in mitigation of sentence, and to show cause why the defendant should not be sentenced as provided by law, and no cause being shown,

(Check one if applicable)

___ and the court having on …..(date)….. deferred imposition of sentence until this date

___ and the court having previously entered a judgment in this case on …..(date)….. now resentences the defendant

___ and the court having placed the defendant on probation/community control and having subsequently revoked the defendant’s probation/community control

It Is The Sentence Of The Court That:

___ The defendant pay a fine of $ ____, pursuant to section 775.083, Florida Statutes, plus $____ as the 5% surcharge required by section 960.25, Florida Statutes.

___ The defendant is hereby committed to the custody of the Department of Corrections.

___ The defendant is hereby committed to the custody of the Sheriff of ____ County, Florida.

___ The defendant is sentenced as a youthful offender in accordance with section 958.04, Florida Statutes.

To Be Imprisoned (check one; unmarked sections are inapplicable):

___ For a term of natural life.

___ For a term of _______.

___ Said SENTENCE SUSPENDED for a period of ___ subject to conditions set forth in this order.

If “split” sentence complete the appropriate paragraph

___ Followed by a period of ____ on probation/community control under the supervision of the Department of Corrections according to the terms and conditions of supervision set forth in a separate order entered herein.

___ However, after serving a period of ____ imprisonment in ____ the balance of the sentence shall be suspended and the defendant shall be placed on probation/community control for a period of ____ under supervision of the Department of Corrections according to the terms and conditions of probation/community control set forth in a separate order entered herein.

In the event the defendant is ordered to serve additional split sentences, all incarceration portions shall be satisfied before the defendant begins service of the supervision terms.

SPECIAL PROVISIONS (As to Count ___)By appropriate notation, the following provisions apply to the sentence imposed:

Mandatory/Minimum Provisions:

Firearm

___ It is further ordered that the 3-year minimum imprisonment provision of section 775.087(2), Florida Statutes, is hereby imposed for the sentence specified in this count.

Drug Trafficking

___ It is further ordered that the mandatory minimum imprisonment provision of section 893.135(1), Florida Statutes, is hereby imposed for the sentence specified in this count.

Controlled Substance Within 1,000 Feet of School

___ It is further ordered that the 3-year minimum imprisonment provision of section 893.13(1)(e)1, Florida Statutes, is hereby imposed for the sentence specified in this count.

Habitual Felony Offender

___ The defendant is adjudicated a habitual felony offender and has been sentenced to an extended term in accordance with the provisions of section 775.084(4)(a), Florida Statutes. The requisite findings by the court are set forth in a separate order or stated on the record in open court.

Habitual Violent Felony Offender

___ The defendant is adjudicated a habitual violent felony offender and has been sentenced to an extended term in accordance with the provisions of section 775.084(4)(b), Florida Statutes. A minimum term of year(s) must be served prior to release. The requisite findings of the court are set forth in a separate order or stated on the record in open court.

Law Enforcement Protection Act

___ It is further ordered that the defendant shall serve a minimum of years before release in accordance with section 775.0823, Florida Statutes.

Capital Offense

___ It is further ordered that the defendant shall serve no less than 25 years in accordance with the provisions of section 775.082(1), Florida Statutes.

Short-Barreled Rifle, Shotgun, Machine Gun

___ It is further ordered that the 5-year minimum provisions of section 790.221(2), Florida Statutes, are hereby imposed for the sentence specified in this count.

Continuing Criminal Enterprise

___ It is further ordered that the 25-year minimum sentence provisions of section 893.20, Florida Statutes, are hereby imposed for the sentence specified in this count.

Taking a Law Enforcement Officer’s Firearm

___ It is further ordered that the 3-year mandatory minimum imprisonment provision of section 775.0857(1), Florida Statutes, is hereby imposed for the sentence specified in this count.

Other Provisions:

Criminal Gang Activity

___ The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.

Retention of Jurisdiction

___ The court retains jurisdiction over the defendant pursuant to section 947.16(3), Florida Statutes (1983).

Jail Credit

___ It is further ordered that the defendant shall be allowed a total of days as credit for time incarcerated before imposition of this sentence.

CREDIT FOR TIME SERVED IN RESENTENCING AFTER VIOLATION OF PROBATION OR COMMUNITY CONTROL

___ It is further ordered that the defendant be allowed ____ days time served between date of arrest as a violator following release from prison to the date of resentencing. The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served and unforfeited gain time previously awarded on case/count. ____ (Offenses committed before October 1, 1989)

___ It is further ordered that the defendant be allowed days time served between date of arrest as a violator following release from prison to the date of resentencing. The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served on case/count. (Offenses committed between October 1, 1989, and December 31, 1993)

___ The Court deems the unforfeited gain time previously awarded on the above case/count forfeited under section 948.06(6).

___ The Court allows unforfeited gain time previously awarded on the above case/count. (Gain time may be subject to forfeiture by the Department of Corrections under section 944.28(1)).

___ It is further ordered that the defendant be allowed days time served between date of arrest as a violator following release from prison to the date of resentencing. The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served only pursuant to section 921.0017, Florida Statutes, on case/count. (Offenses committed on or after January 1, 1994)

Consecutive/Concurrent as to Other Counts

It is further ordered that the sentence imposed for this count shall run (check one) ___ consecutive to ___ concurrent with the sentence set forth in count of this case.

Consecutive/Concurrent as to Other Convictions

It is further ordered that the composite term of all sentences imposed for the counts specified in this order shall run (check one) ___ consecutive to ___ concurrent with (check one) the following:

___    any active sentence being served.
___    specific sentences: _____________________
_________________________________________
_________________________________________

In the event the above sentence is to the Department of Corrections, the Sheriff of ____ County, Florida, is hereby ordered and directed to deliver the defendant to the Department of Corrections at the facility designated by the department together with a copy of this judgment and sentence and any other documents specified by Florida Statute.

The defendant in open court was advised of the right to appeal from this sentence by filing notice of appeal within 30 days from this date with the clerk of this court and the defendant’s right to the assistance of counsel in taking the appeal at the expense of the state on showing of indigency.

In imposing the above sentence, the court further recommends ________ __________________________________________________________________________ __________________________________________________________________________.

DONE AND ORDERED in open court at County, Florida, on …..(date)……

______________
Judge

(e) Form for Order of Probation.

In the ____  Court
of______  County, Florida
Case Number ________________

State of Florida

v.
______________
Defendant

ORDER OF PROBATIONThis cause coming on this day to be heard before me, and you, the defendant________, being now present before me, and you having

(check one) ___ entered a plea of guilty to

___ entered a plea of nolo contendere to

___ been found guilty by jury verdict of

___ been found guilty by the court trying the case without a jury of the offense(s) of

SECTION 1: Judgment Of Guilt

___ The Court hereby adjudges you to be guilty of the above offense(s).

Now, therefore, it is ordered and adjudged that the imposition of sentence is hereby withheld and that you be placed on probation for a period of _____ under the supervision of the Department of Corrections, subject to Florida law.

SECTION 2: Order Withholding Adjudication

___ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on probation for a period of ____ under the supervision of the Department of Corrections, subject to Florida law.

SECTION 3: Probation During Portion Of Sentence

It is hereby ordered and adjudged that you be

___ committed to the Department of Corrections

___ confined in the County Jail

for a term of ____ with credit for ____ jail time. After you have served of the term you shall be placed on probation for a period of ____ under the supervision of the Department of Corrections, subject to Florida law.

___ confined in the County Jail for a term of ____ with credit for ____ jail time, as a special condition of probation.

It is further ordered that you shall comply with the following conditions of probation during the probationary period.

(1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose.

(2) You will pay the State of Florida the amount of $____ per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.

(3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer.

(4) You will not possess, carry, or own any firearm. You will not possess, carry, or own any weapons without first procuring the consent of your officer.

(5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your probation.

(6) You will not associate with any person engaged in any criminal activity.

(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.

(8) You will work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer.

(9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site, or elsewhere, and you will comply with all instructions your officer may give you.

(10) You will pay restitution, costs, and/or fees in accordance with the attached orders.

(11) You will report in person within 72 hours of your release from confinement to the probation office in ____ County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at _____.

SPECIAL CONDITIONS___ You must undergo a (drug/alcohol) evaluation and, if treatment is deemed necessary, you must successfully complete the treatment.

___ You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer.

___ You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.

___ You will not associate with during the period of probation.

___ You will not associate with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity.

___ You will not contact during the period of probation.

___ You will attend and successfully complete an approved batterers’ intervention program.

___ Other _____________________________________________________________ _________________________________________________________________________

(Use the space below for additional conditions as necessary.)

You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your probation, or may extend the period of probation as authorized by law, or may discharge you from further supervision. If you violate any of the conditions of your probation, you may be arrested and the court may revoke your probation, adjudicate you guilty if adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require you to serve the balance of the sentence.

It is further ordered that when you have been instructed as to the conditions of probation, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.)

It is further ordered that the clerk of this court file this order in the clerk’s office and provide certified copies of same to the officer for use in compliance with the requirements of law.

DONE AND ORDERED, on …..(date)……

_____________
Judge

I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them.

.....(date).....                     Probationer __________________
Instructed by _______________

Original: Clerk of the Court
Certified Copies: Probationer
Florida Department of Corrections,
Probation and Parole Services

(f) Form for Community Control.

In the ____  Court
of ________  County, Florida
Case Number _______________

State of Florida

v.
_______________
Defendant

ORDER OF COMMUNITY CONTROLThis cause coming on this day to be heard before me, and you, the defendant,, being now present before me, and you having

(check one)

___ entered a plea of guilty to

___ entered a plea of nolo contendere to

___ been found guilty by jury verdict of

___ been found guilty by the court trying the case without a jury of the offense(s) of_____ _____________________________________________________________________ ______________________________________________________________________

SECTION 1: Judgment Of Guilt

___ The court hereby adjudges you to be guilty of the above offense(s).

Now, therefore, it is ordered and adjudged that you be placed on community control for a period of under the supervision of the Department of Corrections, subject to Florida law.

SECTION 2: Order Withholding Adjudication

___ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on Community Control for a period of under the supervision of the Department of Corrections, subject to Florida law.

SECTION 3: Community Control During Portion Of Sentence

It is hereby ordered and adjudged that you be

___ committed to the Department of Corrections

___ confined in the County Jail

for a term of ____ with credit for ____ jail time. After you have served ____ of the term, you shall be placed on community control for a period of ____ under the supervision of the Department of Corrections, subject to Florida law.

___ confined in the County Jail

for a term of ___ with credit for ___ jail time, as a special condition of community control.

It is further ordered that you shall comply with the following conditions of community control during the community control period.

(1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose.

(2) You will pay the State of Florida the amount of $ per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.

(3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer.

(4) You will not possess, carry, or own any firearm. You will not possess, carry, or own other weapons without first procuring the consent of your officer.

(5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your community control.

(6) You will not associate with any person engaged in any criminal activity.

(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.

(8) You will work diligently at a lawful occupation, advise your employer of your community control status, and support any dependents to the best of your ability as directed by your officer.

(9) You will promptly and truthfully answer all inquiries directed to you by the court or your officer and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.

(10) You will report to your officer at least 4 times a week, or, if unemployed full time, daily.

(11) You will perform ____ hours of public service work as directed by your officer.

(12) You will remain confined to your approved residence except for one half hour before and after your approved employment, public service work, or any other special activities approved by your officer.

(13) You will pay restitution, costs, and/or fees in accordance with the attached orders.

(14) You will report in person within 72 hours of your release from confinement to the probation office in ____ County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at ____.

SPECIAL CONDITIONS___ You must undergo a (drug/alcohol) evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.

___ You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.

___ You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer.

___ You will not associate with ____ during the period of community control.

___ You will not associate with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity.

___ You will not contact ____ during the period of community control.

___ You will maintain an hourly accounting of all your activities on a daily log which you will submit to your officer on request.

___ You will participate in self-improvement programs as determined by the court or your officer.

___ You will submit to electronic monitoring of your whereabouts as required by the Florida Department of Corrections.

___ You will attend and successfully complete an approved batterers’ intervention program.

___ Other _____________________________________________________________ _________________________________________________________________________

(Use the space below for additional conditions as necessary.)

You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your community control, or may extend the period of community control as authorized by law, or may discharge you from further supervision or return you to a program of regular probation supervision. If you violate any of the conditions and sanctions of your community control, you may be arrested, and the court may adjudicate you guilty if adjudication of guilt was withheld, revoke your community control, and impose any sentence that it might have imposed before placing you on community control.

It is further ordered that when you have reported to your officer and have been instructed as to the conditions of community control, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.)

It is further ordered that the clerk of this court file this order in the clerk’s office, and forthwith provide certified copies of same to the officer for use in compliance with the requirements of law.

DONE AND ORDERED, on …..(date)……

___________________
Judge

I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them.

…..(date)….. Community controller _____________________

Instructed by _____________________

Original: Clerk of the Court
Certified Copies: Community Controlee
Florida Department of Corrections,
Probation and Parole Services

(g) (No Change)

Committee Note (No Change)—————

Notes:

1. The Committee also submitted proposed amendments to rule 3.130 (First Appearance). Those proposals, which are not based on new legislation, have been severed from this case and will be considered in a separate case, In re Amendments to Florida Rule of Criminal Procedure 3.130, No. SC08-1934 (Fla. petition filed Sept. 29, 2008).

2. An original and nine paper copies of all comments must be filed with the Court on or before January 19, 2009, with a certificate of service verifying that a copy has been served on the committee chair, Honorable Thomas H. Bateman, III, Gadsden County Courthouse, 24 North Adams Street, Quincy, Florida 32354, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until February 9, 2009, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

—————

Courtesy of David Edelstein

RANDALL SCOTT FORD, Appellant,
v.
STATE OF FLORIDA, Appellee.No. 4D08-482

District Court of Appeal of Florida, Fourth District.

November 19, 2008.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County, Sherwood Bauer, Judge, L.T. Case No. 472003CF000013A.

Randall Scott Ford, Immokalee, pro se.

No brief filed for appellee.

FARMER, J.

Defendant appeals a denial of postconviction relief, claiming that the trial court lacked jurisdiction to revoke probation and sentence him for a probation violation.¹ A few weeks before his period of probation would have ended, the State filed an affidavit of violation of probation (VOP). The State alleged that he had committed a sexual battery in Okeechobee County. More than two months after the period of his probation had actually ended, the State filed an amended VOP adding an unrelated new count of committing sexual battery in Highlands County.

At a hearing several months after that, the State presented evidence supporting the VOP offense in Highlands County but failed to present any evidence on the first offense in Okeechobee County initially alleged during the probationary period. The court revoked probation on the Highlands County violation and sentenced him to 60 months in prison. He did not appeal the revocation.

Instead he filed the present motion under rule 3.850. He argues that the probationary period was not tolled and consequently the trial court lacked jurisdiction to revoke probation after the period expired. This issue may be raised for the first time in this postconviction proceeding because the lack of subject matter jurisdiction is fundamental error that can be raised at any time. Clark v. State, 402 So.2d 43 (Fla. 4th DCA 1981).

It is well settled that after a term of probation has expired, a court has no jurisdiction to entertain a VOP based on offenses occurring during the probation period unless the State issued an arrest warrant for the VOP before expiration. Stambaugh v. State, 891 So.2d 1136, 1139 (Fla. 4th DCA 2005). Here no warrant was ever issued on the alleged Okeechobee County violation, and therefore defendant’s probationary period was not tolled.² See Jean-Gilles v. State, 921 So.2d 860 (Fla. 4th DCA 2006) (saying that § 948.06(1)(d) clearly requires both filing of affidavit and issuance of arrest warrant before probationary term expires); Stambaugh, 891 So.2d at 1137 (holding that the filing of affidavit without issuing arrest warrant does not toll period and trial court lacked jurisdiction to hear VOP after probationary period had expired). Additionally, the probationary period expired before the State filed the amended VOP. The trial court also lacked jurisdiction to entertain the amended VOP on the Highland County charge.

The motion states a facially sufficient claim for relief under rule 3.850. We remand to the trial court for consistent proceedings.

Reversed.

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

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. Defendant filed two motions including 20 claims of error. The trial court considered the two motions together and summarily denied relief as to 19 claims, including the claim discussed here. The trial court granted a hearing as to the remaining issue and ultimately denied relief as to that claim as well.

2. Defendant’s probation was revoked before the 2007 amendment to § 948.06.

—————

Courtesy of David Edelstein

ANGEL MONTERO, Appellant,
v.
STATE OF FLORIDA, Appellee.No. 4D08-3828

District Court of Appeal of Florida, Fourth District.

November 19, 2008.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Paul L. Backman, Judge, L.T. Case Nos. 04-000760 CF10A, 05-001876 CF10A.

Angel Montero, Indiantown, pro se.

No appearance required for appellee.

PER CURIAM.

We affirm the trial court’s summary denial of appellant’s Florida Rule of Criminal Procedure 3.850 motion but for reasons other than those given by the state’s response which was adopted by the trial court in its order of denial.

Appellant entered a negotiated guilty plea in the two cases at issue to charges of burglary and dealing in stolen property. Appellant, who was facing a maximum sentence of 131 years in prison as a habitual felony offender (HFO), received concurrent HFO sentences of 15 years and one day in prison on each of the second degree felony charges with a 15-year mandatory minimum sentence as a prison releasee reoffender.

In his postconviction motion, appellant alleged that counsel was ineffective in failing to advise him that he had available an involuntary intoxication defense. Appellant alleged that, at the time of the offenses, he was under the influence of hydrocodone (Lorcet) and alprazolam (Xanax). He argued that because he had a prescription for these medications, a n involuntary intoxication defense was available. Additionally, he argued that counsel should have investigated the doctor that had prescribed him these drugs and appellant’s prior brain injury and surgery.

The state’s response below argued that appellant waived these claims by entering his plea. The trial court adopted and attached the state’s response to its order of denial.

A postconviction movant is prohibited from going behind a plea to raise issues that were known at the time the plea was entered. Stano v. State, 520 So. 2d 278 (Fla. 1988); Gidney v. State, 925 So. 2d 1076 (Fla. 4th DCA 2006). Nevertheless, the claim in this motion was that counsel failed to advise the movant of a potential defense and, as a result, the plea was not knowingly and voluntarily entered. A defendant’s guilty plea does not waive claims of ineffective assistance of counsel regarding unknown defenses about which the defendant was not advised. Petruny v. State, 958 So. 2d 612, 613 (Fla. 4th DCA 2007); Rouzard v. State, 952 So. 2d 1290, 1292 (Fla. 4th DCA 2007).

We nevertheless affirm the summary denial of this claim because it is facially insufficient and cannot reasonably be amended in good faith to state a sufficient claim. See Spera v. State, 971 So. 2d 754, 762 (Fla. 2007) (permitting postconviction movants to amend claims “only if they can be amended in good faith”).

Section 775.051, Florida Statutes (1999), abolished the voluntary intoxication defense for offenses committed after July 1, 1999. This statute contains an exception that applies “when the consumption, injection, or use of a controlled substance under chapter 893 was pursuant to a lawful prescription issued to the defendant by a practitioner as defined in s. 893.02.” Id.

The statute’s exception is essentially a codification of the involuntary intoxication defense previously acknowledged by this court. See Lucherini v. State, 932 So. 2d 521, 522 n.1 (Fla. 4th DCA 2006). This exception applies where the defendant unexpectedly becomes intoxicated by prescribed medication that is taken in a lawful manner. Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997). A claim of this type of involuntary intoxication, i.e., a claim under the statutory exception, does not apply where the defendant abuses the prescribed medication by exceeding the prescribed dosage. Cobb v. State, 884 So. 2d 437 (Fla. 1st DCA 2004).

Appellant did not allege that he took the hydrocodone and alprazolam in the prescribed dosage, or that h e advised counsel that he unexpectedly became intoxicated as a result of taking his lawful prescription. Hydrocodone and alprazolam are two widely-abused prescription drugs that have well-known intoxicating effects. Appellant has a history of drug possession and sale offenses. The suggestion that appellant unexpectedly became intoxicated after taking the prescribed dose of these drugs, and that the intoxication prevented him from forming the specific intent for the offenses, is unreasonable.

The factual basis for the plea shows that appellant forcefully broke into the victim’s home, stole about $6000 worth of property, and subsequently pawned some of that property. While pawning the property, appellant signed pawn slips, providing his fingerprints and identification. He pawned some of the stolen items on the same day as the burglary, and pawned more of the stolen items seven days later. Appellant, however, fails to explain how his alleged intoxication prevented him from forming the specific intent to commit these offenses. Appellant also fails to establish a prima facie case that counsel performed deficiently in failing to advise him about an involuntary intoxication defense.

The general rule is that a defendant’s allegations in a rule 3.850 motion must be accepted as true, and that an evidentiary hearing is required if the allegations are not conclusively refuted by the record. An exception exists, however, where the allegations are “inherently incredible.” Evans v. State, 843 So. 2d 938, 940 (Fla. 3d DCA 2003) (finding that a defendant’s claim that he would not have entered his plea was “so thoroughly contrary to common sense as to b e inherently incredible, and does not warrant a hearing”).

In this case, appellant’s suggestion that he would not have entered his plea if counsel had advised him of the purported defense is inherently unbelievable and contrary to common sense. See, e.g., Grosvenor v. State, 874 So. 2d 1176, 1181 (Fla. 2004) (explaining that the merit of any potential defense is relevant to the credibility of defendant’s assertion that he would have insisted on going to trial). Here, the glaring lack of merit in appellant’s alleged defense, coupled with the substantial benefit appellant received pursuant to the plea, renders his claim inherently unreasonable and not subject to amendment “in good faith.” To establish a valid claim in this case, appellant would have to establish a “reasonable probability” that, but for counsel’s deficient performance, he would not have entered the plea and would have insisted on going to trial. Id. (citing Hill v. Lockhart, 474 U.S. 52 (1985)). Under the circumstances of this case, appellant cannot meet the prejudice standard even if permitted to amend his claim.

Furthermore, we find that trial counsel did not perform deficiently. Reasonably competent counsel would not have advised a defendant that involuntary intoxication was a defense under these circumstances. Under the standard announced Strickland v. Washington, 466 U.S. 668 (1984), reasonably competent counsel is not required to advise a defendant contemplating entry of a plea of every conceivable defense that might apply in a case. Appellant did not show that an involuntary intoxication defense was reasonably viable under the facts of this case and, as a result, cannot show that counsel failed to perform at the level required by the Constitution.

Appellant also claimed that his plea was involuntary because he was under the effect of psychotropic medication when he entered into it. Appellant, however, was specifically questioned on the record regarding the Trazodone that he had taken to treat his depression and the medication he had taken for his high blood pressure. He testified under oath that these medications were not affecting his ability to understand the proceedings. He answered all questions during the plea hearing appropriately, and independently asked questions of the court that demonstrated his understanding of the proceedings. He cannot go behind his sworn assertions and challenge the voluntariness of his plea. Iacono v. State, 930 So. 2d 829 (Fla. 4th DCA 2006); Russ v. State, 937 So. 2d 1199 (Fla. 1st DCA 2006); Kirby v. State, 733 So. 2d 1054 (Fla. 1st DCA 1999). The record conclusively refutes his allegations that he was not mentally competent to enter a plea.

Finally, appellant filed a supplemental motion, arguing that the records introduced to prove his qualification for enhanced sentencing were insufficient. This claim was shown by the state’s response below to be without merit, and appellant has abandoned this claim in this appeal by failing to present any argument on the issue in his initial brief. Shere v. State, 742 So. 2d 215, 217 n.6 (Fla. 1999).

Affirmed.

GROSS, TAYLOR and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

FRANCISCO J. SALAZAR, Appellant,
v.
STATE OF FLORIDA, Appellee.No. 4D08-3664.

District Court of Appeal of Florida, Fourth District.

November 19, 2008.

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michelle Towbin Singer, Judge, L.T. Case No. 08-1084 CF10A.

Francisco J. Salazar, Milton, pro se.

No appearance required for appellee.

PER CURIAM.

Francisco J. Salazar (Defendant) appeals the summary denial of his motion, in which he asked the trial court which sentenced him to order the Department of Corrections to award him 145 days of jail time credit, the amount of credit he received on his three violation of probation cases, also against his 2008 case. He was sentenced concurrently in February 2008 for all four cases, but complained that the department had credited him with only 41 days for the 2008 case, and did not credit him with the 145 days credit he was awarded in connection with the three 2006 cases. We affirm.

Technically, the trial court should not have addressed the merits of the motion, but should have dismissed it. Defendant’s proper vehicle for challenging the department’s failure to credit him with the proper amount of jail time credit was first to exhaust his administrative remedies with the department, and then, if unsuccessful, to seek extraordinary relief from the Leon County circuit court. See Bush v. State, 945 So. 2d 1207, 1213-14 (Fla. 2006) (holding the department is entitled to litigate in the circuit court in Leon County, where its central office is located); Grace v. State, 920 So. 2d 719 (Fla. 4th DCA 2006).

In denying the motion, the trial court correctly explained to Defendant that he was not entitled to the same number of days of credit for each case with concurrent sentences which bear different arrest dates; instead, when a defendant receives concurrent sentences for different cases, the defendant is entitled to credit against each sentence only for the time spent in jail for the charge resulting in that sentence. E.g., James v. State, 721 So. 2d 1265, 1266 (Fla. 3d DCA 1998); Walker v. State, 579 So. 2d 348 (Fla. 1st DCA 1991).

Because remanding with directions that the trial court dismiss the motion would not serve the cause of judicial economy, we simply affirm. Compare Richardson v. State, 918 So. 2d 999, 1004 (Fla. 5th DCA 2006) (affirming, for the sake of judicial economy, instead of remanding improper denial of habeas corpus petition, where proper disposition was dismissal).

Affirmed.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

STATE OF FLORIDA, Appellant,
v.
LETIVA WILLIAMS, Appellee.No. 4D08-361.

District Court of Appeal of Florida, Fourth District.

November 19, 2008.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Martin Bidwill, Judge, L.T. Case No. 06-103CF10A.

Bill McCullom, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.

No appearance filed for appellee.

MAY, J.

The State appeals the defendant’s sentence. It argues that the trial court erred in finding that the defendant’s conviction on a felony battery charge did not satisfy the catch-all provision for prison releasee reoffender (PRR) sentencing. We agree and reverse.

The State charged the defendant with felony petit theft; felony battery causing great bodily harm, permanent disability or disfigurement; and use of an anti-shoplifting control device counter measure. The Information alleged the defendant had caused great bodily harm, permanent disability or permanent disfigurement by biting the victim on the shoulder and arm causing lacerations requiring emergency medical treatment. The State gave notice of its intent to seek habitual felony offender (HFO) and PRR sentences.

The defendant entered a plea of no contest. At sentencing, the State requested the court to sentence the defendant on the felony battery charge as both an HFO and a PRR. Defense counsel argued that the defendant did not qualify as a PRR. The trial court initially rejected the defendant’s argument, but then changed its ruling based upon the last two paragraphs of our opinion Spradlin v. State, 967 So.2d 376 (Fla. 4th DCA 2007).

On appeal, the State argues that the facts of this case, the defendant’s biting the victim and causing the need for emergency medical attention, are sufficient to establish the requisite violence for imposition of a PRR sentence for the felony battery charge under the catch-all provision of section 775.082(9)(a) 1.(o), Florida Statutes (2005). That provision provides for a PRR sentence for “[a]ny felony that involves the use or threat of physical force or violence against an individual.” § 775.082(9)(a) 1.(o). We agree with the State.

In Spradlin, we addressed whether a second offense of misdemeanor battery qualified for PRR sentencing. The defendant had been convicted of felony battery based upon multiple simple battery charges under section 784.03(2), Florida Statutes (2006). We held that because a felony battery does not always involve physical force or violence, the charge does not automatically qualify for PRR sentencing. We then concluded with the following sentence.

Because felony battery is not one of the enumerated batteries in the forcible felony statute, it is not one of the specific offenses for which a defendant can be made to suffer the enhanced punishments of a PRR.

Id. at 378. It was this language that understandably caused the trial court to reach its conclusion.

That sentence however was unnecessary to the holding in Spradlin. It was not meant to be a broad generalized statement that no felony battery can ever qualify for imposition of a PRR sentence. Certainly, that will depend on the facts of the case.

Here, the defendant was adjudicated guilty of felony battery under section 784.041, Florida Statutes (2005), which requires great bodily harm, permanent disability, or permanent disfigurement. Unlike the crime committed in Spradlin, this defendant committed the offense with force and violence by biting the victim and causing lacerations that required emergency medical care. This crime surely falls within the catch-all provision of the PRR statute.

In this case, the defendant was released from the Department of Corrections on August 23, 2005. Less than a year later, the defendant committed the instant felony battery charge. This qualifies the defendant as a PRR under section 775.082(9)(a) 1.(o). We therefore reverse the sentence and remand the case to the trial court to impose the PRR sentence.

Reversed and Remanded. TAYLOR and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

CLARENCE ANTHONY HARTLEY, Appellant,
v.
STATE OF FLORIDA, Appellee.No. 4D08-2562.

District Court of Appeal of Florida, Fourth District.

November 19, 2008.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Charles E. Burton, Judge, L.T. Case No. 2005CF008174AXX.

Clarence Anthony Hartley, Perry, pro se.

No appearance required for appellee.

PER CURIAM.

Clarence Hartley appeals the final order entered by the trial court summarily denying his motion for postconviction relief which raised four claims. See Fla. R. Crim. P. 3.850. We affirm the denial of claims one, three and four. However, in claim two, appellant has stated a sufficient claim for ineffective assistance of counsel in that his trial counsel failed to make a legally sufficient motion for judgment of acquittal at his trial particularly on the charge of felony petit theft. We therefore reverse the trial court’s summary denial and remand for an evidentiary hearing.

Affirmed in Part; Reversed in Part; and Remanded.

TAYLOR, HAZOURI and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

ANDREW NELSON, Petitioner,
v.
STATE OF FLORIDA, Respondent.No. 4D08-1751.

No. 4D08-1753.

District Court of Appeal of Florida, Fourth District.

November 19, 2008.

Consolidated petitions for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County, John J. Murphy, III, Judge, L.T. Case Nos. 07-23487 CF 10A and 07-22153 CF 10A.

Lorena Valenzuela of Law Firm of Glantz & Glantz, P.A., Plantation, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for respondent.

ON MOTION FOR REHEARINGWARNER, J.

In its motion for rehearing, the state cites to us State v. Naveira, 873 So. 2d 300 (Fla. 2004), which it did not include in its original response. We deny the motion, as we do not think that Naveira changes our opinion but we certify a question to the supreme court as one of great public importance.

In Naveira the state filed its information charging the defendant with sexual battery on the 175th day after the defendant’s arrest. Five days later the defendant filed a notice of expiration of the speedy trial time under Florida Rule of Criminal Procedure 3.191(p)(2). Two days later the trial court held a hearing on the notice of expiration, and at the hearing the state requested that the trial be set the following week. Defense counsel argued that he could not be ready, but the court set the trial. Naveira then moved for a continuance of the trial, arguing that it should b e charged to the state. Th e trial court granted the motion for continuance and charged it to the state. Later it granted Naveira’s motion for discharge under the speedy trial rule. The case was appealed twice. See State v. Naveira, 768 So. 2d 1254 (Fla. 1st DCA 2000); State v. Naveira, 807 So. 2d 766 (Fla. 1st DCA 2002). In the second appeal, the First District upheld the discharge under the speedy trial rule.

In its opinion, the supreme court quashed the opinion of the First District upholding the defendant’s discharge. State v. Naveira, 873 So. 2d 300 (Fla. 2004). The court noted that rule 3.191 governs only the time for bringing a defendant to trial, not the time for filing a charging document. The court adhered to its prior holding that a state cannot charge the defendant after the speedy trial period expires. See State v. Williams, 791 So. 2d 1088 (Fla. 2001). However, it then explained that under the rule the defendant is not entitled to an automatic discharge. Instead, the rule provides that the defendant may invoke the recapture provisions of rule 3.191(p), which then impose deadlines upon the trial court and the state to bring the case to trial. The trial court must hold a hearing on the notice within five days, and the defendant must be brought to trial within ten days of the hearing on the notice, unless one of the grounds in rule 3.191(j) exists to excuse compliance with the rule. One of those reasons is the unavailability of the defendant under rule 3.191(k). That rule provides, in part: “A person is unavailable for trial if. . . the person or counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for in this rule is not entitled to be discharged.” (emphasis supplied).

The court applied these rules to Naveira. It noted that the state was required to bring him to trial within 175 days of his arrest. The state filed its information on the 175th day. Naveira then invoked the rule by filing his notice of expiration. When the trial court and the state complied with the recapture period by holding the hearing within five days and setting the trial thereafter within ten days, Naveira filed a motion for continuance. The court held that Naveira was not ready for trial on the date trial was scheduled and requested a continuance. Therefore under rule 3.191(k) he was unavailable and not entitled to be discharged.

The court noted that the rule-based right to speedy trial was “not coextensive with the broader constitutional right to a speedy trial.” Naveira, 873 So. 2d at 308. It relied on the language of the rule itself to conclude that the rule-based speedy trial right was not violated in Naveira’s case.

While the state posits that Naveira stands for the proposition that any post-speedy trial expiration motion for continuance by a defendant waives his or her rights under the rule, we are not certain Naveira goes that far. Naveira invoked the “notice of expiration” and thus the state’s very limited right of recapture. Those provisions invoke specific deadlines, and a request for continuance once a defendant has insisted upon his rule-based speedy trial rights constitutes a waiver of those rights. State v. Gilliam, 884 So. 2d 128 (Fla. 2d DCA 2004).

Here, however, Nelson had not invoked the notice of expiration. He moved for a continuance of a trial scheduled beyond the speedy trial period. The supreme court in Naveira relied on the defendant’s unavailability to justify its result. The rule requires that a person be unavailable during the term provided for in this rule. There is no showing that the defendant was unavailable during the ninety-day term of the rule, and since no notice of expiration had been filed, there was no showing of unavailability during the right of recapture period which briefly extends the “term” of the rule. Thus, in this case the motion for continuance of the trial filed after the speedy trial term expired but before any notice of expiration was filed has no effect.

We also reach this conclusion based on Stewart v. State, 491 So. 2d 271, 272 (Fla. 1986), which holds, as set forth in our majority opinion, that “when a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which emanate from the same criminal episode.” (emphasis added). Naveira did not discuss Stewart, and the court has warned us that it does not overrule its prior precedent sub silentio. See Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002). We thus must harmonize both holdings, which we have done in this opinion, by concluding that a motion for continuance is a nullity when filed after the speedy trial period has expired but before the notice of expiration invokes the right of recapture. See State v. Leslie, 699 So. 2d 832 (Fla. 3d DCA 1997).

Nevertheless, we are sufficiently unsure of the extent of the Naveira holding on post-expiration waivers of the speedy trial rule and whether the court would recede in part from its holding in Stewart based upon Naveira that we certify a question of great public importance to the court:

DOES A MOTION FOR CONTINUANCE MADE AFTER THE EXPIRATION OF THE SPEEDY TRIAL PERIOD BUT BEFORE A DEFENDANT FILES A NOTICE OF EXPIRATION UNDER THE RULE, WHICH ACTIVATES THE RIGHT OF RECAPTURE PERIOD, WAIVE A DEFENDANT’S SPEEDY TRIAL RIGHTS UNDER THE RULE?

GROSS and HAZOURI, JJ., concur.

Courtesy of David Edelstein

Vrain Scott, Appellant,
v.
The State of Florida, Appellee.No. 3D08-1407.

District Court of Appeal of Florida, Third District.

Opinion filed November 19, 2008.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge, Lower Tribunal No. 94-38169.

Vrain Scott, in proper person.

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

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

SHEPHERD, J.

On May 30, 2008, Appellant, Vrain Scott, filed an appeal from a trial court order denying his Florida Rule of Criminal Procedure 3.850 motion. On June 18, 2008, we ordered Scott to show cause why he should not be prohibited from filing further pro se pleadings with this Court concerning his conviction and sentence stemming from lower tribunal case number 94-38169. After carefully considering Scott’s response to this Court’s show cause order, State v. Spencer, 751 So. 2d 47 (Fla. 1999), and having reviewed the State’s response and the record, we now prohibit Scott from filing any additional pro se appeals, pleadings, motions, or petitions relating to this conviction and sentence.

I. FactsIn case number 94-38169, Scott was charged with armed robbery. In June 1995, following a jury trial, he was found guilty as charged and sentenced as a habitual felony offender to life in prison with a fifteen-year minimum mandatory term. We affirmed his conviction and sentence on direct appeal. Scott v. State, 688 So. 2d 1021 (Fla. 3d DCA 1997). After filing a petition alleging ineffective assistance of trial counsel and a motion to correct his sentence, Scott filed a motion for postconviction relief, in which he argued the robbery statute violated the Florida constitution’s single-subject requirement and the trial court judgment and sentence did not conform to the jury verdict. In June 2004, Scott was adjudicated guilty of “robbery with a weapon” and resentenced to life in prison as a habitual violent offender.

This appeal is Scott’s eleventh filing for postconviction relief to reach this Court, stemming from lower tribunal number 94-38169.¹ In the present postconviction motion, Scott raises four claims. First, he contends his conviction for robbery with a weapon denied him due process of the law because the “weapon” used during the crime was a firearm, which does not meet the statutory definition of a weapon. The trial court previously considered this argument and denied it; thus, this claim is successive. Second, Scott contends the predicate convictions for his habitual violent offender sentence do not meet statutory criteria. The record contradicts his claim. Third, Scott argues his convictions in certain lower tribunal case numbers cannot be used as predicate offenses because he was not convicted of those offenses and because his probation expired before the instant robbery offense. This argument is duplicative of his second argument and is time-barred. Finally, Scott contends he could not be sentenced as a habitual violent offender “merely because his present offense was committed within five years following his release from probation for violent felony offense.” The record reflects Scott qualifies as a habitual violent offender based upon an aggravated assault conviction in lower tribunal case number 91-19120. We therefore find no merit to this postconviction motion.

II. Frivolous Appeals by Prisoners“We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Hepburn v. State, 934 So. 2d 515, 517 (Fla. 3d DCA 2005); Johnson v. State, 915 So. 2d 682, 684 (Fla. 3d DCA 2005). There is, however, no constitutional right to file a frivolous lawsuit. See Hepburn, 934 So. 2d at 517-18; Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996) (“Depriving someone of a frivolous claim . . . deprives him of nothing at all, except perhaps the punishment of . . . sanctions.”). As this Court stated Lanier v. State, 983 So. 2d 658, 660 (Fla. 3d DCA 2008), Hicks v. State, 974 So. 2d 1116, 1118 (Fla. 3d DCA 2008), and Minor v. State, 963 So. 2d 797, 799 (Fla. 3d DCA 2007), “there comes a point where enough is enough.” Based upon careful review of Scott’s filings in this Court, we believe he has reached that point.

III. ConclusionFor the foregoing reasons, we affirm the trial court’s denial of Scott’s Rule 3.850 motion. We further direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this Court any further appeals, pleadings, motions, petitions, or other papers relating to Scott’s conviction and sentence in lower court case number 94-38169, unless they are filed by a Florida Bar member in good standing. Finally, we direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for consideration by that institution of disciplinary measures against Scott pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2007). See Pettway v. McNeil, 987 So. 2d 20 (Fla. 2008).

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. See Scott v. State, No. 3D08-1437 (Fla. 3d DCA Aug. 29, 2008) (table) (denying as moot petition for writ of mandamus); Scott v. State, 986 So. 2d 615 (Fla. 3d DCA 2008) (table) (affirming denial of Rule 3.850 motion); Scott v. State, 963 So. 2d 718 (Fla. 3d DCA 2007) (table) (affirming denial of Rule 3.850 motion); Scott v. State, 932 So. 2d 206 (Fla. 3d DCA 2006) (table) (affirming denial of Florida Rule of Criminal Procedure 3.853 motion); Scott v. State, 922 So. 2d 215 (Fla. 3d DCA 2005) (table) (denying petition alleging ineffective assistance of appellate counsel); Scott v. State, 911 So. 2d 1249 (Fla. 3d DCA 2005) (affirming denial of Rule 3.850 motion); Scott v. State, 831 So. 2d 192 (Fla. 3d DCA 2002) (table) (affirming denial of Florida Rule of Criminal Procedure 3.800 motion); Scott v. Moore, 768 So. 2d 1085 (Fla. 3d DCA 2000) (table) (denying petition for writ of habeas); Scott v. State, 748 So. 2d 366 (Fla. 3d DCA 2000) (affirming denial of Rule 3.850 motion).

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Courtesy of David Edelstein

The State of Florida, Appellant,
v.
Sylvia Holmes, Appellee.No. 3D08-354.

District Court of Appeal of Florida, Third District.

Opinion filed November 19, 2008.

An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces, Judge, Lower Tribunal Nos. 03-21051, 04-13796.

Bill McCollum, Attorney General, and Jerome Smiley, Jr., Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellee.

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

WELLS, Judge.

The State appeals from downward departure sentences in the instant two cases. The defendant concedes that the grounds on which these sentences are based are not supported by competent, substantial evidence and that the sentences should be reversed and remanded for resentencing. For the following reasons, we agree.

In August 2003, Sylvia Holmes was charged with a single count of grand theft in the third degree stemming from the utterance of a forged instrument. The State filed a notice of intent to seek enhanced penalties with regard to this crime.

In September 2003, Holmes suffered a stroke. Although initially partially paralyzed and unable to speak as a consequence of this stroke, Holmes was sufficiently rehabilitated to commit additional crimes in May 2004 and was charged with identity theft, forgery, credit card fraud, and grand theft in the third degree.

The crimes charged in August 2003 and May 2004 were committed while Holmes was serving a five year probationary sentence on a federal felony charge of conspiracy to commit bank fraud¹ and resulted in revocation of Holmes’ probation. She served eighteen months in federal prison for the federal bank charge felony. After release from federal prison, Holmes entered into plea negotiations to resolve the State charges against her. Holmes, facing a guidelines sentence of only 27.8 months in state prison, offered to plead guilty to the charges in both cases in exchange for a downward departure sentence of administrative probation for five years. The State, with information confirming Holmes’ substantial history of theft convictions dating back to the 1970′s, rejected the offer and offered instead ten years in state prison as a habitual felony offender.

Following a hearing at which Holmes testified that she suffered from complications of a stroke and a heart condition and that she was sorry and wanted to live crime free, the court below entered concurrent downward departure sentences of five years administrative probation in the two cases at issue here, concluding that Holmes’ “remorse, and the unlikelihood that she will commit future crimes, are valid reasons to depart from the sentencing guidelines.” The State appeals from this order claiming that this conclusion is supported by neither the record nor the law.

Holmes concedes that the trial court’s conclusion that Holmes was remorseful and not inclined to do it again will not support a downward departure in these two cases because the court did not find (because there is no evidence) that the charged crimes constituted an isolated incident and were committed in an unsophisticated manner. See § 921.0026(2)(j), Fla. Stat. (2007) (providing that remorse may be considered as a mitigating factor that would support a downward departure if the “offense was committed in an unsophisticated manner and was an isolated incident”). On this concession, and the record before us, we agree that the downward departure sentences entered below are unsupported and insupportable, and remand for resentencing.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. As part of her sentence in this matter, Holmes was ordered to pay, among other things, “joint and several restitution in the amount of $11,800.00.”

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Courtesy of David Edelstein

C.D., Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 2D07-6033.

District Court of Appeal of Florida, Second District.

Opinion filed November 19, 2008.

Appeal from the Circuit Court for Hillsborough County, Michelle D. Sisco, Judge.

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

C.D. appeals an order withholding adjudication of delinquency for the offenses of battery and petit theft. We affirm the portion of the order related to the offense of battery, but we conclude that the State failed to prove that C.D. committed petit theft. The trial court erred when it denied C.D.’s motion for judgment of dismissal as to this offense.

This case arises from a teenage feud. At the adjudicatory hearing, the State established that C.D. had a disagreement with the teenage victim. While riding as the passenger in a friend’s car, C.D. saw the victim standing alone at a bus stop. Both C.D. and her friend got out of the car and began to punch the victim. The victim fought back. The victim knew that one of the attackers snatched her necklace and bracelet during this fight, but she did not know which one.

Shortly after these events, the police were called to investigate this crime. They located C.D. on foot near the location of the offense within fifteen or twenty minutes. When detained, she did not have the jewelry. Thereafter, the jewelry was returned by the mother of the other girl. The mother had found the necklace and the bracelet in the glove compartment of her car.

At the close of this evidence by the State, C.D. moved for a dismissal of the petition as to the offense of petit theft. The trial court denied the motion on the theory that the State had at least established a case that C.D. was a principal to this theft.

C.D. then testified and admitted that she had been in a fight with the victim, although her testimony portrayed her own actions as self-defense. She claimed, however, that the other girl took the jewelry and that there had been no plan to rob the victim. She did not remember seeing the other girl place the jewelry in the glove compartment. At the close of this testimony, C.D. renewed her motion for dismissal and the court again denied the motion.

The trial court erred in refusing to dismiss the allegations of petit theft. There was no evidence that C.D. took the jewelry. There was no evidence that C.D. ever planned or intended to take the jewelry or that she did any act or made any statement which was intended to “incite, cause, encourage, assist or advise” the other girl to commit the crime. See Fla. Std. Jury Instr. (Crim.) 3.5(a); § 777.011, Fla. Stat. (2007); Valdez v. State, 504 So. 2d 9 (Fla. 2d DCA 1986); R.W.G. v. State, 395 So. 2d 1279 (Fla. 2d DCA 1981); C.P.P. v. State, 479 So. 2d 858 (Fla. 1st DCA 1985). The only argument made by the State was that C.D. gave the other girl the “opportunity” to steal the jewelry because C.D. was fighting with the victim. Merely creating circumstances or conditions that allow another to commit an independent offense is not enough to establish one as a principal to that offense. Accordingly, the trial court erred in including petit theft as an offense on the disposition order.

Affirmed in part, reversed in part and remanded.

WHATLEY and SILBERMAN, JJ., Concur.

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

Courtesy of David Edelstein