Florida Criminal Law Opinions

GLENN LOUIS MILLER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-5428.

District Court of Appeal of Florida, First District.

Opinion filed February 27, 2009.

An appeal from the Circuit Court of Alachua County, Peter K. Sieg, Judge.

Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Shelly A.R. Chichester, Assistant Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

Glenn Louis Miller appeals, among other things, his conviction for aggravated stalking and the resulting five-year sentence, arguing the trial court erred when giving special jury instructions to define aggravated stalking. A special instruction the trial court added to the (then) standard instruction effectively read an element out of the statutory definition, appellant maintains, and we agree. We reverse the aggravated stalking conviction and sentence on that basis.

Mr. Miller was charged with aggravated stalking in violation of section 784.048(4), Florida Statutes (2007), which provides, in relevant part:

Any person who, after an injunction for protection against repeat violence, sexual violence, or dating violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person’s property, knowingly, willfully, maliciously, and repeatedly . . . harasses . . . another person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Id. (emphasis supplied). At issue is the trial court’s definition of “maliciously” in a case in which the prosecutor described the defendant’s conduct as “extreme niceness.”

When the learned trial court instructed the jury, he did not have the benefit of the supreme court’s subsequent elucidation (on October 30, 2008) of the definition of “maliciously” in this context. At the time of Mr. Miller’s trial, the standard instruction on aggravated stalking read, in pertinent part:

To prove the crime of Aggravated Stalking, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly, willfully, maliciously, and repeatedly . . . [harassed] . . . (victim).

2. At the time of the . . . [harassing] . . .,”

a. an injunction for protection against . . . [domestic] violence had been entered against (defendant) for the benefit of (victim).

3. (Defendant) knew that the [injunction] [court-imposed prohibition of conduct] had been entered against [him] . . . .

“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

Fla. Std. Jury Instr. 8.7(b) (2007) (boldface omitted). Only after the trial was the standard instruction on aggravated stalking amended to define “‘[m]aliciously’ [as] wrongfully, intentionally, and without legal justification or excuse.” In re: Standard Jury Instructions in Criminal Cases—Report No. 2008-04, 995 So. 2d 476, 478 (Fla. 2008).

At trial, the prosecutor requested, and the trial court gave, the following additional special instruction, despite defense counsel’s objection to any deviation from the standard jury instruction:

Malice may be inferred when a defendant disregards an injunction for protection against domestic violence.^* The trial court thus instructed the jury that it could find the defendant guilty of acting maliciously even if it found only that he acted in disregard of an injunction.

The special instruction effectively eliminated the element of malice the State had the burden to prove. The statute requires more than simple disregard of an injunction. The statute does contemplate “disregard” in the sense of acting knowingly and willfully, despite a judicial prohibition, but it also contemplates “malicious” harassment. See § 784.048(4), Fla. Stat. (2007) (”knowingly, willfully, maliciously, and repeatedly . . . harass[ing]“). Defining “maliciously” as acting merely in disregard of an injunction eradicated the need for any proof of acting “wrongfully,” apart from violating the injunction, and greatly lessened the state’s burden of proof.

We reverse the aggravated stalking conviction and sentence, remand for retrial on the aggravated stalking count under the revised standard instructions, and affirm otherwise.

WOLF and BROWNING, JJ., CONCUR.

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

—————

Notes:

—————

STEVEN BERNARD RAINES, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-3019.

District Court of Appeal of Florida, Second District.

Opinion filed February 27, 2009.

Appeal from the Circuit Court for Hillsborough County, Daniel Lee Perry, Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Steven Raines appeals his convictions and sentences for one count of organized fraud and ten counts of third-degree grand theft, contending that the convictions for both organized fraud and grand theft violate double jeopardy because the convictions all arose out of the same course of conduct. The State concedes error on this point, and we reverse. This reversal renders Raines’ second issue on appeal moot.

The State charged Raines with ten counts of third-degree grand theft and one count of organized fraud based on allegations that he submitted fraudulent time sheets to Dixie Staffing, the company through which he was employed, over a three-month period. On some of the time sheets, Raines claimed time for hours he had not worked. On others, he forged the signature of the client who was supposed to be receiving his services. Raines accepted and cashed paychecks from Dixie Staffing based on the fraudulent time sheets he submitted.

Raines entered an open plea to the charges, and the trial court sentenced him to 270 days in county jail followed by twenty-four months’ probation on each of the eleven counts, with all of the sentences to run concurrently. Raines subsequently entered an open admission to violating his probation, and the trial court sentenced him to concurrent terms of five years in prison on counts one through five, which were all third-degree grand theft convictions. The trial court also sentenced Raines to concurrent terms of five years in prison on counts six through eleven, which included the remaining third-degree grand theft convictions and the organized fraud conviction. The court ordered that the concurrent sentences on counts one through five were to run consecutively to the concurrent sentences on counts six through eleven.

In this appeal, Raines contends that his convictions and sentences on both the organized fraud count and the ten grand theft counts violate double jeopardy because all of the convictions were based on the same conduct. The State concedes error based on Pizzo v. State, 945 So. 2d 1203 (Fla. 2006), but contends that it has the right to decide on remand which charges to drop. We disagree.

In Pizzo, the supreme court held that “double jeopardy principles preclude convictions for both grand theft and organized fraud based on the same conduct.” Id. at 1206. When two convictions violate double jeopardy, the conviction for the “lesser” offense must be stricken. Id. (citing State v. Barton, 523 So. 2d 152, 153 (Fla. 1988)). In determining which offense is the “lesser” offense, the court held that “lesser offenses `are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial.’ ” Id. (quoting State v. Florida, 894 So. 2d 941, 947 (Fla. 2005)). Applying this analysis to the convictions for grand theft and organized fraud, the supreme court held that because organized fraud includes all of the elements of grand theft as well as an additional element, grand theft is a lesser offense of organized fraud. Id. at 1207. Therefore, the court held that Pizzo’s grand theft convictions should have been vacated as lesser offenses of his organized fraud conviction. Id.

Raines’ case is essentially indistinguishable from Pizzo. Like Pizzo, Raines was convicted of multiple counts of third-degree grand theft and one count of organized fraud, all of which were based on the same conduct. Thus, like in Pizzo, Raines’ third-degree grand theft convictions must be vacated as lesser offenses of his organized fraud conviction.

The State attempts to avoid this result by contending that, because Raines entered a plea to these charges, the State can determine which charges to drop on remand.¹ It is true that when a sentence is illegal and such sentence is the product of a negotiated plea agreement, the State has the option of either agreeing to the defendant’s resentencing or withdrawing from the plea agreement and proceeding to trial on the original charges. Tucker v. State, 864 So. 2d 580, 581 (Fla. 2d DCA 2004). In such an instance, if the State withdraws from the plea agreement, it may elect to dismiss certain charges before proceeding to trial.

Here, however, Raines did not enter into a plea agreement with the State. Instead, he entered an open plea to the court. Thus, the State cannot choose to “withdraw” from a plea agreement on remand because no such agreement exists, and accordingly the proceedings on remand are not within the State’s discretion. Rather, under Pizzo, Raines’ third-degree grand theft convictions must be vacated and his case remanded for resentencing on the sole remaining conviction for organized fraud.

Reversed and remanded for further proceedings.

KELLY and KHOUZAM, JJ., Concur.

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

—————

Notes:

—————

TERRY L. HARRIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D06-6355.

District Court of Appeal of Florida, First District.

Opinion filed February 27, 2009.

An appeal from the Circuit Court for Leon County, John C. Cooper, Judge.

Nancy A. Daniels, Public Defender, Kathleen Stover, Assistant Public Defender, and Joel T. Remland, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

Resisting an officer with violence, in violation of section 843.01, Florida Statutes (2006), is a “felony that involves the use or threat of physical force or violence against an individual,” and so is punishable under the prison releasee reoffender statute. § 775.082(9)(a)1.o., Fla. Stat. (2006). In affirming on this basis the partial denial of Mr. Harris’ Florida Rule of Criminal Procedure 3.800 motion, we align ourselves with the Second and Fifth Districts. See Rawlings v. State, 976 So. 2d 1179, 1181-82 (Fla. 5th DCA 2008); Green v. State, 973 So. 2d 1253, 1253 (Fla. 5th DCA 2008); Walker v. State, 965 So. 2d 1281, 1283-84 (Fla. 2d DCA 2007).

Like our sister courts, we begin our analysis with the statute itself, read in light of the supreme court’s opinion State v. Hearns, 961 So. 2d 211, 216 (Fla. 2007), which construes another sentencing statute with similar language. There the supreme court said that, “in determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular [factual] circumstances,” Hearns, 961 So. 2d at 212, harking back to an earlier decision where the court had taken the same approach. See Perkins v. State, 576 So. 2d 1310, 1313 (Fla. 1991). See also Dautel v. State, 658 So. 2d 88, 89 (Fla. 1995) (holding “only the [statutory] elements of the out-of-state crime should be considered in determining whether that conviction is analogous to a Florida statute for the purpose of calculating points for a sentencing guidelines scoresheet”).

The statutory language to be construed in the present case defines offenses eligible for prison releasee reoffender sentencing to include any felony involving “the use or threat of physical force or violence . . . within 3 years after [the felon's]. . . release[] from a state correctional facility.” § 775.082(9)(a)1.o., Fla. Stat. (2006). Appellant stands convicted of “resisting officer with violence to his or her person” during the relevant time period, in violation of section 843.01, which provides:

Whoever knowingly and willfully resists . . . any officer . . .in the lawful execution of any legal duty, by offering or doing violence to the person of such officer. . . is guilty of a felony of the third degree . . . .

§ 843.01, Fla. Stat. (2006). Offering to do violence plainly involves the “threat of physical force or violence” while actually doing violence plainly involves the “use . . . of physical force or violence.” § 775.082(9)(a)1.o., Fla. Stat. (2006). Under section 775.082(9)(a)1.o., any felony—or felony attempt—that, like appellant’s, occurs within the relevant time period qualifies as punishable by prison releasee reoffender sentencing if an element of the felony involves even the threat of violence.

In this regard, resisting an officer with violence to his or her person, in violation of section 843.01, differs significantly from simple battery on a law enforcement officer, which the Hearns court ruled did not qualify as a forcible felony.^* Our supreme court held that simple “battery on a law enforcement officer” might involve merely a nonviolent, albeit unwanted, touching, and need “not `involve the use or threat of use of physical force or violence.’” Hearns, 961 So. 2d at 213. See also id. at 219-20; D.C. v. State, 436 So. 2d 203, 206 (Fla. 1st DCA 1983) (”[I]t is clear from Section 784.03 that any intentional touching of another person against such person’s will is technically a criminal battery.”); L. D. v. State, 355 So. 2d 816, 817 (Fla. 3d DCA 1978) (”[I]t is clear that the force used in criminal battery need not be sufficient to injure.”).

Unlike battery on a law enforcement officer, however, resisting an officer with violence to his or her person in violation of section 843.01, does qualify for prison releasee reoffender sentencing. As every other court considering the question has held, “‘[s]ince resisting arrest with violence is a felony that involves the use or threat of physical force or violence, the offense is a qualifying offense under’ the PRR statute.” Walker, 965 So. 2d at 1283-84 (quoting Watson v. State, 749 So. 2d 556, 556 (Fla. 2d DCA 2000)). See Rawlings, 976 So. 2d at 1181-82; Green, 973 So. 2d at 1253.

Affirmed.

WOLF and BROWNING, JJ., CONCUR.

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

—————

Notes:

—————

STEVEN MILLS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-9.

District Court of Appeal of Florida, Second District.

Opinion filed February 27, 2009.

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

SILBERMAN, Judge.

Steven Mills appeals the dismissal, as moot, of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He contends that he did not receive the proper credit for time served in circuit court case number CRC93-01091CFANO-K (the 1993 case). We affirm the postconviction court’s dismissal of Mills’ motion.

Mills’ rule 3.800(a) motion asserts that he twice violated his community control in the 1993 case and was ultimately sentenced upon revocation of community control to four years in prison with jail credit for 185 days. He delineates specific amounts of time that he served in jail and on community control and claims that he should be awarded an additional 75 days as credit for time served in jail and an additional 255 days for time served on community control. The postconviction court dismissed the motion as moot because the attachment to the court’s order reflects that Mills was released from prison on the 1993 case on April 1, 1996. The attachment also reflects that Mills is currently in the custody of the Department of Corrections serving a thirty-year sentence on a 2001 case. Nothing indicates that any relief Mills seeks would have any impact on his current sentence.

Mills contends that the postconviction court erred in dismissing his motion as moot, citing Tucker v. State, 679 So. 2d 1261 (Fla. 2d DCA 1996). In Tucker, this court reversed the denial of a rule 3.800(a) motion because the postconviction court did not consider the merits of the claim for credit for time previously served. Id. at 1262. The postconviction court in Tucker determined that the issue was moot because Tucker had completed his sentences on the cases at issue. On appeal, this court concluded, “Although Tucker is no longer in custody for the cases under review, he is in custody on other charges and is entitled to have the court records accurately reflect the total time he served in prison for the two cases in question.” Id. The facts in Tucker are not entirely clear as to the timing of Tucker’s offenses and whether there could have been any impact on his subsequent case.

We can envision a situation where credit on a completed sentence would affect a subsequent sentence. For example, if sentences are served consecutively, the amount of credit for time served on the first sentence will affect when the second sentence begins. However, in the present case, Mills was released from prison on the 1993 offense, and years later he committed another offense. He is currently serving a thirty-year sentence on the subsequent offense. The use of limited court resources to address a claimed credit for time served as to Mills’ completed sentence would appear to achieve no purpose. Therefore, we affirm the postconviction court’s order dismissing Mills’ rule 3.800(a) motion as moot.

Affirmed.

KELLY and WALLACE, JJ., Concur.

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

NICHOLAS GIGGETTS, III, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-4646.

District Court of Appeal of Florida, First District.

Opinion filed February 27, 2009.

An appeal from the Circuit Court for Clay County, William A. Wilkes, Judge.

Nicholas Giggetts, III, pro se, Appellant.

Bill McCollum, Attorney General, Tallahassee, for Appellee.

The appellant challenges the denial of his rule 3.800(a) motion to correct illegal sentence. Because the trial court denied the appellant’s claim for jail credit on an improper basis, we reverse the trial court’s denial of the motion and remand this case to the trial court for further consideration.

Pursuant to a guilty plea, the appellant was sentenced to twenty years’ incarceration with credit for 698 days. The appellant alleged in his motion that he is entitled to 910 days of jail credit instead of the 698 days that he was awarded. The trial court denied the appellant’s claim on the basis that he entered a guilty plea and stipulated that he would receive credit for 698 days. The trial court attached a copy of the plea agreement and a copy of the plea transcript, both of which indicated the appellant stipulated that he would receive 698 days of credit. However, the plea agreement and plea transcript do not establish that, as part of his plea, he knowingly waived any additional credit which he may have been due. A waiver of jail credit cannot be shown merely by a defendant’s stipulation to a certain amount of credit in the absence of evidence that the defendant knew of his entitlement to additional credit and voluntarily relinquished that right. See Murphy v. State, 930 So. 2d 794, 796 (Fla. 1st DCA 2006) (the record must establish a “clear and knowing waiver of entitlement to additional jail credit”); Davis v. State, 968 So. 2d 1051 (Fla. 5th DCA 2007) (written plea agreement that called for 1,531 days of credit was not conclusive evidence that defendant knowingly and voluntarily waived entitlement to any additional credit he was owed); cf. Reed v. State, 810 So. 2d 1025, 1027 (Fla. 2d DCA 2002) (”the court records must establish the defendant’s clear intent to waive a portion of his or her accrued jail time before we could affirm a defendant’s stipulation to credit for less jail time than was actually served. It seems to this court that a defendant should not lose credit for jail time actually served due to a mistake by the defendant, defense counsel, or the State”).

Accordingly, the denial of appellant’s rule 3.800(a) motion is REVERSED and the cause REMANDED for the trial court to determine if the record demonstrates appellant’s right to the requested credit. If the trial court records demonstrate an entitlement to relief, the additional jail credit should be awarded. If they do not, the claim should be denied. See Cary v. State, 997 So. 2d 423 (Fla. 1st DCA 2008).

KAHN, DAVIS, and CLARK, JJ., CONCUR.

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

KATIE SUZANNE WILLIAMS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-3908.

District Court of Appeal of Florida, Fifth District.

Opinion filed February 27, 2009.

3.800 Appeal from the Circuit Court for Marion County, David B. Eddy, Judge.

Katie S. Williams, Ocala, pro se.

Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

We once again confront the subject of jail credit. Here, we reverse the order denying relief and remand for the trial court to reconsider the issue.

The appellant, Katie Suzanne Williams, appeals the denial of her rule 3.800(a) motion in which she seeks additional jail credit to be applied to her incarcerative sentence. The trial court in considering the motion found that Ms. Williams was initially arrested and held in the Marion County Jail on June 10, 2008, for possession of cocaine, and was released upon being placed on probation on July 30, 2008. She was properly credited with 51 days time served for this interval. Ms. Williams was later taken into custody in Seminole County on August 11, 2008, and was transported to Marion County on September 10, 2008. Her claim to an entitlement to credit for this 30 day interval in Seminole County is the period that is disputed.

The trial court in denying 3.800(a) relief concluded that Ms. Williams had been arrested in Seminole County in August on another charge, but was not arrested pursuant to a bench warrant for the violation of her probation until she was returned to Marion County on September 10th. The trial court understandably found that Ms. Williams received all the jail credit to which she was entitled, evidently viewing her detention in Seminole County as being based solely on the Seminole County charge. More specifically, the trial court was apparently under the impression that Ms. Williams had only a detainer placed upon her by Marion County while she was residing in the Seminole County Jail, and thus would not be entitled to jail credit until she was actually arrested for violating her probation. See Johnson v. State, 932 So. 2d 300 (Fla. 2d DCA 2006).

Our concerns regarding this disposition arise because attached to her “motion to correct credit served” is a Seminole County Sheriff’s form that reflects that although on August 7, 2008, Ms. Williams was initially arrested for possession of narcotics equipment in Seminole County, she was also arrested there on August 11, 2008, on the charge of violating the probation imposed by Marion County, as well. The document attached to her motion indicates that when it was determined by the authorities in Seminole County that she was on probation, “an additional charge of Violation of Probation (warrantless) [was] added.”¹

Although a jail credit claim may be raised by use of a 3.800(a) motion to correct sentence, the movant must demonstrate that the record shows an entitlement to additional jail credit, as well as a sentence that fails to grant such credit. See State v. Mancino, 714 So. 2d 429 (Fla. 1998). Here, the document appears to show on its face that Ms. Williams was arrested without a warrant in Seminole County on the charge of violating the probation imposed upon her by the Circuit Court in Marion County. Because the trial court may have overlooked this reference in the booking document to her “arrest” for violating probation, we reverse the order denying rule 3.800(a) relief, and remand to the trial court for reconsideration of this issue.

REVERSED and REMANDED.

PALMER, C.J. and EVANDER, J., concur.

—————

Notes:

—————

JEFFREY WAYNE MOSELEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-1113.

District Court of Appeal of Florida, Fifth District.

Opinion filed February 27, 2009.

3.850 Appeal from the Circuit Court, for Marion County, Brian D. Lambert, Judge.

Jeffrey W. Moseley, Wewahitchka, pro se.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Jeffrey Wayne Moseley appeals the summary denial of his motion for postconviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. The motion presented thirteen claims, all of which were thoroughly addressed in the trial court’s well-reasoned thirty-page denial order, with the denials supported by record attachments where appropriate. We affirm the trial court’s order as to all claims, and find that the only issue meriting discussion is Moseley’s claim that he was convicted of an uncharged crime.

BackgroundOn September 22, 2003, K.B., a minor student at Belleview High School in Marion County, Florida, reported to her school counselor that she had engaged in sex with Moseley. She also reported that her fourteen-year-old cousin, S.F., was involved in a sexual relationship with Moseley at the time. Moseley was forty-two years old. A report was made to law enforcement, which lead to Moseley’s arrest on a single charge of unlawful sexual activity with K.B. Moseley made bail shortly after his arrest on this charge, after which he continued his relationship with S.F., while living in the home with S.F. and her mother.

On April 19, 2004, the Department of Children and Families removed S.F. from her mother’s custody, after the mother admitted to police that she was aware of the sexual affair between her daughter and Moseley, and had still allowed Moseley to stay in the home. The Department placed S.F. with an aunt, and Moseley was arrested for the sexual battery of S.F. He again made bail, and again continued his relationship with S.F., taking her from her aunt’s custody and absconding with her to Las Vegas, Nevada, and then back to Florida, where he was eventually apprehended (with S.F.) at his sister’s home in Dania Beach. The State then amended its information, adding a charge of interfering with child custody in violation of section 787.03, Florida Statutes (2003).

That statute contains two relevant subsections. In pertinent part, section 787.03(1) makes it unlawful for any person to take a child from the custody of his or her parents or lawful custodian, absent lawful authority to do so. Section 787.03(2), in relevant part, makes it unlawful for any parent or lawful custodian of a child, to take the child with malicious intent to deprive another parent or lawful custodian of that person’s legal right to custody of the child. Moseley is unrelated to S.F., and was clearly not her legal custodian. Therefore, subsection (2) had no application to this case. However, Moseley clearly violated subsection (1) by taking S.F. from her aunt, who had lawful custody of S.F. at the time.

Inexplicably, the State’s amended information in the case charged Moseley with violating subsection (2), and no one appears to have caught the error. Instead, all parties and the court simply assumed that Moseley was being prosecuted under subsection (1). Moseley never objected to the defect in the information, and the information was never amended. The jury was instructed on the elements of the crime outlined in subsection (1), and Moseley was convicted of that charge. In essence, Moseley was charged with violating section 787.03(2), but was convicted of violating section 787.03(1).¹ Citing to the general rule that due process is violated when an individual is convicted of an uncharged crime, Moseley claims that he is entitled to postconviction relief.

AnalysisMoseley is correct that as a general rule “due process is violated when an individual is convicted of a crime not charged in the charging instrument.” Castillo v. State, 929 So. 2d 1180, 1181 (Fla. 4th DCA 2006) (citations omitted). However, “technical deficiencies in a charging instrument are waived if the defendant does not raise them before the state rests its case.” Id. (citing McMillan v. State, 832 So. 2d 946, 948 (Fla. 5th DCA 2002)). With respect to untimely challenges to technical deficiencies in the information or indictment, Florida courts have consistently held that a defendant is not entitled to relief: “‘(1) where a statutory citation for the crime is given, but all elements are not properly charged, or (2) where the wrong or no statutory citation is given, but all elements of the crime are properly charged.’” Id. (quoting State v. Burnette, 881 So. 2d 693, 695 (Fla. 1st DCA 2004) and also citing Cuevas v. State, 770 So. 2d 703, 705 (Fla. 4th DCA 2000)).

In this case, although the information alleged the wrong subsection, it also alleged that Moseley did “unlawfully take, detain, conceal or entice away” S.F. “a child 17 years of age or under” from her aunt with the “intent to deprive [the aunt] of a right to custody of said child….” Although the language of the information does not track subsection (1) perfectly, it does allege all essential elements of the crime for which Moseley was convicted, and therefore withstands Moseley’s untimely challenge. Id. Ultimately, the “‘test for granting relief based on a defect in the charging document is actual prejudice to the fairness of the trial.’” Id. (quoting State v. Gray, 435 So. 2d 816, 818 (Fla. 1983)). In this case, it is clear that Moseley suffered no actual prejudice. Rather, he defended the case at all stages of the proceeding, through verdict and appeal, under the assumption that he had been charged pursuant to subsection (1) of the statute, since he was not a parent or lawful guardian of the child. It would be contrary to the ultimate aim of justice to allow Moseley to now escape the consequences of his crime by ultimately raising a technical defect in the information that could have been easily corrected if it had been timely made.

AFFIRMED.

GRIFFIN and MONACO, JJ., concur.

—————

Notes:

—————

KYLE WARREN FIKE, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D07-2556.

District Court of Appeal of Florida, Fifth District.

Opinion filed February 27, 2009.

Appeal from the Circuit Court for Orange County, Marc L. Lubet, Judge.

James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, J.

Kyle Fike appeals his convictions of one count of sexual battery on a victim under 12 years of age and two counts of lewd or lascivious molestation on a victim under 12 years of age. Fike argues that the trial court erroneously admitted Williams¹ rule evidence at trial regarding a prior incident of alleged sexual molestation. We agree and reverse.

Prior to trial, the State filed a Williams rule notice, advising Fike of its intention to call R.S.J. as a witness to testify that between October 1993 and February 1994, Fike sexually battered him. At a pretrial hearing, R.S.J. testified that he was the younger brother of Fike’s ex-wife. Between the time that he was five and seven years old, Fike would babysit him while his sister took college classes. At that time, Fike forced him to perform oral sex on him approximately ten times. After hearing argument, the court allowed the evidence, finding that R.S.J.’s testimony was reliable and the probative value outweighed the prejudicial effect of the evidence.²

At trial, the jury heard that Fike is M.S.F.’s father, and is divorced from her mother. M.S.F. was living with her mother and stepfather in Melbourne. One Friday in May 2005, M.S.F., who was eleven years old at the time, went to an Orlando hotel where Fike was staying to spend the weekend. The hotel room only had one bed. M.S.F. testified that on the first night of her visit, she fell asleep while she and Fike were watching a movie. She awoke to find Fike shoving her to the other side of the bed. Fike then got on top of her and took off her clothes. He took her hand, and with his hand on top of hers, began rubbing her crotch. She did not remember if his hand actually touched her private area. Fike then lay down beside her and rubbed his penis with her hand. M.S.F. further testified that Fike got back on top of her and pushed his penis “a little bit” inside of her. M.S.F. testified that she was frozen, and did not respond to Fike’s actions because she was scared. She indicated that when Fike got off of her, he told her that he had taken too much cough syrup. M.S.F. conceded that she had previously said that Fike had not put his penis in her vagina. However, she testified that her memory was better at trial because she was having flashbacks.

M.S.F. agreed that she had many opportunities over the next two days to tell someone what happened, but did not. Her father worked on Saturday, and she spent the day with some of his friends. She testified that she slept in the bed with Fike the second night without further incident. Her father drove her home on Sunday, but his car broke down on the way, and her stepfather came and picked them up. Fike spent the night at M.S.F.’s house.

M.S.F. did not report the incident to her mother until July 2005. Her mother then contacted the police. Steve Farris, a detective with the Orlando Police Department, testified that he contacted Fike, who confirmed that he rented a room at the hotel and that his daughter stayed with him for a few days in May 2005. Fike also confirmed that he shared a bed with M.S.F. when she visited and that there was cough syrup in the room because he had a cough from his job as a welder. Detective Farris indicated that Fike denied touching M.S.F. in a sexual way.

R.S.J. then testified. Before and after R.S.J.’s testimony, the court gave the jury the appropriate limiting instruction. R.S.J. testified that he is sixteen years younger than his sister, Fike’s ex-wife and M.S.F.’s mother. R.S.J., who was twenty years old at the time of trial, testified that when he was between the ages of three and seven, Fike often babysat him when his mother went to work and his sister attended college. He testified that throughout those years, Fike would take him to the bathroom of his home and force him to perform oral sex. Other children were in the home, but were not present in the bathroom. He eventually told his mother, and explained that he waited so long because he was scared that Fike would hurt him

After the State rested its case, Fike called several witnesses who all testified that they had known Fike and his daughter for years, and saw them during M.S.F.’s May 2005 visit in Orlando. They each said that they spent time with M.S.F. the day after the alleged incident, and that she did not seem any different or say anything that led them to believe anything improper had happened. Fike also testified and denied any sexual contact with M.S.F. He admitted that in May 2005, he was living in a hotel in Orlando for a short time when M.S.F. came for a weekend visit, and that they both slept in the same bed during that visit. On the Friday night of the visit, they watched a movie and fell asleep in the same bed. He went to work the next morning and he gave his cell phone to M.S.F., who spent the day with his friends. After work, they visited several of his friends. On Sunday, he drove M.S.F. home, but his car broke down on the way, and M.S.F.’s stepfather came and picked them up. He stayed at M.S.F.’s home for a couple of nights, and eventually, M.S.F.’s stepfather took him home.

The jury returned a guilty verdict on all three counts, with a special finding that Fike was over the age of eighteen years and M.S.F. was under the age of 12 years old at the time of the offenses. Fike was adjudicated guilty of capital sexual battery and sentenced to life in prison. He was not sentenced on the two counts of lewd or lascivious molestation. This appeal followed.

Fike’s sole contention is that R.S.J.’s testimony was improper. He argues that there was no similarity between the Williams rule evidence and the charged crime in order to justify the introduction of R.S.J.’s testimony. The State contends that the issue was not preserved for appeal because that specific objection was not raised below. In addition, the State argues that even if the issue was preserved, the trial court correctly admitted the Williams rule evidence.

We agree with the State that the issue was not preserved for appellate review because the specific objection complained of on appeal was not raised below. At the Williams rule hearing, Fike’s counsel argued only that there was no evidence corroborating R.S.J.’s testimony, and thus, it should not be admitted.³ On appeal, he argues that Williams rule evidence was not sufficiently similar to the charged sex act. To preserve an issue for appeal, a litigant must: 1) make a timely contemporaneous objection in the trial court; 2) state the legal grounds for that objection; and 3) raise the specific argument in the appellate court that was asserted as the legal ground for the objection or motion made in the trial court. Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005); Sanchez v. State, 909 So. 2d 981, 984 (Fla. 5th DCA 2005). Since Fike’s argument on appeal differs from the objection raised below, Fike must not only show error, but error that is fundamental to obtain a new trial. See Marion v. State, 287 So. 2d 419, 420-21 (Fla. 4th DCA 1974); Davis v. State, 276 So. 2d 846 (Fla. 2d DCA 1973) (recognizing obvious error in admitting evidence of other offense at trial as fundamental, although error was not raised below nor argued on appeal); Robinson v. State, 462 So. 2d 471 (Fla. 1st DCA 1984) (reversing for “fundamental injustice” under rule 9.140(f)).

The trial court’s ruling on the admission of evidence is reviewed for abuse of discretion. See LaMarca v. State, 785 So. 2d 1209, 1212 (Fla. 2001); Bryan v. State, 947 So. 2d 1270,1271 (Fla. 5th DCA 2007). Section 90.404, Florida Statutes (2007), Florida’s codification of the Williams rule, provides that evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, but is inadmissible when relevant solely to prove bad character or propensity. In cases involving sexual battery in a familial context, “a relaxed standard of admissibility” of the collateral-crime evidence applies.⁴ McLean v. State, 934 So. 2d 1248, 1257 (Fla. 2006). Despite the relaxed standard of admissibility, the trial court must still function as a gatekeeper and perform an adequate balancing test to weigh the probative value of the evidence against its potential for unfair prejudice. Id. at 1261-62. McLean set forth the following guidelines:

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charge; (3) the frequency of the prior act; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

Factors other than the potential for unfair prejudice are also pertinent in a section 90.403 analysis. The trial court must determine whether the evidence of the prior acts will confuse or mislead jurors by distracting them from the central issues of the trial. Also necessary is an assessment whether the evidence is needlessly cumulative of other evidence bearing on the victim’s credibility, the purpose for which this evidence may be introduced. Further, in accord with our precedent, the trial court must guard against allowing the collateral-crime testimony to become a feature of the trial. Finally, if requested, the trial court shall give an appropriate cautionary instruction both at the time the evidence is presented and in its final charge to the jury.

Id. at 1262.

In the instant case, we conclude that the charged offense of sexual battery of Fike’s daughter and the collateral offense of sexual battery on R.S.J. were not sufficiently similar to render the collateral offense admissible. While M.S.F. is female, R.S.J. is male. Further, whereas R.S.J.’s alleged abuse occurred multiple times when he was between three and seven years old, M.S.F. was eleven at the time of the one incident. Additionally, unlike this case, which occurred when Fike was alone with M.S.F. in a hotel room, there were other children at the home when R.S.J.’s alleged abuse occurred. Lastly, the evidence indicated that the sexual abuse in this case occurred in a hotel bed, while R.S.J. testified that the acts against him occurred in the bathroom at his home. Apart from the fact that the sexual acts occurred in the familial context, there is simply no similarity between the two offenses.

“The admission of improper collateral crime evidence is presumed harmful error because of the danger that a jury will take the bad character or propensity to commit the crime as evidence of guilt of the crime charged.” Mims v. State, 872 So. 2d 453, 456 (Fla. 2d DCA 2004) (quoting Sims v. State, 839 So. 2d 807, 811 (Fla. 4th DCA 2003)). For the harmless error rule to apply, the burden remains with the State to prove that there is “`no reasonable possibility that the error contributed to the conviction.’” Mims, 872 So. 2d at 456 (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)). However, because Fike did not preserve the argument raised on appeal, he must demonstrate that the error was not only harmful, but fundamental. While all fundamental error is harmful, not all harmful error is fundamental. Error that does not meet the exacting standard so as to be “fundamental” is subject to review in accord with DiGuilio, which discusses the harmless error test. Reed v. State, 837 So. 2d 366, 370 (Fla. 2002).

Fundamental error has been defined as error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Anderson v. State, 841 So. 2d 390, 403 (Fla. 2003) (citation omitted). The concept of fundamental error is rooted in notions of due process, Sochor v. State, 619 So. 2d 285 (Fla. 1993), and the supreme court has cautioned appellate courts to exercise “`very guardedly’” their discretion concerning fundamental error, and to apply the doctrine only in rare cases. Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970); see Farina v. State, 937 So. 2d 612, 629 (Fla. 2006); Smith v. State, 521 So. 2d 106 (Fla. 1988). Applying that standard here, we conclude the error was fundamental, as this case turned solely on M.S.F.’s credibility. There was no physical evidence to corroborate her version of events, nor was there any confession or admission. This was a swearing match between Fike and M.S.F.

Fundamental error is error that undermines the confidence in the trial outcome and goes to the very foundation of a case. Mathew v. State, 837 So. 2d 1167, 1170 (Fla. 4th DCA 2003). That has occurred here. “Because of the commonly held belief that individuals who commit sexual assaults are more likely to recidivate as well as societal outrage directed at child molesters, the admission of prior acts of child molestation has an even greater potential for unfair prejudice than the admission of other collateral crimes.” McLean, 934 So. 2d at 1256. For these reasons, we conclude that the admission of R.S.J.’s testimony was fundamental error as it undermines confidence in the verdict. Consequently, we reverse Fike’s convictions and remand this matter for a new trial.

REVERSED and REMANDED.

PALMER, C.J. and SAWAYA, J., concur.

—————

Notes:

—————

RICKY BRADLEY, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. SC08-196.

Supreme Court of Florida.

February 26, 2009.

Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict of Decisions, Fifth District — Case No. 5D06-3577, (Volusia County)

James S. Purdy, Public Defender, Michael S. Becker and Rebecca M. Becker, Assistant Public Defenders, Seventh Judicial Circuit, Daytona Beach, Florida, for Petitioner

Bill McCollum, Attorney General, Tallahassee, Florida, and Mary G. Jolley, Wesley H. Heidt, and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, Florida, for Respondent.

QUINCE, C.J.

This case is before the Court for review of the decision of the Fifth District Court of Appeal Bradley v. State, 971 So. 2d 957, 958 (Fla. 5th DCA 2007). The district court certified that its decision is in direct conflict with the decision of the Fourth District Court of Appeal Jackson v. State, 852 So. 2d 941 (Fla. 4th DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we approve the result reached by the Fifth District in Bradley, and disapprove the results in Jackson and Mobley v. State, 939 So. 2d 213 (Fla. 1st DCA 2006), to the extent they hold that a defendant’s plea may not constitute an express waiver of a defective charging document that fails to allege the proper grounds for sentence enhancement.

FACTS AND PROCEDURAL HISTORYRicky Bradley was charged by information with robbery with a firearm in violation of sections 812.13(1) and (2)(a), Florida Statutes (2002). See Bradley, 971 So. 2d at 958. Citing section 775.087(2), Florida Statutes (2002), the information alleged that while committing the robbery Bradley was in possession of and carried a firearm. See id. Bradley later entered a plea of nolo contendere to robbery with a firearm pursuant to a plea agreement. The plea agreement called for a twenty-year mandatory minimum prison sentence that resulted from his discharge of a firearm during the robbery. Prior to entry of his plea, Bradley’s counsel stated on the record that Bradley was subject to the twenty-year mandatory minimum term under section 775.087(2), Florida Statutes (2002). See id.

Although Bradley did not appeal his conviction and sentence, Bradley did subsequently file a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800. See Bradley, 971 So. 2d at 958. Bradley argued that his twenty-year mandatory minimum sentence pursuant to section 775.087(2), Florida Statutes (2002), was illegal because the information charging him with robbery did not allege that he discharged a firearm during the commission of the robbery. The trial court denied the motion. See id.

The Fifth District Court of Appeal affirmed the trial court’s denial of relief and certified conflict with the Fourth District Court of Appeal on the issue of whether a defendant’s nolo contendere plea constitutes a waiver of a defective charging document that fails to allege the proper grounds for sentence enhancement pursuant to section 775.087(2), Florida Statutes. See Bradley, 971 So. 2d at 961. In Bradley, the Fifth District held that the defendant’s explicit plea to discharge of a firearm during the commission of a robbery constituted a waiver of the missing element. See id. at 961. In contrast, under similar circumstances, the Fourth District Court of Appeal Jackson v. State, 852 So. 2d 941 (Fla. 4th DCA 2003), held that the defendant’s explicit plea to discharge of a firearm resulting in great bodily harm during the commission of a robbery did not constitute a waiver of the defective information. See id. at 944.

Bradley petitioned this Court for discretionary review, and we accepted review to resolve the conflict that exists between the district courts of appeal.

ANALYSIS The District CourtsThe Florida district courts disagree about whether a defendant’s nolo contendere plea may constitute a waiver of a defective charging document that fails to allege the proper grounds for sentence enhancement pursuant to section 775.087(2), Florida Statutes. In Jackson, the defendant pled no contest to eight counts, one of which was robbery with a deadly weapon, a firearm. The defendant claimed that his plea to that felony was improperly reclassified under section 775.087(2)(a)3, Florida Statutes (1999), because the information did not allege that he “discharged” a firearm or inflicted death or great bodily harm. See 852 So. 2d at 942-44. The information only charged that the defendant “carried” a firearm. See id. at 944. The Fourth District concluded that an allegation of “carrying” a firearm cannot sustain a sentence enhancement under section 775.087(2)(a)3; therefore, the defendant’s sentence could not stand. See id. The district court held that the defendant did not waive any challenge to the sentence by way of his no contest plea. See id. The court reasoned that even though Jackson and his counsel were under a mistaken belief that he was pleading to a charge that carried a twenty-five-year mandatory minimum sentence that fact does not make the sentence legal where the information charged a crime with only a ten-year mandatory minimum sentence. See id. (citing Leavitt v. State, 810 So. 2d 1032 (Fla. 1st DCA 2002); Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994)).

The First District Court of Appeal held similarly Mobley v. State, 939 So. 2d 213 (Fla. 1st DCA 2006). Mobley entered a plea of guilty to two counts of armed robbery pursuant to a plea agreement. The plea agreement called for concurrent sentences of twenty-five years’ imprisonment with twenty-year mandatory minimum terms for discharging a firearm. See id. at 213. The defendant contended that his twenty-year mandatory minimum sentence was illegal because the information did not charge him with “discharging” a firearm under section 775.087(2)(a)2, Florida Statutes (2002). The information charged the defendant with “possession” of a firearm, which carried a mandatory minimum term of only ten years’ imprisonment under section 775.087(2)(a)1. See id. The First District agreed, holding that because the defendant was only charged with possessing a firearm he could not be sentenced for discharging a firearm. See id. at 214 (citing Jackson, 852 So. 2d at 944; Gibbs v. State, 623 So. 2d 551, 555 (Fla. 4th DCA 1993)). The district court concluded that the grounds for enhancement of a sentence under section 775.087(2) must be charged in the information. See id. (citing Jackson, 852 So. 2d 941; Gibbs, 623 So. 2d 551). The court noted that the mere fact that the defendant agreed to the twenty-year mandatory minimum sentence was irrelevant. See id. (citing Leavitt, 810 So. 2d 1032).

In contrast to the First and Fourth Districts, in Bradley, the case that is now before this Court, the Fifth District held that Bradley’s explicit plea to discharge of a firearm during the commission of a robbery constituted a waiver of the missing discharge element. See 971 So. 2d at 960. The district court reasoned that even though the information failed to charge the discharge of a firearm element, the record demonstrates that Bradley was specifically advised of what offense he was pleading to under section 775.087(2) and that he was exposing himself to a twenty-year mandatory minimum sentence required for discharge of a firearm. See id. at 961. Additionally, the district court found that the plea proceeding reflected that Bradley was sufficiently put on notice that he was subject to the twenty-year mandatory minimum sentence due to his discharge of a firearm during the robbery. See id. The Fifth District disagreed with the Jackson opinion because it found that the Fourth District placed a premium on form at the expense of substance and the defendant in Jackson could not credibly argue that he was not aware of his plea agreement terms. See Bradley, 971 So. 2d at 961.

This CaseThe Fifth District in Bradley affirmed the trial court’s denial of relief on Bradley’s claim that his twenty-year mandatory minimum sentence pursuant to section 775.087(2) was illegal because the information charging him with robbery did not allege that he discharged a firearm during the commission of the robbery. The Fifth District held that Bradley’s explicit plea to discharge of a firearm during the commission of a robbery constituted a waiver of the missing element. See 971 So. 2d at 961. We agree and hold that the defect in the charging information was cured by the plea to the charge. See Fla. R. Crim. P. 3.190; Deparvine v. State, 995 So. 2d 351, 373-74 (Fla. 2008).

In the instant case, Count II of the information alleged:

IN THAT RICKY BRADLEY, on or about August 11, 2002, in the County of VOLUSIA and State of Florida, by force, violence, assault, or putting in fear, did knowingly take away cash and/or u.s. [sic] currency, of some value, from the person or custody of [victim], with the intent to permanently or temporarily deprive [victim] or any other person not the defendant(s) of the property, and in the course of committing the robbery RICKY BRADLEY was in possession of and carried a firearm, contrary to Florida Statutes 812.13(1) and (2)(a) and 775.087(2). (1DEG FEL, PBL)

(Emphasis added.)

Where a firearm is possessed or used during the commission of certain enumerated crimes, section 775.087(2)(a), Florida Statutes, often referred to as the 10/20/Life statute, requires the imposition of a mandatory minimum sentence. See § 775.087(2)(a)1-3, Fla. Stat. (2007). Bradley was sentenced pursuant to section 775.087(2)(a)2, Florida Statutes (2002), which provides:

Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.

(Emphasis added.)

Prior to Bradley entering his plea of nolo contendere to robbery with a firearm, his counsel informed the court:

[P]ursuant to negotiations with the [S]tate of Florida[,] Mr. Bradley is going to withdraw his not guilty pleas as to attempted felony murder and armed robbery with a firearm. He’s going to be pleading no contest to each count of the information. There’s going to be a stipulation that the injuries to the victim . . . were moderate. What this does is take it out of the 25 year mandatory sentencing under the 10/20/life bill. Which if they were deemed to be severe injuries[,] it would be a mandatory 25.

The agreement is pursuant to the 10/20/life bill he is still exposed, because the firearm was discharged, to 20 years mandatory. He will be sentenced to 20 years in the state prison with the expectations [sic] he will have to serve 20 years day for day with credit for time served. I’ve explained to him the only way he’ll get out in less than 20 years is if some how the laws change and it applies to it. But as it stands now[,] he’s got to do 20 years.

(Emphasis added.) Moreover, during the plea proceeding, the court asked Bradley’s counsel for a factual basis. Bradley’s counsel replied: “We would stipulate the facts alleged in the complaint affidavit in the court file would provide a prima facie case for each charge pled to.” The charging affidavit states that Bradley pulled the trigger of the handgun twice but it misfired. On the third trigger pull, Bradley shot the victim in the lower abdomen. Therefore, when Bradley entered his plea he stipulated to the fact that he discharged a firearm during the commission of the robbery.

Bradley’s explicit plea to the discharge of a firearm constituted an express waiver of the defect in the charging information. Bradley stipulated to the facts alleged in the charging affidavit, and Bradley’s voluntary agreement to the plea was predicated upon a sentence that incorporated discharge of the firearm during the offense. Due process was not violated because Bradley voluntarily pled nolo contendere to the robbery charge in order to receive a twenty-year mandatory minimum sentence to avoid a life term, and he stipulated to the factual basis for the sentence. Therefore, Bradley’s plea agreement and the ensuing factual stipulation reflects that he understood the nature and consequences of his plea, negating any notion that he was misled or prejudiced. Thus, contrary to the language from Jackson and Mobley, a defendant’s plea may constitute an express waiver of a defective charging document when he stipulates to facts which include any missing element and voluntarily pleads to a sentence that incorporates the missing element.

CONCLUSIONWe therefore approve the result reached by the Fifth District in Bradley to the extent it is consistent with this opinion. We disapprove Jackson and Mobley to the extent they are inconsistent with this opinion.

It is so ordered.

WELLS, PARIENTE, LEWIS, and CANADY, JJ., concur.

POLSTON and LABARGA, JJ., did not participate.

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

IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.112—MINIMUM STANDARDS FOR ATTORNEYS IN CAPITAL CASES.

No. SC08-1292.

Supreme Court of Florida.

February 26, 2009.

Original Proceeding — Florida Rule of Criminal Procedure.

Judge O. H. Eaton, Jr., Chair, Criminal Court Steering Committee, Eighteenth Judicial Circuit, Sanford, Florida, for Petitioner.

Joseph P. George, Jr., Regional Counsel, Criminal Conflict and Civil Regional Counsel, Third Region, Miami, Florida, Responding with comments.

PER CURIAM.

Pursuant to a request by this Court, the Supreme Court Criminal Steering Committee (Steering Committee) filed a report proposing amendments to Florida Rule of Criminal Procedure 3.112.¹ On October 8, 2008, we amended Florida Rule of Criminal Procedure 3.112 to bring it into conformity with the stated objective that all attorneys representing capital defendants meet certain minimum standards of competency. In re Amendments to Fla. Rule of Crim. Pro. 3.112—Minimum Stds. for Att’ys in Capital Cases, 993 So. 2d 501 (Fla. 2008). In doing so, we took into account the possible appointment of Criminal Conflict and Civil Regional Counsel in capital cases. See Crist v. Fla. Ass’n of Crim. Defense Lawyers, Inc., 978 So. 2d 134 (Fla. 2008). However, because the rule as amended had not previously been published, we authorized a sixty-day period for interested persons to file comments with the Court and for the Supreme Court Criminal Steering Committee to file any response. That period has now expired.

The Offices of Criminal Conflict and Civil Regional Counsel (OCCCRC) for all districts of Florida filed a comment to amended rule 3.112. The Steering Committee agreed with the requested changes, i.e., correcting OCCCRC’s name and making clear that individual contractors are covered by the rule. We herein adopt the requested changes. New language is indicated by underlining. The rule as set forth in the appendix shall be effective immediately upon the release of this opinion.

It is so ordered.

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

POLSTON and LABARGA, JJ., did not participate.

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

APPENDIXRULE 3.112. MINIMUM STANDARDS FOR ATTORNEYS IN CAPITAL CASES

(a)-(d) [No Change]

(e) Appointment of Counsel. A court must appoint lead counsel and, upon written application and a showing of need by lead counsel, should appoint cocounsel to handle every capital trial in which the defendant is not represented by retained counsel. Lead counsel shall have the right to select cocounsel from attorneys on the lead counsel or cocounsel list. Both attorneys shall be reasonably compensated for the trial and sentencing phase. Except under extraordinary circumstances, only one attorney may be compensated for other proceedings. In capital cases in which the Public Defender or Criminal Conflict and Civil Regional Counsel is appointed, the Public Defender or Criminal Conflict and Civil Regional Counsel shall designate lead and co-counsel.

(f)-(h) [No Change]

(i) Notice of Appearance. An attorney who is retained or appointed in place of the Public Defender or Criminal Conflict and Civil Regional Counsel to represent a defendant in a capital case shall immediately file a notice of appearance certifying that he or she meets the qualifications of this rule. If the office of the Public Defender or Criminal Conflict and Civil Regional Counsel is appointed to represent the defendant, the Public Defender or Criminal Conflict and Civil Regional Counsel shall certify that the individuals or assistants assigned as lead and co-counsel meet the requirements of this rule. A notice of appearance filed under this rule shall be served on the defendant.

(j) Limitation on Caseloads.

(1) Generally. [No Change]

(2) Public Defender. If a Public Defender or Criminal Conflict and Civil Regional Counsel seeks to refuse appointment to a new capital case based on a claim of excessive caseload, the matter should be referred to the Chief Judge of the circuit or to the administrative judge as so designated by the Chief Judge. The Chief Judge or his or her designate should coordinate with the Public Defender or Criminal Conflict and Civil Regional Counsel to assess the number of attorneys involved in capital cases, evaluate the availability of prospective attorneys, and resolve any representation issues.

(k) Exceptional Circumstances. [No Change]

Committee Comments [No Change]—————

Notes:

—————