Florida Criminal Law Opinions

M.J.S., a child, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-5000. District Court of Appeal of Florida, First District. Opinion filed March 31, 2009.An appeal from the Circuit Court for Escambia County, Edward P. Nickinson, III, Judge.

David L. Dees, Assistant Regional Conflict Counsel, Pensacola, for Appellant.

Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

M.J.S. was adjudicated a delinquent child for his commission of the offenses of burglary of an unoccupied dwelling, petit theft, grand theft auto and resisting an officer without violence. The Department of Juvenile Justice prepared a Pre-Disposition Report which noted the prior criminal record of M.J.S. as well as his educational, social and familial history. Based on salient information, the Department recommended that M.J.S. be placed on probation with appropriate sanctions. The trial court disagreed with this recommendation and entered a disposition order which placed M.J.S. in a moderate risk commitment program. We reverse.

Subsequent to the entry of the trial court’s order, the Florida Supreme Court decided E.A.R. v. State, 34 Fla. L. Weekly S120 (Fla. January 30, 2009), which announced a new, more rigorous analysis in which a trial court must engage before departing from DJJ’s recommendation. As the court explained in E.A.R.:

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another — and thereby rationalize a departure disposition — is for the court to:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and

(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.

Simply listing “reasons” that are totally unconnected to this analysis does not explain why one restrictiveness level is better suited for providing the juvenile offender “the most appropriate dispositional services in the least restrictive available setting.” § 985.03(21), Fla. Stat. (2007) (emphasis supplied); see also §§ 985.03(44)(a)(e), 985.433(7)(a)-(b), Fla. Stat. (2007). The failure to connect departure “reasons” to the juvenile court’s ultimate statutory duty during a disposition hearing completely undermines the Legislature’s carefully crafted statutory scheme. These “reasons” must “establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the [DJJ].” § 985.433(7)(b), Fla. Stat. (2007) (emphasis supplied). Simply regurgitating information provided by, and contained within, the DJJ’s comprehensive assessment and PDR does not establish acceptable statutory reasons as to why the court is “disregarding” these documents and the DJJ’s recommended disposition. Rather, such parroting merely communicates that the court concurs with the DJJ’s assessment and PDR but then, for some unexplained, unarticulated “reason,” has imposed a judicially recrafted disposition. We conclude that simply parroting is insufficient to justify departure and that, instead, the juvenile court’s stated “reasons,” must provide a legally sufficient foundation for “disregarding” the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public. These are suitable means of insuring fulfillment of the Legislature’s comprehensive scheme and its stated intent that the juvenile courts of this state exercise appropriate discretion with the ultimate aim of providing the juvenile offender the most appropriate dispositional services in the least restrictive available setting.

Id. at S128-29 (emphasis in original.)

Understandably, the order on appeal fails to comply with these new standards. Accordingly, we reverse and remand to provide the trial court an opportunity to enter an order in compliance with E.A.R., or, if the court cannot, impose the probation recommended by the DJJ.

REVERSED and REMANDED.

WEBSTER, VAN NORTWICK, AND THOMAS, JJ., CONCUR.

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

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ROBERT LEE CLEVENGER, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-1314.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2009.

Appeal from the Circuit Court for Citrus County, Richard Howard, Judge.

James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Robert Lee Clevenger, Jr., appeals his conviction for third-degree murder. Clevenger was also convicted and sentenced on a charge of aggravated battery on a pregnant person, arising from the same incident, which he does not challenge on appeal. We find that the issue before us is controlled by Tipton v. State, 97 So. 2d 277, 280 (Fla. 1957), which reversed a murder conviction where the record contained no evidence “to show any cause of deceased’s death from a medical viewpoint” and “no testimony to show a causal connection between the alleged `pushing, shoving and ill treating’ and the death of deceased.” As in Tipton, because the State’s evidence neither revealed the victim’s cause of death nor demonstrated a causal connection between Clevenger’s touching of the victim and her death, we find that the trial court should have granted Clevenger’s motion for judgment of acquittal on this charge. Accordingly, we reverse Clevenger’s conviction for third-degree murder and remand for discharge on that count. We affirm the aggravated battery conviction.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MONACO, LAWSON and EVANDER, JJ., concur.

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LUIS GARZA, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-620.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2009.

3.850 Appeal from the Circuit Court for Citrus County, Richard Howard, Judge.

Luis M. Garza, Raiford, Pro Se.

No Appearance for Appellee.

PER CURIAM.

Luis M. Garza appeals the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion, concluding that Garza’s claims were raised in an earlier motion for postconviction relief.

While the trial court is correct that Garza’s motion would be barred as successive if it raised the same claims as those raised in an earlier rule 3.850 motion, it did not attach any portion of the record to its order. Consequently, the record before this Court does not demonstrate that the motion is successive. Therefore, we remand this case to the trial court for attachment of those portions of the record conclusively refuting Garza’s claims.

REMANDED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.

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E.D.B., a CHILD, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-737.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2009.

Appeal from the Circuit Court for Orange County, C. Jeffery Arnold, Judge.

James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

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

PER CURIAM.

The issue we consider is whether a trial court can retain jurisdiction over a juvenile beyond his nineteenth birthday to compel the payment of assessed costs. We conclude it cannot and reverse.

E.D.B. appeals the trial court’s entry of two orders on February 6, 2008, following a hearing on a take-into-custody order. One order related to E.D.B.’s juvenile case in 06-CJ-0001189, while the other order related to his juvenile case in 05-CJ-0004348. Both orders required E.D.B. to pay $30 per month toward the costs previously assessed in each case. Further, both orders extended the trial court’s jurisdiction over E.D.B. until the assessed costs were paid in full. E.D.B. appeals, arguing that the trial court lacked the authority to retain jurisdiction over him past his nineteenth birthday.¹

Section 985.0301, Florida Statutes (2007), addresses the circuit court’s jurisdiction in juvenile cases, providing in pertinent part:

(1) The circuit court has exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law.

. . . .

(5) (a) Notwithstanding ss. 743.07, 985.43, 985.433, 985.435, 985.439, and 985.441, and except as provided in ss. 985.465 and 985.47 and paragraph (f), when the jurisdiction of any child who is alleged to have committed a delinquent act or violation of law is obtained, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches 19 years of age, with the same power over the child that the court had prior to the child becoming an adult.

. . . .

(i) The court may retain jurisdiction over a child and the child’s parent or legal guardian whom the court has ordered to pay restitution until the restitution order is satisfied. To retain jurisdiction, the court shall enter a restitution order, which is separate from any disposition or order of commitment, on or prior to the date that the court’s jurisdiction would cease under this section. The contents of the restitution order shall be limited to the child’s name and address, the name and address of the parent or legal guardian, the name and address of the payee, the case number, the date and amount of restitution ordered, any amount of restitution paid, the amount of restitution due and owing, and a notation that costs, interest, penalties, and attorney’s fees may also be due and owing. The terms of the restitution order are subject to s. 775.089(5).

The State contends that the statute’s authority to extend jurisdiction for repayment of restitution encompasses outstanding cost assessments.

In construing a statute, “statutory language should be given its plain and ordinary meaning.” Williams v. Ergle, 698 So. 2d 1294, 1296 (Fla. 5th DCA 1997). Section 985.0301(5)(i) unambiguously provides that a “court may retain jurisdiction over a child and the child’s parent or legal guardian whom the court has ordered to pay restitution until the restitution order is satisfied” by entering “a restitution order, which is separate from any disposition or order of commitment, on or prior to the date that the court’s jurisdiction would cease under section [985.0301].” Further, “[t]he terms of the restitution order are subject to [section] 775.089(5),” Florida Statutes. § 985.0301(5)(i). Section 775.089(5) addresses the mechanism for enforcement of a restitution order:

An order of restitution may be enforced by the state, or by a victim named in the order to receive the restitution, in the same manner as a judgment in a civil action. The outstanding unpaid amount of the order of restitution bears interest in accordance with s. 55.03, and, when properly recorded, becomes a lien on real estate owned by the defendant. If civil enforcement is necessary, the defendant shall be liable for costs and attorney’s fees incurred by the victim in enforcing the order.

Finally, section 985.0301(5)(i) states what must be included in a restitution order. This includes “a notation that costs, interest, penalties, and attorney’s fees may also be due and owing.” Reading sections 985.0301(5)(i) and 775.089(5) together, we conclude that costs, interests, penalties, and attorney’s fees under section 985.0301(5)(i) refers to the interest, costs and attorney’s fees associated with the enforcement of a restitution order under section 775.089(5).

Because section 985.0301(5)(i) only allows jurisdiction to be retained to enforce orders of restitution and does not address the issue of retaining jurisdiction to enforce an order of assessed costs, it necessarily excludes it from its purview. Expressio unius est exclusio alterius.² Nor is there any alternative authority for a trial court to retain jurisdiction to enforce orders of assessed costs. Therefore, the trial court erred by retaining jurisdiction over E.D.B., past his nineteenth birthday, in order to enforce the assessed costs provisions in its orders dated February 6, 2008.

We understand the trial judge’s attempt to enforce the assessment of costs. The concept of responsibility for one’s actions is a fundamental tenet of the juvenile justice system. However, this issue is best left for the Legislature to address.

REVERSED and REMANDED.

GRIFFIN, LAWSON and COHEN, JJ., concur.

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Notes:

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WILLIE C. HALL, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-499.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2009.

3.850 Appeal from the Circuit Court for Lake County, Mark A. Nacke, Judge.

Deana K. Marshall, of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Willie C. Hall challenges the denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

After being convicted of robbery with a firearm, possession of or threat to use a hoax bomb, and four counts of aggravated assault, Hall filed a motion for post-conviction relief asserting ten grounds of ineffective assistance of counsel. We affirm the trial court’s denial of his motion in all respects, but write to briefly address Hall’s arguments that his counsel was ineffective for misadvising him of the consequences of testifying and failing to investigate or call certain alibi witnesses.

Hall claims his trial counsel was ineffective for erroneously telling him that the jury would learn the specific details of his prior robbery conviction if he testified. At the evidentiary hearing on this claim, Hall testified that his trial counsel informed him that if he testified, he had to truthfully state the number of his prior felony convictions. This advice was correct because a witness who falsely testifies about the number of his prior felony convictions may be impeached with certified copies of his convictions. See Sneed v. State, 397 So. 2d 931, 933 (Fla. 5th DCA 1981); Howard v. Risch, 959 So. 2d 308, 313 (Fla. 2d DCA 2007). His counsel corroborated this statement and also indicated he told Hall that if he tried to mislead the jury or minimize his prior felony convictions, the prosecution could get into the specifics of his convictions. This advice also appears to be correct, because when a witness lies about the nature of his convictions, he is subject to further questioning to negate or dispel any false impressions that were given. Pryor v. State, 855 So. 2d 134, 136 (Fla. 1st DCA 2003).

Hall’s claim that his trial counsel was ineffective because he failed to investigate Tangela Williams as an alibi witness is belied by the fact that she was listed as a defense witness and subpoenaed for trial. We also find no error in the denial of his claim that his trial counsel failed to call certain alibi witnesses. These witnesses were subpoenaed for trial and ready to be called on Hall’s behalf. However, Hall decided he did not want to call them.

At trial, the trial court twice asked Hall if he wanted to call any witnesses on his behalf.¹ Each time he stated, “No, sir.” At the evidentiary hearing on his motion for postconviction relief, his trial counsel testified that he specifically asked Hall if he wanted his witnesses to testify and he responded negatively. A defendant may not claim his counsel was ineffective for failing to call witnesses when it was the defendant’s decision not to call them. See Thomas v. State, 838 So. 2d 535, 541 (Fla. 2003) (affirming denial of ineffective assistance of counsel claim where trial court found that defendant agreed not to call a witness and thus, could not claim ineffective assistance of counsel based on his decision).

AFFIRMED.

PALMER, C.J., MONACO and COHEN, JJ., concur.

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Notes:

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ROBERT DYSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-484.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2009.

Appeal from the Circuit Court for Orange County, Julie H. O’Kane, Judge.

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

Dyson contends that the trial court committed fundamental error¹ in adjudicating and sentencing him for both robbery with a weapon² and carjacking with a weapon.³ The State concedes that Dyson’s dual convictions violate double jeopardy.

Dyson was found guilty, after a jury trial, of robbery with a weapon and carjacking with a weapon. The evidence established that the victim, the owner of a motorcycle body shop, agreed to help a customer sell his motorcycle. The victim met Dyson at his shop after Dyson had called and expressed an interest in purchasing the motorcycle. After being shown the motorcycle, Dyson attacked the victim with a mallet and then stole the motorcycle.

In the amended information, the only item of property alleged to have been taken by Dyson was the motorcycle. The Florida Supreme Court has found that the carjacking statute is a specific subset of the more general robbery statute. Cruller v. State, 808 So. 2d 201, 204 (Fla. 2002). (“The language of the carjacking statute mirrors the language of the robbery statute with one exception — carjacking pertains only to motor vehicles whereas robbery pertains to all property.”)

In Cruller, the court found that convictions for robbery and carjacking did not violate the principle of double jeopardy where the defendant was found to have taken items of property other than the motor vehicle. Here, however, Dyson was charged with and found to have stolen only one item — the motorcycle. Accordingly, we conclude that Dyson’s dual convictions cannot stand because, under the facts of this case, the two offenses required identical elements of proof. See generally, § 775.021(4)(b)(1), Fla. Stat. (2006).

On remand, the trial court is to vacate Dyson’s robbery conviction. The carjacking with a weapon conviction is affirmed.

AFFIRMED, in part; REVERSED, in part; REMANDED.

MONACO, J., and PLEUS, R.J., Senior Judge, concur.

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Notes:

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JAMES G. EBERHEART, Petitioner,
v.
STATE OF FLORIDA, Respondent.

Case No. 5D08-4487.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2009

Petition for Certiorari Review of Order from the Circuit Court for St. Johns County, Wendy W. Berger, Judge.

James G. Eberheart, Lake Butler, pro se.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Petitioner seeks certiorari review of a circuit court order which denied his rule 3.800(c) motion to mitigate his sentence as untimely. The circuit court noted that petitioner was sentenced on February 12, 2008, but did not file his 3.800(c) motion to mitigate sentence until November 13, 2008, 274 days later. The court, therefore, ruled that it was without jurisdiction to entertain the motion. We grant the writ.

The circuit court overlooked the fact that petitioner directly appealed his sentence and this Court affirmed on October 7, 2008. See Eberheart v. State, 992 So. 2d 270 (Fla. 5th DCA 2008). The mandate issued on October 24, 2008. Florida Rule of Criminal Procedure 3.800(c) provides that a court may reduce or modify a sentence within sixty days after its imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence. Petitioner’s 3.800(c) motion was filed within sixty days of our mandate.

Although a defendant may not appeal an order denying a rule 3.800(c) motion to mitigate or modify a sentence where the motion was considered on the merits,¹ certiorari review is available if the trial court determines that it lacks jurisdiction to rule on the rule 3.800(c) motion. See Davis v. State, 745 So. 2d 499 (Fla. 1st DCA 1999); Evans v. State, 691 So. 2d 63 (Fla. 5th DCA 1997).

In response to this Court’s show cause order, the state concedes that the circuit court had jurisdiction to consider the motion to mitigate sentence on the merits. We, therefore, grant the petition for writ of certiorari, quash the order and remand for further proceedings. See Ukaj v. State, 969 So. 2d 1172 (Fla. 5th DCA 2007).

WRIT GRANTED, ORDER QUASHED.

PALMER, C.J., GRIFFIN and MONACO, JJ., concur.

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Notes:

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THOMAS L. CRAMER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-4240.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2009

3.800 Appeal from the Circuit Court for Orange County, Bob Leblanc, Judge.

Thomas Cramer, Mayo, pro se.

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

PER CURIAM.

We affirm the denial of Thomas L. Cramer’s motion to correct sentence filed under Florida Rule of Criminal Procedure 3.800(a). In reviewing the sentencing documents, we discovered a scrivener’s error in the judgment of Cramer’s Case No. 99-2987. Although the transcript of the sentencing hearing clearly indicates that the sentence in Case No. 99-2987 was to be served consecutively to the other sentences imposed at the same time, the written judgment fails to reflect that fact. On remand, a corrected sentencing document shall be prepared and a copy forwarded to the Department of Corrections.

AFFIRMED and REMANDED.

PALMER, C.J., ORFINGER and MONACO, JJ., concur.

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BERNARD DOUGHERTY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-3034.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2009.

3.800 Appeal from the Circuit Court for Brevard County, David Dugan, Judge.

Bernard Dougherty, Sneads, Pro Se.

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

ORFINGER, J.

Bernard Dougherty appeals a trial court order partially denying his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Dougherty’s motion raised three claims. The trial court denied two of the claims with prejudice. With respect to the third claim, the trial court concluded it was legally insufficient and denied it without prejudice with leave to amend. No specific time was provided within which an amendment could be filed. The order then advised Mr. Dougherty that he had thirty days to file an appeal. Because the order lacks finality, we dismiss for lack of jurisdiction. Howard v. State, 976 So. 2d 635, 636 (Fla. 5th DCA 2008). If leave to amend has been given by the trial court, a defendant may not appeal until an order denying the motion is entered without leave to amend. Id.

It appears that the trial court attempted to create a partial final judgment that allowed Mr. Dougherty to appeal some, but not all, of the grounds asserted, and also allowed an amended motion to be filed at some unspecified time in the future. The trial court should have stricken the legally insufficient claim with leave to amend within a specific, reasonable period of time, probably thirty days. Although the trial court was free to indicate in such a non-dispositive order that the other grounds would ultimately be denied without leave to amend, it should not have entered a partial final order. Lawrence v. State, 987 So. 2d 157, 158 (Fla. 2d DCA 2008). Informing Mr. Dougherty that he had a right to appeal the non-final order within thirty days of its rendition apparently confused him. It would have been preferable for the trial court to affirmatively inform Mr. Dougherty that such a non-final order is not yet appealable. Id.

For these reasons, we must dismiss this appeal. However, the trial court shall provide Mr. Dougherty a reasonable time to amend his motion. If he does not amend his motion, the court may enter a final order that disposes of all of Mr. Dougherty’s claims on the merits. If he files an amendment, the court should consider that amendment and rule on it in an appropriate manner intended to result in a single final order.

APPEAL DISMISSED.

MONACO and COHEN, JJ., concur.

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GLORIA JEAN GALBRAITH, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-2809.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2009.

Appeal from the Circuit Court for Brevard County, George Maxwell III, Judge.

Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Appellant raises two points on appeal, only one of which merits discussion. She contends that the written judgment of conviction contains a scrivener’s error in that she should have been sentenced as an habitual felony offender instead of an habitual violent felony offender. The State concedes error. We affirm Appellant’s conviction but remand this case to the trial court to correct the scrivener’s error in the judgment of conviction.

AFFIRMED and REMANDED.

TORPY, EVANDER and COHEN, JJ., concur.

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