Florida Criminal Law Opinions

JAMES HAMPTON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2893.

District Court of Appeal of Florida, Fourth District.

March 25, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Peter M. Weinstein, Judge; L.T. Case No. 04-6663 CF 10A.

Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

The trial court did not abuse its discretion in admitting evidence of appellant’s prior convictions in his trial for felony battery. Under section 90.806(1), Florida Statutes, the state was allowed to introduce appellant’s prior convictions to impeach his exculpatory out-of-court statements, which were elicited by defense counsel through another witness to suggest that appellant acted in self-defense. As we cautioned in Gonzalez v. State, “a non-testifying defendant who brings out his or her own exculpatory statements through another witness, `runs the risk of having those statements impeached by felony convictions.’” 948 So. 2d 877 (Fla. 4th DCA 2007) (quoting Kelly v. State, 857 So. 2d 949, 950 (Fla. 4th DCA 2003)).

We affirm appellant’s conviction. However, because the trial court did not enter a written order upon its oral finding that the previously committed appellant was competent to proceed to trial, we remand this case solely for the trial court to enter a written order finding appellant competent to proceed, pursuant to Rules 3.212(b) and (c)(7) of the Florida Rules of Criminal Procedure. See Boone v. State, 805 So. 2d 1040, 1041 (Fla. 4th DCA 2002); Corbitt v. State, 744 So. 2d 1130 (Fla. 2d DCA 1999)

Affirmed, but Remanded.

STEVENSON and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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JERMAINE FEARON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-244.

District Court of Appeal of Florida, Fourth District.

March 25, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 2004CF2415 10A.

Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals his convictions for first degree murder, three counts of attempted first degree murder, and three counts of attempted felony murder. He raises numerous arguments, eight to be exact. We affirm on all issues but one. We reverse his convictions on the three counts of attempted felony murder based upon double jeopardy grounds and remand the case to the trial court to vacate those convictions.

The defendant and two others were charged with one count of first degree murder, three counts of attempted first degree premeditated murder, and three counts of attempted felony murder. The incident giving rise to the charges involved the shooting into a vehicle occupied by four individuals. The driver of that vehicle was shot in the eye and ultimately died. Another passenger was shot in the foot.

The front seat passenger, Wallace, testified that as the perpetrators’ vehicle passed, someone stuck a yellow object out of the back passenger window and gun shots followed. As the victim’s vehicle careened out of control, Wallace stopped the car with the hand brake. He observed three individuals run from the perpetrators’ car. He was able to get a good look at the individual in the back seat of the other car and identified him as the defendant.

The police conducted two photographic lineups. Wallace was unable to identify the defendant in the first photo lineup. He was, however, able to identify the defendant from the second photographic lineup that took place six days later. Wallace explained that he was able to identify the defendant from his facial “smirk.”

Additional testimony placed the defendant in the perpetrators’ car and suggested that the shooting had resulted from the attempted robbery of a “dope house.” The police also surmised the killing might have been part of a shootout that took place at more than one location.

The defendant moved to suppress Wallace’s identification arguing the second photo lineup was unduly suggestive because his photo was the only one common to both. At the hearing on the motion, a detective testified that Wallace had been unable to positively identify the defendant in the first photo lineup, but thought he recognized either the second or third photos as the perpetrator. Wallace, however, testified that he was unable to identify anyone in the first photo lineup.

When the second photo lineup took place six days later, Wallace identified the defendant within a minute. While the defendant’s picture was the only one common to both lineups, the photo’s position and format in the second were different. While Wallace was unable to make an in-court identification of the defendant at the hearing on the motion to suppress, he was sure that the defendant was the perpetrator.

The jury found the defendant guilty of one count of first degree murder, three counts of attempted first degree premeditated murder, and three counts of attempted felony murder without a weapon. As to each crime, the jury found that the defendant had neither possessed nor discharged a firearm during the course of the crime. The court adjudicated the defendant guilty on all the offenses, but did not sentence him on the three attempted felony murder convictions. The court sentenced the defendant to concurrent life sentences.

We begin by noting that the State has acknowledged that the trial court erred by adjudicating the defendant guilty of both the three counts of attempted felony murder and three counts of attempted first degree premeditated murder for the same attempted killings. Jackson v. State, 868 So. 2d 1290, 1291 (Fla. 4th DCA 2004) (finding defendant “could not be adjudicated for both attempted first degree premeditated murder and attempted felony murder for the same killing”). The trial court did not “avoid the double jeopardy problem by entering judgment for both convictions and withholding the imposition of sentence for the attempted felony murder conviction.” Heck v. State, 966 So. 2d 515, 516-17 (Fla. 4th DCA 2007). We therefore reverse and remand the case to the trial court to vacate the three attempted felony murder convictions. See id. at 518.

The defendant also argues that the trial court erred in denying his motion to suppress because the procedure used in the second photo lineup was unnecessarily suggestive. We disagree and affirm on this issue.

An out-of-court identification should be suppressed if (1) “police used an unnecessarily suggestive procedure to obtain the out-of-court identification; and (2) . . . the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.” Rimmer v. State, 825 So. 2d 304, 316 (Fla. 2002). Lineup photographs “are not unduly suggestive if the suspect’s picture does not stand out more than those of the others, and the people depicted all exhibit similar facial characteristics.” State v. Francois, 863 So. 2d 1288, 1289-90 (Fla. 4th DCA 2004). Here, the defendant does not suggest that his picture stood out more than the others. Rather, he argues that, because it was the only picture common to both lineups, the second photo lineup was unduly suggestive.

Our supreme court addressed a similar issue in Rimmer. There, two witnesses were asked to identify the defendant in a photo lineup. Rimmer, 825 So. 2d at 315. The first witness was able to do so, but the second witness selected two photos, identifying the defendant’s picture as her second choice. Id. at 316. The detective then told the second witness that the first witness had picked the defendant’s photo. Id.

Approximately two months later, the two witnesses were asked to view a live lineup after being told that a suspect was in the lineup. Id. Both witnesses picked the defendant out of the live lineup. Id. Despite the fact that the defendant had been the only person to appear in the photo lineup and the live lineup, the court did not find the process to be unduly suggestive. Id. at 317-18.

Like the second witness in Rimmer, Wallace was unable to identify the defendant in the first photo lineup, but was able to identify the defendant in the second lineup. In both cases, the defendant was the only common denominator in the second lineup. In fact, in Rimmer the detective told the second witness that a suspect was in the live lineup and that the first witness had identified the defendant, facts not present in our case.

Because the supreme court did not find the process in Rimmer unduly suggestive, we do not find the use of the defendant’s photo in both photo lineups here unduly suggestive. While the defendant’s photo appeared in both lineups, the position of the photo and the format used in the second lineup were different. For these reasons, we reverse in part and remand the case to the trial court to vacate the three convictions of attempted felony murder.

Reversed in part and remanded.

STEVENSON and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Maiker Vazquez, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-2170.

District Court of Appeal of Florida, Third District.

Opinion filed March 25, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Dennis Murphy, Judge, Lower Tribunal No. 01-33581.

Carlos J. Martinez, Public Defender, and Manuel Alvarez and Thomas Regnier, Assistant Public Defenders, for appellant.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

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

GERSTEN, C.J.

Maiker Vazquez (“the defendant”) appeals from his conviction and sentence for second degree murder and attempted kidnapping. We affirm. As the trial testimony reveals, the defendant agreed to find a buyer for a large amount of Ecstasy pills that an acquaintance wanted to sell. Louis Vasquez (“Vasquez”) introduced the defendant to a buyer who took the pills without paying for them. Therefore, the defendant, his co-defendant, and the co-defendant’s girlfriend, Jackie Gonzalez, began looking for Vasquez to find the buyer.

In preparing to look for Vasquez, the co-defendant and Jackie traded in Jackie’s rental car for a van. Further, they removed the van’s tag and put it in the window. Additionally, the co-defendant carried a gun and put duct tape and a hammer in the van.

Thereafter, the defendant, the co-defendant, and Jackie began driving around all the while searching for Vasquez. Jackie and the defendant alternated driving, while the co-defendant sat in the back seat.

The threesome spotted Vasquez coming out of a gym. The co-defendant got out of the van, confronted Vasquez, and the two men wrestled. During the fight, the co-defendant shot Vasquez, and unsuccessfully tried to push Vasquez into the back of the van. At this point, the defendant drove off, picking up his co-defendant along the way.

The police later stopped the van, and the co-defendant and Jackie submitted to arrest. The defendant ran, but was finally arrested when he attempted to jump over a fence. Although all three were arrested, only the defendant and co-defendant were charged.

An issue at trial was whether the defendant had agreed with the co-defendant and Jackie to kidnap Vasquez, torture him, and get him to tell them the location of the drugs. Although at trial the defendant testified that he only intended to talk to Vasquez, in his statements to the police, he admitted knowing about his co-defendant’s preparation prior to looking for Vasquez.

On cross-examination of the lead detective, defense counsel asked: “Focusing on the notes and/or memory that you gained the night of November 2, 2001 as represented in your official and final report regarding this homicide investigation, that there is no specific reference or mention about a plan to kidnap as between my client and [the shooter]?” The detective replied: “That’s not what I was told by Jackie Gonzalez.” At this point, defense counsel objected on hearsay grounds because Jackie did not testify at trial. Defense counsel also requested a mistrial. The trial court denied the mistrial, but instructed the jury to disregard the statement.

On appeal, the defendant contends that the detective’s statement: (a) was inadmissible hearsay; (b) provided the only direct evidence that the defendant agreed to the plan to kidnap the victim; and (c) was so prejudicial that it vitiated the defendant’s right to a fair trial. The State asserts that the statement did not vitiate the entire trial. We agree with the State.

First, we are not convinced that the detective’s statement constitutes hearsay evidence. See § 90.801(1)(2), Fla. Stat. (2006). The statement was an attempt to answer defense counsel’s extremely confusing question. Defense counsel started out by referring to the contents of the detective’s report. Then, he vaguely mentioned a plan to kidnap between the defendant and the co-defendant. Defense counsel did not ask the detective if anyone stated that the defendant had agreed to the kidnapping. Thus, it is hard to determine what, if anything, was asserted for the truth.

Second, even if the jury could have understood the statement was asserted as truth that Jackie’s statement implied the defendant’s agreement to the kidnapping, the statement was isolated. Neither the detective nor the prosecutor referred to the statement again throughout the trial. Thus, the trial court’s prompt instruction that the jury disregard the statement was sufficient to cure any harm. See Barnes v. State, 470 So. 2d 851 (Fla. 1st DCA 1985).

Finally, we find there was other competent, substantial evidence from which the jury could have inferred the defendant’s intent to participate in the kidnapping. See Jacobs v. State, 396 So. 2d 713, 716 (Fla. 1981). The defendant knew about, and even drove, the van with the removed tag and the duct tape and hammer. Additionally, the defendant admitted that he went with the co-defendant even after the co-defendant indicated he intended to torture Vasquez. In light of this evidence, the jury reasonably could have disbelieved the defendant’s trial testimony that he only intended to question Vasquez.

Accordingly, we affirm the judgment of conviction and sentence entered below.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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MALCOLM RANDALL BADGER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-1717.

District Court of Appeal of Florida, Second District.

Opinion filed March 25, 2009.

Appeal from the Circuit Court for Hillsborough County, Robert A. Foster, Jr., Judge.

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

Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Malcolm Randall Badger appeals the trial court’s orders revoking his probation and sentencing him to prison terms totaling fifteen years in four separate criminal cases. We affirm the orders revoking his probation and the sentences except for three concurrent sentences imposed on Mr. Badger’s third-degree felony convictions. The earlier sentences for those convictions had actually expired prior to these revocation proceedings.

Sentencing in these cases in 2007 was a challenge because two of the cases, case numbers 00-CF-17866 and 00-CF-21191, involved sentencing on a second violation of probation. The other two cases, case numbers 02-CF-535 and 02-CF-12003, involved sentencing on a first violation of probation.

The two counts in case number 00-CF-17866 had resulted in convictions for third-degree felonies in 2002, and the terms of probation for those two convictions had actually expired prior to the proceedings in 2007 as a result of credit for time served on probation prior to the first violation of probation. Count two in case number 00-CF-21191 also involved a third-degree felony, and the term of probation for that count had also expired prior to the proceedings in 2007.

Accordingly, we reverse the sentences in case number 00-CF-17866 and the sentence for count two in case number 00-CF-21191. On remand, the trial court shall vacate these sentences. Our disposition does not affect the sentences for count one in case number 00-CF-21191 or the sentences imposed in case numbers 02-CF-535 and 02-CF-12003. Thus, our disposition leaves unaffected Mr. Badger’s prison terms totaling fifteen years and the five-year terms of probation to follow.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KHOUZAM, JJ., Concur.

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

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KEVIN NICHOLSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D06-3389.

District Court of Appeal of Florida, Fourth District.

March 25, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 04-14348 CF10A.

Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

HAZOURI, J.

Kevin Nicholson appeals from his conviction and sentence for firstdegree murder. He argues that the trial court erred when it allowed the state to present improper Williams¹ rule testimony at his trial. Nicholson also argues that the trial court erred in denying his motion for judgment of acquittal because the state’s case consisted of circumstantial evidence which was insufficient to support the conviction. We affirm on both points and write only to discuss Nicholson’s assertion that the trial court erred by allowing improper evidence of an uncharged collateral crime.

Nicholson was indicted for the first-degree murder of his ex-wife, Lorrie Tennant Nicholson, which occurred on August 26, 2004.

The state filed its Notice of Intent to Offer Evidence of Other Crimes or Acts along with its Motion for Permission to Introduce Collateral Crime Evidence to which the defendant objected. The acts the state wished to offer into evidence against Nicholson were:

A/ That on February 9, 2003 police were called to 6710 Forrest Street (the same address at which the homicide in the instant cause occurred) in Hollywood, Florida reference a domestic dispute between Lorrie Tennant Nicholson and Kevin Nicholson. Also present was one Andrew Adderly. B/ That in sworn testimony Andrew Adderly stated that in February of 2003, he was involved in a sexual relationship with Lorrie Tennant Nicholson. Ms Nicholson’s marriage had not yet been terminated by divorce. However, Kevin Nicholson and Lorrie were living separate and apart at the time. Indeed the divorce proceedings were commenced in 2003.

C/ That Mr. Adderly told the police under oath that on February 9, 2003, he and Lorrie were in the master bedroom. Lorrie was asleep when at 4:00 am Mr. Adderly heard a noise emanating from a bathroom. He proceeded to the bathroom and observed a man cutting the screen. Adderly grabbed the cutters, went to Lorrie and advised her of what was happening and instructed her to call the police. Adderly returned to the bathroom and discovered that the intruder was halfway inside of the house by way of the bathroom window. Adderly pulled the intruder inside further and threw him into the bathtub. Upon looking at the intruder, he realized that it was Kevin Nicholson. Nicholson proceeding [sic] to exclaim that Lorrie was a “whore” and that the two were “fucking”. Nicholson then went straight to the bedroom where Lorrie was located. Nicholson pushed her back onto the bed, spread her legs and reached and touched her vaginal area with his right hand and then smelled his hand. Adderly grabbed Nicholson to liberate Lorrie. Nicholson began to argue about Adderly’s presence, their sexual activity and Adderly’s sleeping with Lorrie instead of in the guest room.

According to the medical examiner, the victim was killed between 10 p.m. and 3 a.m. The death was caused by eight stab wounds inflicted with a knife. The victim was found with her nightgown up. There were no defensive wounds and no trauma to the arms, legs, or genital area. No items were taken from the house, including $690 which was in the decedent’s wallet on the nightstand.

Crime scene investigators photographed the scene, lifted prints, and took other evidence, such as swabs of blood. There were numerous latent prints taken from inside the house and bedroom where the murder occurred. None of these latent prints matched the defendant. A knife sheath was found in the bedroom and, although there were no prints on the knife sheath, a forensic expert testified that from the partial profile of DNA that was contained on the knife sheath, there was a one in ten probability that the knife sheath belonged to the defendant. The knife, alleged to have been the murder weapon, was not recovered. The investigators did, however, discover a broken window in the bedroom with a hole in the screen. Blood was found outside the broken window. A patent palm print on the window sill was identified as belonging to the defendant. The palm print overlay blood which was determined to be the blood of a female. Additionally, the palm print was an exit print, as it pointed outward.

The state called Andrew Adderly as a collateral crime witness. Adderly testified that he was sleeping at Lorrie’s house on February 8, 2003, and that in the early morning hours of February 9 he heard a noise in the bathroom. He got up and went to investigate. He then saw a man halfway through the bathroom window. The unidentified man was using a box-cutter to cut through the screen of the window. Adderly grabbed him and pulled him through the window and discovered that it was the defendant. Adderly further testified that the defendant left the bathroom, went into Lorrie’s bedroom, spread her legs, lifted her nightshirt, put his hand into her vagina, smelled his hand, and accused her of having sex with Adderly. Adderly testified that the defendant was very upset with Lorrie and said “you’re a whore, I know you’re fucking him. You’re a whore. Why’s he in my house.” Adderly called the police and the incident report was filed, although there were no criminal charges.

The state asserts that this evidence is relevant to establish motive and intent for the homicide.

At the hearing on the state’s motion, the state showed the similarity between the actions of the defendant on February 9, 2003, and the circumstances of the homicide. The victim was the same and she was found in a similar position, spread-eagled with no foreign DNA, and the perpetrator used the window to enter and exit the bedroom. In addition to the argument that this was a collateral crime, the state argued in addition to motive and intent, that the events of February 9, 2003 were inexplicably intertwined with the homicide and were probative of identity and opportunity.

The defense argued that the evidence was not relevant, and that placing a finger in the vaginal area was not sufficiently similar to killing someone with a knife. The trial court granted the state’s motion, finding that the evidence was relevant and not outweighed by undue prejudice.

The standard of review for admission of evidence is abuse of discretion; but that discretion is limited by the rules of evidence. Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001). The Williams rule has been codified in section 90.404(2)(a), Florida Statutes, which provides:

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Although there are several similarities between the events of February 9, 2003, described by Adderly, they are insufficient to warrant introduction of the collateral crime prior bad acts for the purposes of identity. Nor do we find the incident of February 9, 2003, inextricably intertwined with the events of the night of Lorrie Nicholson’s unfortunate death. However, similarity is not required if relevant to motive or intent.

As the Supreme Court of Florida notes:

“Evidence of `other crimes’ is not limited to other crimes with similar facts. So-called similar fact crimes are merely a special application of the general rule that all relevant evidence is admissible unless specifically excluded by a rule of evidence. The requirement that similar fact crimes contain similar facts to the charged crime is based on the requirement to show relevancy. This does not bar the introduction of evidence of other crimes which are factually dissimilar to the charged crime if the evidence of other crimes is relevant.”

Sexton v. State, 697 So. 2d 833, 836-37 (Fla. 1997) (quoting Bryan v. State, 533 So. 2d 744, 746 (Fla. 1988)).

Dennis v. State, 817 So. 2d 741 (Fla. 2002), which relies on Sexton, the defendant was convicted of the first-degree murder of a young woman with whom he had a stormy relationship. The defendant argued that the trial court erred in admitting collateral evidence that he stalked, threatened, and assaulted the victim. He argued that this evidence was not relevant to demonstrate motive or intent, and should have been excluded on the grounds of unfair prejudice, as it demonstrated only propensity.

The evidence the defendant complained of came from several of the victim’s family members and friends who recounted incidents in which the defendant would stalk the victim. Particularly, the victim’s uncle described one incident in which the defendant, while aiming a gun at both of them, threatened to kill him and the victim. In sum, the evidence depicted the turbulent and sometimes violent relationship between the defendant and the victim.

The court in Dennis stated that “‘evidence of bad acts or crimes is admissible without regard to whether it is similar fact evidence if it is relevant to establish a material issue.’” 817 So. 2d at 762 (quoting Pittman v. State, 646 So. 2d 167, 170 (Fla. 1994)). Then, it again cited Sexton, stating that “‘[a] trial court has broad discretion in determining the relevance of evidence and such a determination will not be disturbed absent an abuse of discretion.’” Dennis, 817 So. 2d at 762 (quoting Sexton, 697 So. 2d at 837).

Noting that the evidence against the defendant in Dennis was certainly prejudicial, the supreme court held that

the evidence of the nature of [the defendant's] relationship with the victim was relevant to establish [the defendant's] motive. See Burgal v. State, 740 So. 2d 82, 83 (Fla. 3d DCA 1999) (holding prior incidents of domestic violence by the defendant against the victim were properly admitted to prove motive, intent, and premeditation in prosecution for attempted first-degree murder); Brown v. State, 611 So. 2d 540, 542 (Fla. 3d DCA 1992) (holding that evidence that the defendant had a rocky relationship with the victim and had threatened to kill her if he caught her with another man was relevant to establish motive in a prosecution for battery and attempted second-degree murder).

Dennis, 817 So. 2d at 762.

Accordingly, based upon the supreme court’s decision in Dennis, and the cases cited therein, we conclude that the events of February 9, 2003, although consisting of prior bad acts, were admissible as relevant to prove motive and intent. We also note that the prior bad acts were not made a feature of the trial. Therefore, the trial court did not err in admitting prior bad act evidence and we affirm the conviction.

Affirmed.

POLEN and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

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Gloria Fierro, Appellant,
v.
The State of Florida, Appellee.

No. 3D06-2930.

District Court of Appeal of Florida, Third District.

Opinion filed March 25, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Ilona M. Holmes, Judge, Lower Tribunal No. 02-21561.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before RAMIREZ, SHEPHERD, and ROTHENBERG, JJ.

SHEPHERD, J.

After pleading guilty to second-degree murder in the cold-blooded execution of her ex-husband while he slept, Gloria Fierro appeals the life sentence thereafter imposed upon her on the ground the State breached a purported oral agreement “to refrain from recommending a sentence greater than 25 years.” Because the defense failed to assert the alleged error either at the sentencing hearing or within thirty days of rendition of the sentence pursuant to Florida Rule of Criminal Procedure 3.170(l), we conclude the alleged error is not cognizable on direct appeal.

In July 2002, Fierro was charged by indictment with first-degree murder and one count of use of a firearm in the commission of a felony, for the murder of her ex-husband. Pursuant to plea negotiations, the State agreed to reduce the charge to second-degree murder with a deadly weapon, which carried a minimum mandatory sentence of twenty-five years and a maximum of life in prison. § 775.087, Fla. Stat. (2002). Prior to the sentencing hearing in the case, Fierro filed an “Amended Sentencing Memorandum,” in which she articulated the State’s purported promise. As Fierro tells it, she made the agreement “so she could try her best to persuade the sentencing judge to give her no more than the 25-year minimum mandatory sentence.”

There is no written confirmation of any agreement. However, the State does not deny an agreement of some nature existed. At the sentencing hearing, the State described the promise as follows: [Prosecutor]: The defense in this case has presented to Your Honor a sentencing memorandum.

The [S]tate agreed, in parts of it. The way they worded it, I believe, is that we agreed to—the [S]tate has agreed to refrain from recommending a sentence greater than 25 years. That’s what was stated by the defense.

Judge, the [S]tate agreed not to seek any specific sentence, and that does not mean that we recommend a 25 year sentence.

We left this sentence up, this sentencing up to the Court, a lawful sentence in this case is 25 years to life.

I’m personally remaining silent on what I felt was the appropriate sentence.

And we worked out this plea arrangement so that the Defendant would have the opportunity to present what she wanted.

Whatever may have been the precise contours of the plea agreement, Fierro contends she is entitled to relief on direct appeal from the sentence imposed because the prosecutor’s statements at the hearing breached the agreement. She points to two statements made by the prosecutor in support of her position. The first—made by the prosecutor at the conclusion of all of the evidence and after all family members addressed the trial judge—appears as follows in the transcript:

The family, and as a Prosecutor, I feel it’s my job to come before you, to seek a just sentence, but it’s the family in this case, Your Honor, that I have come to believe, since I have done this work, that are the people who have suffered the most, and it is what they want, and what they seek as a sentence, that I hope this Court hears loud and clear.

The second alleged prosecutorial transgression was made in rebuttal to a statement by defense counsel that the parties perhaps should have gone to trial. In reply thereto, the prosecutor stated that if the State had not agreed to the plea, the State would have gone to trial and argued that evidence of battered spouse defense— presented by the defendant in mitigation of her sentence—would not have been admissible before the jury. Instead, the jury would have heard that Defendant killed the victim while he was sleeping in his bed. The prosecutor then stated, “That doesn’t mean that 25 years is an appropriate sentence. That’s all I have to say.” The alleged violations of the plea agreement first surfaced in a Florida Rule of Criminal Procedure 3.800(b)(2) motion filed by Fierro’s appellate counsel in the trial court after she filed her notice of direct appeal.

The rights of a defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue are carefully circumscribed by law and rule. See Fla. R. App. P. 9.140(b)(2)(A)(ii). Under this Rule, a defendant may directly appeal only:

a. the lower tribunal’s lack of subject matter jurisdiction;

b. a violation of the plea agreement, if preserved by a motion to withdraw plea;

c. an involuntary plea, if preserved by a motion to withdraw plea;

d. a sentencing error, if preserved; or

e. as otherwise provided by law.

Fla. R. App. P. 9.140(b)(2)(A)(ii) (emphasis added). Florida Rule of Criminal Procedure 3.170(l) limits the time for filing a motion to withdraw plea to “thirty days after rendition of the sentence.” The defendant in this case has not sought to withdraw her plea. Although this apparently is a matter of first impression for this Court, every other court that has considered the matter has held that the proper procedure for preserving the subject claim where there has been no timely objection is by filing a motion to withdraw plea. See Balkaran v. State, 950 So. 2d 478 (Fla. 4th DCA 2007); Taylor v. State, 919 So. 2d 669 (Fla. 2d DCA 2006); Barber v. State, 901 So. 2d 364 (Fla. 5th DCA 2005) (“[A]n issue regarding a sentence that exceeds the terms of the plea agreement is not a sentencing error subject to relief under Rule 3.800(b).”); Williams v. State, 873 So. 2d 1248 (Fla. 5th DCA 2004); Williams v. State, 821 So. 2d 1267 (Fla. 2d DCA 2002). We join our sister courts.

Fierro argues her Rule 3.800(b)(2) motion preserved her right to direct appeal. That is not so. As the Florida Supreme Court recently clarified, Rule 3.800(b)(2) is not a vehicle to correct just any error alleged to have occurred during the course of the sentencing process. See Jackson v. State, 983 So. 2d 562, 572 (Fla. 2008). Rather, the Rule is “intended to address errors to which [a] defendant had no meaningful opportunity to object and matters that rendered the sentence otherwise subject to review under [R]ule 3.800(a).” Griffin v. State, 946 So. 2d 610, 613 (Fla. 2d DCA 2007), quashed in part on other grounds, 980 So. 2d 1035 (Fla. 2008). As in Jackson, counsel here had ample opportunity to bring the purported error to the attention of the trial court. Jackson, 983 So. 2d at 568 n.2.

Finally, just as Jackson’s failure to preserve the alleged error by motion under Rule 3.800(b) or by objection during the sentencing hearing precluded her from raising the error in that case on direct appeal, so too does Fierro’s failure to preserve the alleged error in this case, either by motion under Rule 3.170(l) or by objection, foreclose her from raising the alleged error here on direct appeal. See Jackson, 983 So. 2d at 569.¹ To conclude otherwise would “[incent] a defendant . .. to sit silent in the face of a procedural error in the sentencing process and then, if unhappy with the result, file a motion under [R]ule 3.800(b)” in contravention of the purpose and intent of the crafters of the Rule. See id. at 570; see also Griffin, 946 So. 2d at 613 (“[Rule 3.800(b)] was not intended to give a defendant a `second bite at the apple’ to contest evidentiary rulings made at sentencing to which the defendant could have objected but chose not to do so.”).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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KENNETH NESMITH, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-5960.

District Court of Appeal of Florida, First District.

Opinion filed March 23, 2009.

An appeal from the Circuit Court for Duval County. John M. Merrett, Judge.

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant, Kenneth Nesmith, appeals his judgments and sentences for three counts of sexual battery and one count of battery. He argues two issues on appeal: (1) the trial court erred in failing to conduct a Nelson¹ inquiry when he requested discharge of his court-appointed counsel and appointment of substitute counsel; and (2) the trial court erred in refusing to allow him to personally cross-examine the victim after he exercised his right to self-representation. We agree with Appellant on both issues. Accordingly, we reverse and remand for a new trial.

Appellant was charged with three counts of sexual battery and one count of aggravated battery with a deadly weapon. During a pretrial hearing, Appellant asked the court, “Can I please have somebody else to represent me, or can I represent myself?” In response, the trial court questioned Appellant, consistent with Faretta v. California, 422 U.S. 806 (1975), as to whether he understood the ramifications of self-representation. The trial court did not inquire as to the reason Appellant wished to discharge his court-appointed counsel. Appellant indicated that he understood the repercussions of representing himself but wished to do so anyway because his appointed counsel “has not been helping me at all since I’ve been in here.” The trial court determined that Appellant had made a knowing, voluntary decision to represent himself and stated that Appellant’s court-appointed counsel would act as standby counsel during trial. Appellant objected to standby counsel’s presence at his trial.

The State filed a motion for standby counsel to cross-examine the victim, alleging that allowing Appellant to cross-examine her would exacerbate her mental health condition. The trial court granted the State’s motion over Appellant’s repeated requests to cross-examine the victim personally. At trial, following direct examination, the court gave Appellant time, out of the presence of the jury, to write down questions for standby counsel to ask the victim on cross-examination. The jury found Appellant guilty as charged of three counts of sexual battery and guilty of the lesser-included offense of battery. This appeal follows.

Appellant first argues that the trial court erred in failing to conduct a Nelson inquiry when he made an unequivocal request to discharge his court-appointed counsel. Under Nelson, when a defendant makes clear to the trial court that he desires to discharge his court-appointed counsel, the trial court should inquire as to the reason for the request. Nelson, 274 So. 2d at 258-59; see also Maxwell v. State, 892 So. 2d 1100, 1102-03 (Fla. 2d DCA 2004). If the defendant’s reason is not counsel’s incompetence, then no further inquiry is required. Maxwell, 892 So. 2d at 1102; see also Bodiford v. State, 665 So. 2d 315, 316 (Fla. 1st DCA 1996). A trial court’s failure to conduct a preliminary inquiry into the defendant’s reason for seeking to discharge court-appointed counsel is not harmless error; rather, it is “a structural defect in the trial requiring reversal as per se error.” Maxwell, 892 So. 2d at 1102.

In the instant case, when Appellant stated that he wished to be appointed new counsel or to represent himself, the trial court should have made a preliminary inquiry as to Appellant’s reasons for seeking discharge of his appointed counsel. The trial court, however, failed to make this inquiry and instead proceeded to question Appellant regarding his competence to represent himself under Faretta. This failure constituted reversible error, entitling Appellant to a new trial.

Appellant’s second argument is that the trial court denied him the right to represent himself by not allowing him to cross-examine the victim directly. In Faretta, the Supreme Court held that the Sixth Amendment provides a criminal defendant a constitutional right to represent himself. 422 U.S. at 819-20. The Court held that such a right is violated when counsel is unwillingly “thrust” upon the accused. Id. at 820.

Here, Appellant did not seek participation from standby counsel during his trial. In fact, Appellant objected to standby counsel’s presence at his trial. Although Appellant’s ability to cross-examine the victim was a major element of conducting his own defense, the trial court, over Appellant’s objection, required him to cross-examine the victim in the presence of the jury through standby counsel. This was error, as Appellant was denied the ability to appear as he saw fit. Therefore, under the facts of this case, we find that Appellant’s Sixth Amendment right to personally conduct his defense was violated by the trial court’s refusal to allow him to cross-examine the victim.

Accordingly, we REVERSE and REMAND for a new trial.

WEBSTER, BROWNING, and LEWIS, JJ., CONCUR.

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

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Notes:

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ROBERT JAMES MISURACA, Petitioner,
v.
STATE OF FLORIDA, Respondent.

Case No. 5D09-371.

District Court of Appeal Florida, Fifth District

Opinion filed March 20, 2009.

Petition for Belated Appeal, A Case of Original Jurisdiction.

Robert James Misuraca, Daytona Beach, pro se.

No Appearance for Respondent.

GRIFFIN, J.

Petitioner seeks a belated appeal of his judgment and sentence. We deny the petition.

The petition was filed under the mailbox rule on January 3, 2009. According to Petitioner’s allegations, on September 12, 2005, he was sentenced to fifteen years in prison. He alleges that at the time of sentencing he asked counsel to file the appeal, but she failed to do so. Petitioner further alleges that he learned of defense counsel’s omission after receiving a response to his notice of appeal inquiry from the clerk of court on September 25, 2007. That response from the clerk indicated that no notice of appeal had ever been filed. Petitioner admits his awareness of the two-year window for filing a timely petition for belated appeal, but he contends that the instant petition is timely because “it is filed within two-years [sic] of the petitioner becoming aware that no appeal was filed despite his request that counsel do so.”

Florida Rule of Criminal Procedure 9.141(c)(4)(A) provides the relevant time limit to be applied to a petition seeking a belated appeal. It states in pertinent part:

(A) A petition for belated appeal shall not be filed more than 2 years after the expiration of time for filing the notice of appeal from a final order, unless it alleges under oath with a specific factual basis that the petitioner

(i) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and

(ii) should not have ascertained such facts by the exercise of reasonable diligence.

Here, Petitioner’s own assertions demonstrate that, within the two-year window for seeking a belated appeal, he learned that no appeal had been filed. Petitioner alleges that he was sentenced on September 12, 2005. Thus, he had thirty days from this date (i.e., until October 12, 2005) to file a timely notice of appeal. When no appeal was filed, rule 9.141(c)(4)(A) became applicable. The rule allows two years from the “expiration of time for filing the notice of appeal” to file a petition for a belated appeal. Thus, Petitioner had until October 12, 2007, to file a timely petition for belated appeal.

According to Petitioner, he learned that defense counsel had failed to file a notice of appeal on September 25, 2007, seventeen days prior to the expiration of the two-year window. Petitioner has failed to offer any basis for concluding that he could not have filed a timely petition for belated appeal.¹

Accordingly, the instant is DENIED.

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

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Notes:

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TOMMY LEE JONES, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-523.

District Court of Appeal of Florida, Second District.

Opinion filed March 20, 2009.

Appeal from the Circuit Court for Lee County, Mark A. Steinbeck, Judge.

James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

Jones appeals his convictions pursuant to jury verdicts of possession of marijuana and driving while license suspended (DWLS). The jury also found Jones guilty of possession of MDA, but the trial court withheld adjudication on that count. We find no merit in Jones’ argument on appeal and affirm his convictions. However, we reverse the order of probation because it does not conform to the trial court’s oral pronouncement of disposition.

Sentencing was conducted at the conclusion of the jury trial. The jury found Jones guilty of possession of marijuana, possession of MDA, and DWLS. The trial court withheld adjudication on the possession of MDA count and placed Jones on two years’ probation for that charge. The court adjudicated him on the remaining two counts and placed him on one year of probation for each count. All terms were to run concurrently for a total probationary term of two years. The order of probation, however, states that Jones pleaded guilty to one count of possession of a controlled substance and was placed on three years’ probation. Accordingly, we remand with directions that the order of probation be corrected to conform to the trial court’s oral pronouncement. See Thomas v. State, 742 So. 2d 508 (Fla. 2d DCA 1999).

Affirmed but remanded for correction of probation order.

NORTHCUTT, C.J., and LaROSE, J., Concur.

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

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ALEXANDER W. MYERS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-2926.

District Court of Appeal of Florida, Fifth District

Opinion filed March 20, 2009.

3.800 Appeal from the Circuit Court for Citrus County, Patricia V. Thomas, Judge.

Alexander W. Myers, Malone, pro se.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Alexander W. Myers appeals from the summary denial of his motion to correct illegal sentences, filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. The State concedes that the denial order must be reversed with directions that the trial court either correct Myers’ sentences or attach to its denial order portions of the record which demonstrate that Myers is not entitled to relief. See, e.g., Bean v. State, 949 So. 2d 1207, 1208 (Fla. 4th DCA 2007) (“In denying a legally sufficient 3.800(a) motion, the trial court’s failure to attach portions of the record refuting the defendant’s claim is reversible error, and the state cannot cure this error by providing the records to this court on appeal.”) (citation omitted).

Although the body of the order references record attachments, no portion of the record was attached to the order. Accordingly, we reverse and remand with directions that the trial court either correct Myers’ sentences or support its denial with record attachments refuting Myers’ claims.

REVERSED and REMANDED.

SAWAYA, MONACO and LAWSON, JJ., concur.

Courtesy of David Edelstein

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