Florida Criminal Law Opinions

ELWOOD STALEY, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 1D08-1863. District Court of Appeal of Florida, First District. Opinion filed April 30, 2009.Petition Seeking Belated Appeal — Original Jurisdiction.

Elwood Staley, pro se, Petitioner.

Bill McCollum, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

ORDER ON PETITION SEEKING BELATED APPEALElwood Staley petitions for a belated appeal of a judgment and sentence of the Washington County Circuit Court. He alleges in his sworn petition that he relied on his trial counsel’s assurances that a timely notice of appeal would be filed, only to discover after the time had expired for seeking review that an appeal had not been initiated. We take this opportunity to outline the procedure the court will now follow in instances such as this, where a petition for belated appeal presents a facially sufficient claim for relief grounded on the alleged ineffectiveness of trial counsel.¹

Until now, when a petition seeking belated appeal was found to materially comply with the procedural requirements of Florida Rule of Appellate Procedure 9.141(c) and substantively stated a preliminary basis for relief, our uniform practice was to issue an order directing the Attorney General to show cause why the petition should not be granted. That procedure has proven to be efficient in circumstances where the claim relates to a matter apparent from the record or where the claim does not involve issues directly related to the proceedings in the lower tribunal or its participants, and we intend to continue to utilize it in cases of that sort.²

On the other hand, this process is not particularly efficient or economical in the more common situation in which it is alleged that the fault for failing to timely appeal is attributable to some act or omission on the part of trial counsel. Where those allegations are facially sufficient to demonstrate an entitlement to relief, the state is obligated to show the existence of a good-faith basis for disputing petitioner’s factual allegations before an evidentiary hearing will be ordered. Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998). Thus, the process we have employed to date required the Attorney General’s staff to contact defense counsel who might be distantly situated and with whom it has little or no prior professional relationship. These obstacles of distance and unfamiliarity, which in most cases would not similarly hinder the local State Attorney, often delayed a determination of whether the state could show a good-faith basis to dispute the claim. Only after such a showing was made by the Attorney General would we relinquish jurisdiction to the lower tribunal to conduct an evidentiary hearing and issue a report and recommendation.

Recognizing that, as applied to cases of this sort, our current procedure may result in unnecessary difficulties and delays in resolving these relatively simple claims, we have elected to revise that procedure to streamline and simplify the disposition of these cases. Henceforth, when we determine that a petition for belated appeal grounded on the alleged actions or inactions of trial counsel is legally sufficient, we will at that point relinquish jurisdiction to the lower tribunal for the purpose of appointing a special master to issue an order to show cause directed to the State Attorney,³ conduct an evidentiary hearing if warranted by the state’s response, and issue an appropriate report and recommendation concerning the petitioner’s entitlement to a belated appeal. We anticipate that this course of action will minimize needless delays by immediately involving in the fact-gathering process the participants in the underlying proceedings, and our expectation is that, absent some extraordinary circumstances, necessary proceedings can be conducted and a report and recommendation issued within 60 days. In most cases, prosecutors and defense counsel in the trial court will enjoy some level of professional familiarity and rapport, which we trust will simplify and speed the process of determining whether a good-faith basis exists to dispute the factual allegations on which the claim for belated appeal is based. If no such dispute exists, the state can promptly make that known, and an appropriate report and recommendation can be forwarded to this court.

On the other hand, if the need for an evidentiary hearing is shown, the special master will be in the best position to manage the logistics of conducting such a hearing and producing a timely report and recommendation. Because local practices and customs differ in the six judicial circuits under our jurisdiction, our intent is to permit the lower tribunal significant discretion in fashioning the particular means by which the proceedings below are conducted, provided those means recognize and protect the due process interests of the parties.

Accordingly, and in light of our determination that the particular petition in this case states a preliminary basis for relief, jurisdiction is hereby relinquished to the trial court for a period of 60 days. A copy of the petition seeking belated appeal is provided to the trial court as an attachment to our order, and the Chief Circuit Judge is requested to appoint a special master to serve as a commissioner of this court for the purpose of directing the state to show cause why the petition should not be granted, conducting an evidentiary hearing if deemed warranted pursuant to Schubert, and issuing a report and recommendation setting forth findings of fact and conclusions of law regarding petitioner’s entitlement to a belated appeal in Washington County Circuit Court case number 06-000221-CF-MA. The report and recommendation shall be issued no later than 60 days from the date hereof, and copies shall be served on the clerk of this court, the petitioner, the State Attorney, and the Attorney General. Any party adversely affected by the special master’s conclusion may file a response within 10 days following service of the report and recommendation and the other party may reply within 10 days of service of the response. The court will thereafter issue its order determining whether petitioner is entitled to a belated appeal.

HAWKES, C.J., PADOVANO and ROBERTS, 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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BRYNN SERMON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-1167. District Court of Appeal of Florida, First District. Opinion filed April 30, 2009.An appeal from the Circuit Court for Leon County, Kathleen Dekker, Judge.

Todd P. Resavage of Brooks, LeBoeuf, Bennett, Foster & Gwartney, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Charlie McCoy, Special Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

WOLF and BROWNING, JJ., CONCUR; BENTON, J., CONCURS WITH OPINION.

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

BENTON, J., concurring.

All the judges involved in this case have done their duty as they (and I) understand it. Yet Brynn Sermon has been sentenced to life in prison “day for day” by legislative fiat, § 775.082(9), Fla. Stat. (2007), without a single judge’s deciding that a punishment so onerous was fitting for any of the crimes the appellant committed on July 20, 2007. See State v. Cotton, 769 So. 2d 345, 358 (Fla. 2000) (Quince, J., dissenting) (explaining that, under the prison releasee reoffender provisions, the “courts have been totally excluded from exercising their traditional role as sentencers”).

On July 20, 2007, he argued with Dontavia Kenon, first over the telephone, then in person at and in her apartment, where things got physical. His contact that day with Ms. Kenon, the 20-year-old mother of one of his children, violated the injunction against domestic violence she had obtained five weeks earlier, in the company of Trachell Cotton, a counselor with the Children’s Home Society to whom the Department of Children and Family Services had referred her.

For violating the injunction, he was sentenced to 206 days in county jail, the same sentence he received for simple battery. He received a third, concurrent sentence for simple assault. (He was originally charged with assault with a deadly weapon: There was testimony that Ms. Kenon grabbed a kitchen knife that he wrested from her, then handed off to one of her girl friends.) Fortunately, as far as the record reveals, neither she nor he suffered cuts, bruises or any other lasting, physical injury.

But there was still another charge. When Ms. Kenon and two of her girl friends arrived at her apartment after work on July 20, 2007, Mr. Sermon emerged from the apartment; and, in the course of the subsequent scuffle, both ended up back inside. On account of this, the information charged him with burglary of a dwelling and committing assault and battery in the course of the burglary, which “is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082.” § 810.02(2)(a), Fla. Stat. (2007).

Section 775.082 provides that “a prison releasee reoffender . . . is not eligible for sentencing under the sentencing guidelines and must be sentenced” for a burglary like appellant’s “by a term of imprisonment for life.” § 775.082(9)(a)3.a., Fla. Stat. (2007). See Knight v. State, 808 So. 2d 210, 212-13 (Fla. 2002). Mr. Sermon qualifies as a “[p]rison releasee reoffender” because the burglary on July 20, 2007, occurred “within 3 years after being released from a state correctional facility.” § 775.082(9)(a)1.q., Fla. Stat. (2007). (His initial, recently ended incarceration had been for sale and possession of cocaine.) He defended the burglary charge on the theory that Ms. Kenon had consented to his entry into the apartment. She did, indeed, so testify at trial. The state did not call her as a witness, but she testified for the defense that Mr. Sermon had slept in the apartment the night before he was arrested and for several nights before that; that he had a key to the apartment, and kept his clothes in the apartment; that he had her permission to be inside that day, that she never told him otherwise and that she had no problem with his going back inside.

The state’s only rebuttal witness was Joe Alexander, one of the policemen who arrived in response to Ms. Kenon’s telephoned plea for help on July 20, 2007. He testified that Ms. Kenon told him then that Mr. Sermon had never lived with her at that address and that he was not supposed to have the key. In the main case, her girl friends had testified to his chasing her around the yard and striking her. In response to the defense motion for judgment of acquittal on the burglary charge, the state argued and the trial judge ruled that it was a question for the jury whether to believe Ms. Kenon’s trial testimony or to find from other evidence that on the day in question she did not consent to Mr. Sermon’s (re)entry after he had slapped her and she had fled from him. Today we affirm the burglary conviction and thus the trial judge’s rulings denying the motion for judgment of acquittal at the close of the state’s case, and when renewed at the close of all the evidence.

Brynn Sermon’s life sentence stands undisturbed. But, although not for us to answer, the question of how carefully the Legislature thought through all the ramifications of the minimum mandatory sentences it prescribed for prison releasee reoffenders lingers.

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Maria Rubi Castrillon, Appellant,
v.
The State of Florida, Appellee. No. 3D09-522. District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Dava J. Tunis, Judge, Lower Tribunal No. 94-18443.

Mavel Ruiz, for appellant.

Bill McCollum, Attorney General, for appellee.

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

COPE, J.

This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, wherein Maria Rubi Castrillon seeks to vacate her plea on the ground that she was not warned of the deportation consequences of the plea. We affirm, but grant leave to amend.

Through counsel, Maria Rubi Castrillon filed a rule 3.850 motion alleging that in 1994, she entered a nolo contendere plea to grand theft, credit card fraud, and credit card forgery. The court withheld adjudication, imposed three years of probation, and ordered defendant-appellant Castrillon to pay restitution.

The defendant filed her postconviction motion pursuant to State v. Green, 944 So. 2d 208 (Fla. 2006). She alleges that the trial court did not advise her of the deportation consequences of the plea, that she would not have accepted the plea if properly advised, and that the plea renders the defendant subject to deportation. The motion is supported by affidavit. The motion states that the transcript of the plea colloquy is unavailable.

The trial court denied relief stating in part:

1. The motion fails to provide any immigration information that would demonstrate that the defendant is a legal immigrant and therefore, subject to deportation solely because of the conviction she is seeking to vacate. The motion does not state basic immigration information, such as the defendant’s alien registration number, date and place of birth and date and port of entry into the United States.

This part of the trial court order is in error. We have summarized Green as follows: Under Green, a motion to vacate a plea must allege that: (1) the trial court did not advise the defendant of the deportation consequences at the time of the plea; (2) the defendant would not have accepted the plea if properly advised; and, (3) the plea renders the defendant subject to deportation[.]

State v. Gaston, 960 So. 2d 803, 804-05 (Fla. 3d DCA 2007).

The defendant’s motion complied with item (3) by alleging that she is subject to removal on account of the 1994 plea. She also alleges that there are no other grounds for deportation.

The Green decision does not require that the defendant plead the additional immigration information set forth in paragraph one of the trial court’s order, such as alien registration number, so the motion should not have been denied on that basis. The court does have the discretion, however, to order the defendant to provide this additional information to the State so that the State has a fair opportunity to file an informed response to the motion.

The second basis for dismissal was:

2. The motion does not meet a requirement of State v. Green, 944 So. 2d 208 (Fla. 2006), in that the motion does not state how the defendant will meet her burden of proving that the trial court did not advise her that the plea might subject her to deportation, if she is not a United States citizen.

The trial court’s ruling on this point is correct. The Green decision states, in part:

Further, the defendant must state in the rule 3.850 motion how he or she will prove that the immigration warning was not given. In the normal case, this will require the defendant to allege that a hearing transcript will demonstrate a violation of rule 3.172(c)(8).

Green, 944 So. 2d at 218. In this case the defendant’s motion revealed that no transcript is available. Where that is the case, Green requires the defendant to include in the motion a statement of how the defendant intends to prove that the immigration warning was not given.

Because this is a defect which can be cured by filing an amended motion, we affirm the order of denial but grant the defendant leave to file an amended motion within thirty days of the issuance of our mandate, Spera v. State, 971 So. 2d 754 (Fla. 2007),^* which deadline may be extended, if necessary, for good cause shown. See Fla. R. Crim. P. 3.050; Rodriques v. State, 980 So. 2d 1203, 1205 (Fla. 4th DCA 2008). The amended motion will relate back to the date of filing the original motion.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Yileymi Suarez, Appellant,
v.
The State of Florida, Appellee. No. 3D09-449. District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge, Lower Tribunal No. 01-4855.

Yileymi Suarez, in proper person.

Bill McCollum, Attorney General, for appellee.

Before COPE, RAMIREZ, and ROTHENBERG, JJ.

COPE, J.

This is an appeal of an order denying an extension of time for filing a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

Defendant-appellant Yileymi Suarez was convicted at trial of vehicular homicide and sentenced to imprisonment. Suarez v. State, 879 So. 2d 1251 (Fla. 3d DCA 2004). Her petition for review in the Florida Supreme Court was denied on January 31, 2005. Her two-year time limit for filing a rule 3.850 motion expired on January 31, 2007.

The defendant filed her motion for extension of time on August 14, 2008. She alleged that she was having difficulty obtaining documents from her trial counsel. The trial court denied the motion and the defendant has appealed.

The trial court denied the motion on the theory that the defendant was required to file her motion for extension of time prior to the expiration of the two-year deadline of rule 3.850. We respectfully disagree with that part of the trial court’s order.

The Florida Supreme Court has held that the deadline for filing a rule 3.850 motion may be extended under rule 3.050. Under rule 3.050(1), the time period may be enlarged for good cause if the defendant files the extension request prior to the expiration of the two-year period. State v. Boyd, 846 So. 2d 458, 460 (Fla. 2003). Under the facts of Boyd, rule 3.050(1) was the relevant provision.

The Fourth District has explained that rule 3.050(2) allows a motion for extension to be filed after the two-year deadline. Parker v. State, 907 So. 2d 694, 695 (Fla. 4th DCA 2005). Under subdivision (2), there is a more stringent standard. The defendant must show both good cause and that “the failure to act was the result of excusable neglect . . . .” Id.; Parker, 907 So. 2d at 695.

In the present case, the defendant’s motion did not address the issue of excusable neglect. We therefore affirm the order now before us. This ruling is without prejudice to the defendant to refile the motion if she has a good faith basis for asserting good cause and excusable neglect.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Omar Vaughn Salmon, Appellant,
v.
The State of Florida, Appellee. No. 3D09-295. District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge, Lower Tribunal No. 05-6337.

Omar Vaughn Salmon, in proper person.

Bill McCollum, Attorney General, for appellee.

Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.

SUAREZ, J.

Omar Vaughn Salmon appeals from the trial court’s summary denial of his motion to correct an illegal sentence, incorrectly styled as a Florida Rule of Criminal Procedure 3.850 motion by the defendant. The defendant filed this petition in Miami-Dade County Circuit Court, and maintains that this Court should have ordered his Miami-Dade County prison term to run concurrent with his prison term in Broward County. The Miami-Dade County Circuit Court correctly determined from the record that the Miami-Dade County sentence was entered two years prior to the sentence entered in Broward County, and thus the Miami-Dade County court has no jurisdiction over the Broward County sentence. The proper forum for this motion is in Broward County.

We remand with instructions that the trial court dismiss this action as incorrectly filed, without prejudice to the defendant to refile in Broward County.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Donna Marie Blackman, Appellant,
v.
The State of Florida, Appellee. No. 3D09-69. District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Diane Ward, Judge, Lower Tribunal No. 93-32848.

Donna Marie Blackman, in proper person.

Bill McCollum, Attorney General, for appellee.

Before GERSTEN, C.J., and COPE and SUAREZ, JJ.

PER CURIAM.

Affirmed. See Fla. R. Crim. P. 3.850(b).

COPE, J. (concurring).

Ms. Blackman wrote to the trial judge, requesting that the judgment in her case be vacated. Ms. Blackman’s case bears a 1993 case number, and it appears from the letter that she has completed her sentence. The letter also contained a phrase in which she asked to seal her record.

The trial court treated the letter as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and denied it as untimely. I concur in the affirmance on that basis. As Ms. Blackman claims actual innocence, her only avenue of relief from the conviction would be by application to the Pardon Board.

In her notice of appeal (which the trial court did not see), Ms. Blackman included argument making clearer that she wishes to have her criminal record sealed. In order to pursue that relief, Ms. Blackman must submit a petition to seal or expunge on the appropriate forms contained in Florida Rule of Criminal Procedure 3.989, and follow the requirements of Rule 3.692. The requirements include obtaining a certificate of eligibility from the Florida Department of Law Enforcement. See §§ 943.0585, 943.059, Florida Statutes (2008). It is impossible to determine from Ms. Blackman’s letter whether she is, or is not, eligible for sealing or expunction. No useful purpose would be served by a remand for the trial court to consider this issue, because the claim has not been properly pled.

Not final until disposition of timely filed motion for rehearing.

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D.W.E., a minor child, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-891. District Court of Appeal of Florida, Second District. Opinion filed April 29, 2009.Appeal from the Circuit Court for Pinellas County, Ray E. Ulmer, Jr., Judge.

James Marion Moorman, Public Defender, and Robert Augustus Harper, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

D.W.E. appeals his adjudication as a delinquent and his disposition, challenging only the restitution order. The trial court awarded restitution in the amount of $1990 to the victim of D.W.E.’s burglary. This award was based, in part, on the victim’s testimony about damage to a window, in which the victim stated: “Well, we had it just bolted shut and the gentleman estimated $220 for it.” This testimony was admitted over a proper objection that the gentleman’s estimate was hearsay. Without this testimony, there was no evidence to support this element of the award of restitution.

Accordingly, we reverse the restitution award and remand for a new restitution hearing. In light of additional issues raised before the trial court at this restitution hearing in early 2008, we suggest that the trial court consider the following recent decisions at the next restitution hearing. See Malarkey v. State, 975 So. 2d 538 (Fla. 2d DCA 2008) (holding that restitution cannot be based on items not referred to in information, arrest warrant, or state’s original discovery materials); J.A.B. v. State, 993 So. 2d 1150 (Fla. 2d DCA 2008) (explaining that when ordering restitution from an unemployed juvenile, court must determine what the child may reasonably be expected to earn upon finding suitable employment and must base the restitution amount on those expected earnings).

Affirmed in part, reversed in part, and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

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

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FRANCISCO TORRES, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-3369. District Court of Appeal of Florida, Fourth District. April 29, 2009.Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Martin Bidwill, Judge, L.T. Case No. 00-6043CF10A.

Francisco Torres, Indiantown, pro se.

Bill McCollum, Attorney General, Tallahassee and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals the summary denial of his motion for post conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850. He raises three issues, one of which we find has merit. He argues that the trial court erred in summarily denying the motion, which alleged his counsel had been ineffective in allowing him to be tried in full shackles, without an evidentiary hearing. We agree and reverse.

His motion alleges that his attorney failed to challenge the trial court’s determination that the defendant be tried wearing full shackles and handcuffs, which were both heard and seen by the jury. He references the following portion of the trial transcript:

Defense Counsel: It is within your discretion. Will you permit him to be unshackled?

Court: No, sir.

Defense Counsel: Okay

Court: Anything further?

Defense Counsel: No.

(Thereupon, the following proceedings were resumed within the hearing of the prospective jury panel) Court: Mr. Torres, will you please stand up? . . . Standing to Mr. Bellis right is the Defendant, Francisco Torres . . . .

The trial court adopted the State’s response to support its summary denial of the defendant’s motion. In that response, the State argued that the record failed to prove the jury actually saw the defendant in shackles. Alternatively, the State argued the trial court was justified in keeping the defendant shackled.¹ And lastly, the State argued that the defendant could not establish the requisite prejudice.

Strickland v. Washington, 466 U.S. 668 (1984) is the landmark case establishing the two-pronged test for a claim of ineffective assistance of counsel. First, the defendant must show that his counsel’s performance was deficient. Second, the defendant must establish that counsel’s deficient performance prejudiced him by depriving him of a fair trial. Id. at 687-697.

A summary denial of a motion for post-conviction relief will be affirmed only when the trial court either states “its rationale in the order denying relief or attach[es] portions of the record that would refute the claims.” Nixon v. State, 932 So. 2d 1009, 1018 (Fla. 2006). When the record does not refute the defendant’s claims and no evidentiary hearing is held, the trial court must accept the defendant’s factual allegations as true. Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000); Hodges v. State, 946 So. 2d 1244 (Fla. 4th DCA 2007).

A defendant cannot be compelled, over objection, to stand trial in shackles unless necessary to prevent an escape, a disturbance, or potential injury. Deck v. Missouri, 544 U.S. 622, 626-32 (2005); Weaver v. State, 894 So. 2d 178, 193 (Fla. 2004). If an objection is made by the defendant, the trial court must state on the record why the restraint is necessary or hold a separate evidentiary hearing. Bello v. State, 547 So. 2d 914, 918 (Fla. 1989); Brown v. State, 856 So. 2d 1116, 1117 (Fla. 4th DCA 2003).

Here, the defendant alleged that the jury saw him in shackles and that defense counsel failed to properly object and request that the court make the requisite findings to justify the use of shackles. Neither the State’s response nor the brief record provided refute the defendant’s allegation that the jury did see the defendant in shackles and handcuffs or that defense counsel’s performance was deficient resulting in prejudice.

Perhaps other portions of the record may establish that defense counsel did everything possible to prevent the defendant from being shackled or that no prejudice resulted. Obviously, if the jury did not see the defendant in shackles, there is no prejudice. However, neither the trial court nor the State has provided those portions of the record. We find no merit in the other two issues raised.

We therefore reverse and remand the case to the trial court to hold an evidentiary hearing or attach portions of the record justifying its denial of the defendant’s motion for post-conviction relief, limited to the claim concerning the defendant being shackled.

Reversed and Remanded.

WARNER and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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ANGEL VIDAURRE, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-3199. District Court of Appeal of Florida, Second District. Opinion filed April 29, 2009.Appeal from the Circuit Court for Pinellas County, Philip J. Federico, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Angel J. Vidaurre appeals an order revoking his community control for three separate offenses and the three concurrent sentences imposed in connection with that revocation. We affirm the order revoking his community control. We also affirm the sentences for unlawful sexual activity with a minor and possession of a firearm by a convicted felon. We reverse the sentence for possession of cocaine because, as the State correctly concedes, Mr. Vidaurre’s term of probation had expired long before he was alleged to have violated his probation as to that third-degree felony.

In 1999, the State charged Mr. Vidaurre by information with two second-degree felonies, unlawful sexual activity with a minor and possession of a firearm by a convicted felon, and with one third-degree felony, possession of cocaine. On June 26, 2001, Mr. Vidaurre entered a no contest plea to all three offenses. He was sentenced to ten years’ probation for the second-degree felonies and to five years’ probation for the offense of possession of cocaine. He was thereafter found to have violated the terms of his probation four times, and his probation was continued after each violation.

On September 25, 2007, an affidavit was filed alleging that Mr. Vidaurre had violated his probation a fifth time. On September 28, 2007, the trial court found that Mr. Vidaurre violated his probation and sentenced him to two years’ community control. The order of community control purported to apply to all three offenses even though the term of probation for the offense of possession of cocaine had expired in June 2006. Thereafter, on May 16, 2008, he was found to have violated his community control and was sentenced to three concurrent terms of imprisonment for eighty-four months.

“A violation of probation must be set in motion prior to the termination of the period of probation.” Jones v. State, 954 So. 2d 675, 676 (Fla. 4th DCA 2007); see also § 948.04(2), Fla. Stat. (2001); State v. Wimberly, 574 So. 2d 1216, 1217 (Fla. 2d DCA 1991) (“A trial court lacks jurisdiction to revoke probation for violations which occur during the period of probation unless the revocation process is set in motion during the probationary period.”). Here, in light of his scoresheet, Mr. Vidaurre’s probationary term could have been longer than five years, but it ended in June 2006 because the trial court continued his probationary term instead of extending it. Since the next violation of probation was not set in motion before the period of probation ended, the trial court lacked jurisdiction to find Mr. Vidaurre in violation of his probation on September 28, 2007. See Jones, 954 So. 2d at 676. The eighty-four month terms of imprisonment for the other two offenses are substantial downward departure sentences and are unaffected by this error.

Affirmed in part; reversed in part; and remanded.

DAVIS and SILBERMAN, JJ., Concur.

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

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Evans Reese, Appellant,
v.
The State of Florida, Appellee. No. 3D08-3189. District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge, lower Tribunal No. 94-39462.

Evans Reese, in proper person.

Bill McCollum, Attorney General; Katherine Fernandez Rundle, State Attorney, and Penny H. Brill, Assistant State Attorney, for appellee.

Before ROTHENBERG, LAGOA, and SALTER, JJ.

ROTHENBERG, J.

Evans Reese (“Reese”), a frequent appellant in this Court,¹ makes yet another appearance regarding a 1994 case in which he was convicted of two counts of armed robbery. Reese is now appealing the trial court’s denial of his motion to compel the State Attorney’s Office to release all written statements and depositions by Nelson Lopez and Arnold Guerra pursuant to his public records request filed on September 29, 2006. The operative facts are as follows.

On or about September 29, 2006, Reese sought a copy of the entire prosecutor’s file in the instant case. On January 8, 2007, the State Attorney’s Office sent Reese “a true and correct copy of the State Attorney’s file,” along with a cover letter encouraging him to contact Avilio Alfonso, the records specialist with the Miami-Dade County State Attorney’s Office, if he needed further assistance. On July 18, 2008, approximately one-and-a-half years later, Reese sent a letter to the State Attorney’s Office alleging that he had not received certain requested depositions and discovery. The State responded that it had sent him a complete copy of the file and that pursuant to statutory authority, the file had been destroyed. In response, Reese filed a motion to compel the production of these materials, which was denied by the trial court.

Because we find no error, we affirm. The State sent Reese a copy of his file in January of 2006. Pursuant to section 119.021(2), Florida Statutes (2007),² the file was destroyed in 2007, thereby making it impossible for the trial court to grant Reese’s motion to compel its production.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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