Florida Criminal Law Opinions

JOSHUA ELIJAH SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-3085. District Court of Appeal of Florida, Fourth District. April 29, 2009.Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Larry Schack, Judge, L.T. Case Nos. 562007CF001840A and 562007CF002088A.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Joshua Elijah Smith appeals following the revocation of his probation and sentencing in case numbers 562007CF001840A and 562007CF2088A. Appellate counsel has filed an Anders brief pointing out two minor sentencing errors regarding the public defender’s fees and application fees imposed. Anders v. California, 386 U.S. 738 (1967).

At sentencing, appellant agreed that a $500 public defender fee and a $40 fee for the application for a public defender on each case was acceptable. The court orally imposed a $500 public defender fee and a $40 application fee for each case. The written judgment in 562007CF001840A included the correct fee amounts, but the written judgment in 562007CF2088A, erroneously listed the public defender lien as $1,000 and the application fee as $80, double the amounts the court announced. In response to a rule 3.800(b)(2) motion and on appeal, the state agrees that this was error and that the written judgment should reflect the court’s pronouncement.

Appellate counsel also pointed out that Smith was not informed of his right to a hearing to contest the amount of fees. § 938.29(5), Fla. Stat. (2007); Fla. R. Crim. P. 3.720(d). The state agrees that appellant should have an opportunity to file a written objection to the fees, and if an objection is filed, the trial court should hold a hearing on this issue; if no written objection is filed, the court may reimpose the fees without a hearing. McGee v. State, 963 So. 2d 931, 932 (Fla. 2d DCA 2007); Jerry v. State, 955 So. 2d 668 (Fla. 4th DCA 2007); Pride v. State, 944 So. 2d 1243 (Fla. 1st DCA 2006).

Accordingly, appellate counsel’s motion to withdraw is granted, and the public defender’s fees are stricken. On remand, if Smith files a written objection to the amount of the fees within thirty days of this court’s mandate, the trial court shall hold a hearing. Hayes v. State, 957 So. 2d 97 (Fla. 2d DCA 2007). If no written objections are filed, the court may reimpose the $500 lien and the $40 application fee for each case as pronounced at the sentencing hearing. The revocation of probation and sentences are otherwise affirmed.

STEVENSON, HAZOURI and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DIANA K. THAR, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-1331. District Court of Appeal of Florida, Second District. Opinion filed April 29, 2009.Appeal from the Circuit Court for Lee County, Thomas S. Reese, Judge.

James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Diana K. Thar appeals her judgment and sentence for grand theft specifically challenging the trial court’s order setting restitution and order denying her motion for rehearing on the order setting restitution. Because there is nothing in the record to show that Thar received actual notice of the restitution hearing and because the trial court failed to allow her to testify to that effect at the hearing on her motion for rehearing, we reverse the order of restitution and remand for the trial court to reconsider the issue of restitution after conducting a properly noticed evidentiary hearing at which Thar has an opportunity to be heard.

Thar entered a plea of no contest to the charge of grand theft. In imposing sentence, the trial court placed Thar on probation and reserved the right to set restitution at a later date. A restitution hearing was held on January 28, 2008. Thar was not present at this hearing, but her counsel, who was present, informed the court that he had left a message at Thar’s last known telephone number, advising her of the hearing. The State presented evidence on the amount of restitution, and the trial court ruled that Thar’s failure to appear constituted a default and that Thar had waived her opportunity to attend the restitution hearing and to contest the imposition of the restitution order. The trial court then orally imposed restitution in the amount of $1655. The amount was noted on the minutes from the hearing and signed by the judge.

On February 18, 2008, Thar moved for a rehearing on the restitution amount. Thar’s written motion indicated that Thar’s counsel had received notice of the hearing but that he had not forwarded that notice to her by mail because counsel did not have a current address for Thar. The motion further stated that counsel had left two telephone messages regarding the hearing at a number he had previously used to reach Thar but that Thar “contacted the undersigned attorney after the restitution hearing had been concluded and advised that she did not receive notice of the hearing since the telephone number was no longer hers.” On February 20, 2008, the trial court conducted a hearing on the motion for rehearing. The trial court asked defense counsel if he had any evidence that the telephone number no longer belonged to Thar. When defense counsel replied that Thar could testify to that fact, the trial court indicated that it would not accept her testimony but wanted “independent proof.” The court then denied the motion. This denial was also noted on the minutes for the hearing¹ and signed by the judge.

“[U]nless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence.” Baker v. State, 979 So. 2d 453, 455 (Fla. 2d DCA 2008). Such a waiver “may be express, or it may be implied from the defendant’s voluntary absence.” Id.

In the instant case, the State presented no evidence that Thar voluntarily waived her presence at the hearing. This combined with the trial court’s refusal to allow Thar to testify at the hearing on her motion for rehearing left the record silent on the issue of the voluntariness of her failure to appear. Furthermore, if the trial court was going to rely on the probationary requirement that Thar notify the State about her changes in address and telephone number, sworn evidence to that effect should have been presented. See C.Y. v. State, 989 So. 2d 1235 (Fla. 4th DCA 2008).

Accordingly, it was error for the trial court to find that Thar had waived her presence at the hearing and to set a restitution amount without allowing her the opportunity to be heard. We reverse the order of restitution and remand for the trial court to hold a new restitution hearing with proper notice to Thar.

Reversed and remanded.

SILBERMAN, J., and DAKAN, STEPHEN L., ASSOCIATE SENIOR JUDGE, Concur.

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

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Notes:

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Vernon Pittman, Appellant,
v.
The State of Florida, Appellee. No. 3D08-881 District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge, Lower Tribunal No. 77-4554

Vernon Pittman, in proper person.

Bill McCollum, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.

Before COPE, SUAREZ, and ROTHENBERG, JJ.

ROTHENBERG, J.

Vernon Pittman (“Pittman”) appeals the trial court’s order denying his petition for writ of habeas corpus premised on Pittman’s claim that the thirty-year sentence he received for a 1971 second degree murder conviction violated his due process and double jeopardy rights. Because Pittman raised these arguments in two previous motions, which were denied by the trial court, and affirmed by this Court on appeal, and the petition under review does not contain any new allegations, we affirm on the basis of collateral estoppel and/or law of the case. See State v. McBride, 848 So. 2d 287 (Fla. 2003).

Because the additional claims raised in Pittman’s brief were not raised below, they are not properly before this Court on appeal. We, therefore, decline to address them on appeal. See Harrell v. State, 894 So. 2d 935 (Fla. 2005); Robertson v. State, 829 So. 2d 901 (Fla. 2002).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Darron Hughes, Appellant,
v.
The State of Florida, Appellee. No. 3D08-78 District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge, Lower Tribunal No. 07-155

Kenneth P. Speiller, for appellant.

Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.

Before COPE, RAMIREZ and ROTHENBERG, JJ.

PER CURIAM.

Darron Hughes appeals his conviction for sale of cocaine within 1000 feet of a place of worship. We affirm.

Defendant-appellant Hughes argues that the trial court should have sustained a hearsay objection during trial. The defendant is correct.

The supervising detective testified at trial that after the drug transaction, the detective met with the confidential informant. The detective testified:

A: Yes. Well, before going to the police station, I had to debrief the confidential informant, and he said that — we asked him how the transaction went, and he said that the suspect had asked him to throw the money —

[DEFENSE COUNSEL]: Your Honor, hearsay again. He can’t repeat what someone else told him.

THE COURT: Overruled.

Q: Go ahead.

A: I asked him how the transaction went, and he said that the suspect asked him to throw the money on the ground. And then once he threw the money on the ground, the suspect placed the narcotics on top of the garbage can and told the confidential informant to take it off the garbage can.

The informant’s out-of-court statement to the detective was hearsay, and there is no applicable exception. See § 90.801(1)(c), Fla. Stat. (2007); Love v. State, 971 So. 2d 280, 286 (Fla. 4th DCA 2008). We are satisfied, however, that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). The confidential informant testified at trial regarding the same information.

As to the remaining point on appeal, we agree with the trial court that the State laid a proper foundation for the admission of the videotape into evidence. See Wagner v. State, 707 So. 2d 827 (Fla. 1st DCA 1998).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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BASIL BURFORD, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D07-4272. District Court of Appeal of Florida, Fourth District. April 29, 2009.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Pedro E. Dijols, Judge, L.T. Case No. 05-16088 CF10A.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

Ciklin, J.

Basil Burford appeals his convictions for manslaughter by culpable negligence, vehicular homicide, and fleeing a law enforcement officer. Burford argues that his convictions for manslaughter by culpable negligence and vehicular homicide (which is a lesser included offense of manslaughter by culpable negligence) violate double jeopardy. He further asserts that the trial court erred in denying his motion for new trial based upon the prosecutor’s closing arguments pertaining to Burford’s right to remain silent. We affirm the conviction for manslaughter by culpable negligence but vacate the conviction of vehicular homicide, the lesser of the two offenses. We affirm the denial of his motion for new trial because his objections were not adequately preserved, and, even if they had been, the prosecutor’s remarks were not a comment on the right to silence.

On September 20, 2004 around midnight, Officer Gino Serri was on road patrol in a marked police vehicle when he observed Burford operating an Acura without functioning taillights. Serri activated his lights and attempted to conduct a traffic stop. Burford initially stopped but then abruptly sped off as Officer Serri exited his vehicle. In his effort to elude the officer, Burford ran a red light and struck a pickup truck. The driver of the pickup truck died at the scene from blunt head trauma injuries.

An accident reconstructionist estimated that the Acura was traveling between sixty-four and sixty-six miles per hour in a thirty-five mile per hour speed zone.

The jury found Burford guilty of manslaughter by culpable negligence (count 1), vehicular homicide (count 2), and fleeing a law enforcement officer (count 3). The court adjudicated Burford guilty of all three counts and sentenced him to fifteen years on count 1 and five years on count 3 to run consecutively to count 1. The trial judge held “in abeyance” any sentence as to count 2. Burford appeals.

Double JeopardyVehicular homicide is a lesser included offense of manslaughter by culpable negligence. McCreary v. State, 371 So. 2d 1024, 1027 (Fla. 1979); State v. Young, 371 So. 2d 1029, 1030 (Fla. 1979). As such, a defendant may be charged with, but not convicted of, both vehicular homicide and manslaughter for a single death. Lewek v. State, 656 So. 2d 268 (Fla. 4th DCA 1995). Michelson v. State, 927 So. 2d 890, 893-94 (Fla. 4th DCA 2005). A conviction for both vehicular homicide and manslaughter is not harmless error even where a sentence is not imposed for the lesser included offense and the lesser included offense is not scored on the guidelines scoresheet. Werhan v. State, 673 So. 2d 550, 553 (Fla. 1st DCA 1996).

Heck v. State, 966 So. 2d 515 (Fla. 4th DCA 2007), this court addressed a similar factual scenario. Heck was convicted of attempted premeditated first-degree murder and attempted first-degree felony murder. The trial court sought to avoid a double jeopardy problem by entering judgment for both convictions and withholding the imposition of sentence for the attempted felony murder conviction. This court held that where there is a single death, dual convictions cannot stand. “Allowing the dual convictions to stand and simply withholding the imposition of sentence for one of the offenses is not . . . sufficient to cure the double jeopardy violation as it is `the record of appellant’s conviction [that] constitutes the violation of double jeopardy.’” Id. at 517 (quoting Florida v. State, 855 So. 2d 109, 111 (Fla. 4th DCA 2003) overruled on other grounds, 894 So. 2d 941 (Fla. 2005)).

For this reason, Burford’s conviction for vehicular homicide must be vacated.

Prosecutorial CommentsBurford claims that the trial court erred in denying his motion for new trial because of comments made by the prosecutor during closing argument. Specifically, he complains about the following two statements:

(1) “You heard no evidence from that stand as to why he [Burford] decided to flee.”

(2) “Now, as far as the, you know, two conflicting stories in this case, which recently came up—”

The defense lodged no objection to the first comment. As to the second statement, the defense objected and moved to “strike the commentary.” The court sustained the objection and instructed the jury that “[w]hat the lawyers say is not evidence. Use your memory as to what the evidence is here.”

After the jury started deliberations, the defense moved for a mistrial on the grounds that the second comment amounted to an attack on the defendant’s right to remain silent. The court denied the motion.

“A motion for mistrial is directed to the sound discretion of the trial court, and should be granted only when necessary to ensure that the defendant receives a fair trial.” Miles v. State, 839 So. 2d 814, 819 (Fla. 4th DCA 2003). “In order to preserve an allegedly improper prosecutorial comment for review, a defendant must object to the comment and move for a mistrial. While a motion for mistrial may be made as late as the end of closing argument, a timely objection must be made in order to allow a curative instruction or admonishment to counsel.” Gutierrez v. State, 731 So. 2d 94, 95 (Fla. 4th DCA 1999) (citation omitted).

Burford failed to object to the first comment and, therefore, failed to preserve his challenge. Even if it were preserved, we find the comment is not fairly susceptible of being interpreted as a comment on Burford’s right to remain silent. The prosecutor argued to the jury:

Nowhere in here, ladies and gentlemen, and you heard this eluded [sic] to during the trial, does it say I have to prove why Mr. Burford decided to flee the law enforcement officer. The law does not require me to prove why he did that. You heard no evidence from that stand as to why he decided to flee. . . .I think you would agree that basically is irrelevant for those purposes.

Taken in its context, it is clear that the prosecutor was explaining to the jury the elements that it needed to prove to establish the offense of fleeing a law enforcement officer and clarified that the state did not need to prove why Burford fled.

As to the second comment, the only contemporaneous objection was to the prosecutor’s “commentary.” To be preserved for appellate review, “an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation.” Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). The court sustained the objection and gave a curative instruction. It was not until the jury had retired for deliberations that Burford first argued that it was a comment upon his right to remain silent. Burford presented this argument too late. Gutierrez, 731 So. 2d at 95. Even if his objection had been preserved, the statement is not fairly susceptible as a comment on the right to silence. Considered in context, the prosecutor was simply responding to the defense’s alternative theory that the driver of the pickup truck—and not Burford—had run the red light. The prosecutor argued that his theory was supported by the evidence and that Burford’s theory was not.

ConclusionWe affirm the conviction and sentence for manslaughter by culpable negligence and fleeing a law enforcement officer. For the reasons stated herein, we remand this case to the trial court with instructions to vacate the conviction for vehicular homicide.

Affirmed in part, reversed in part, and remanded.

Polen and Hazouri, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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ANICETO JAIMES, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-2482. District Court of Appeal of Florida, Second District. Opinion filed April 29, 2009.Appeal from the Circuit Court for Hendry County, Edward J. Volz, Jr., Judge.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

In July 2004, Aniceto Jaimes was involved in a barroom brawl that resulted in charges against him for aggravated battery with a deadly weapon on two victims and simple battery on a third. At trial in January 2007, the jury returned the following verdicts: count one, guilty as charged of aggravated battery with a deadly weapon on Michael Proctor; count two, guilty as charged of simple battery on John Hornsby; and count three, guilty of aggravated battery by causing great bodily harm on Richard Miller. Mr. Jaimes now appeals, raising two issues. First, he claims that he was found guilty in count three of aggravated battery by causing great bodily harm on Mr. Miller when the information did not charge him with causing great bodily harm. Second, he claims that the circuit court erred in sentencing him to concurrent terms of twenty-five years’ incarceration for the two counts of aggravated battery when the statutory maximum for this degree of crime is fifteen years. The State properly concedes error on the second issue, and we reverse his sentences for the two counts of aggravated battery. Although we recognize that it was error to convict Mr. Jaimes of aggravated battery by causing great bodily harm on Mr. Miller when that crime was not charged in the information, we affirm because defense counsel failed to preserve the issue for review on appeal. Defense counsel made no objection to the jury instructions or verdict form, and we conclude such error is not fundamental in Mr. Jaimes’s circumstances. See State v. Weaver, 957 So. 2d 586 (Fla. 2007).

We write briefly to explain the sentencing error, despite the State’s concession, hoping that in the future such errors will be avoided. On March 6, 2007, the circuit court sentenced Mr. Jaimes to concurrent terms of twenty-five years’ incarceration for the two counts of aggravated battery. Aggravated battery is a second-degree felony punishable by up to fifteen years. See § 784.045, Fla. Stat. (2004). Thus the sentences are an upward departure from the statutory maximum. The court explained at the sentencing hearing that this departure from the guidelines¹ was due to what the court believed was an escalating pattern of criminal behavior. Defense counsel filed a motion for resentencing, citing Florida Rule of Criminal Procedure 3.800(a), claiming that the court had neglected to put in writing its reasons for exceeding the statutory maximum. As grounds for this motion, counsel cited section 921.0016(3), Florida Statutes (2004), which was repealed effective October 1, 1998, by chapter 97-194, section 1, at 3674, Laws of Florida. Two days later, defense counsel filed a timely notice of appeal. On May 7, 2007, while the appeal was pending, the circuit court, citing the same repealed section mandating written reasons for departing from the guidelines, filed a “Sentencing Statement” explaining in writing its reasons for departing upward.

On April 15, 2008, appellate counsel filed an amended motion to correct sentencing error, this time citing rule 3.800(b), pointing out the clear error of sentencing Mr. Jaimes above the statutory maximum under the Criminal Punishment Code without sufficient justification.² The circuit court, recognizing its error, corrected the sentences to concurrent terms of fifteen years’ incarceration, but it did so on July 18, 2008, well beyond the sixty-day time limit for ruling. Thus its correction is a nullity. See Pearce v. State, 968 So. 2d 92 (Fla. 2d DCA 2007). Therefore, we must vacate the sentencing order filed on July 18, 2008.

Convictions affirmed, sentences on counts one and three reversed, and cause remanded for resentencing.

DAVIS and KELLY JJ., Concur.

CASANUEVA, J., Concurs with opinion.

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Notes:

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CASANUEVA, Judge, Concurring.

I fully concur with the court’s opinion. I write only to discuss the unpreserved issue that was raised in this appeal and its ramifications.

FactsMr. Jaimes was convicted following a jury trial of committing an aggravated battery on Richard Miller. The information charged the crime as follows:

Aniceto B. James, Sr. . . . did unlawfully commit a battery upon Richard Miller, by actually and intentionally touching or striking said person, against said person’s will, or by intentionally causing bodily harm to said person, and in committing said battery did use a deadly weapon, to-wit: wooden club or stick, contrary to Florida Statute 784.045.

Although section 784.045, Florida Statutes (2004), provides the offense of aggravated battery occurs when a defendant causes great bodily harm or uses a deadly weapon, the information here alleged only the use of a deadly weapon. However, the verdict form allowed the jury to chose between great bodily harm aggravated battery and deadly weapon aggravated-battery. The jury instructions tracked the verdict form rather than the information. Mr. Jaimes, through counsel, failed to object to either the jury instructions or the jury verdict form. By their verdict, the jury found Mr. Jaimes guilty of aggravated battery by causing serious bodily harm. He was not found guilty of aggravated battery by using a deadly weapon, the crime charged by the information.

AnalysisTo warrant relief, Mr. Jaimes must demonstrate that the unpreserved, unobjected-to jury instruction and verdict form are fundamental error; more specifically, that his conviction for the uncharged alternative theory of the offense of aggravated battery by great bodily harm constitutes fundamental error. “Instructions, however, are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred.” State v. Delva, 575 So. 2d 643, 644 (Fla. 1991); see also State v. Weaver, 957 So. 2d 586, 588 (Fla. 2007) (same); Reed v. State, 837 So. 2d 366, 370 (Fla. 2002) (same).

Following the rationale of Delva, Weaver, Reed, and this court’s analysis Sanders v. State, 959 So. 2d 1232 (Fla. 2d DCA 2007), it is clear that instructing the jury that the State could prove aggravated battery in count three by proving “great bodily harm”—where the State’s information charged aggravated battery in that count only by the use of a deadly weapon—was error. However, this error was not fundamental. In these instances, “fundamental error occurs only in those trials where the uncharged theory included in the jury instruction was actually relied upon by the State and was contested by the defense.” Jomolla v. State, 990 So. 2d 1234, 1238 (Fla. 3d DCA 2008) (citing Weaver, 957 So. 2d at 586).

Here, the record demonstrates that the State did not argue the “great bodily harm” theory to the jury for count three or introduce testimony concerning Mr. Miller’s injuries for that purpose. Rather, the testimony showed and the State argued that Mr. Jaimes committed aggravated battery only by using the club as a deadly weapon.

A final unpreserved issue about count three merits comment. The jury’s verdict indicates that it rejected the deadly weapon theory of aggravated battery on Mr. Miller and that Mr. Jaimes inflicted great bodily harm instead. The State’s evidence established that Mr. Jaimes struck Mr. Miller twice on the head, first with his fist, after which Mr. Miller staggered but was able to exit the bar, where Mr. Jaimes then hit him on the head with the wooden club or bat. The second strike opened a gash on Mr. Miller’s head which required stitches (staples) to close. Because the jury rejected the deadly weapon version, the remaining evidence on this count proved only a misdemeanor battery by the fist strike. Because the jury verdict on this count was not supported by the evidence, a postverdict motion for judgment of acquittal on this felony count pursuant to Florida Rule of Criminal Procedure 3.380 was in order, at least to reduce it to a misdemeanor battery offense. See State v. Shearod, 992 So. 2d 900 (Fla. 2d DCA 2008). Our record does not disclose that defense counsel made such a motion, either at trial or afterwards.

In summary, three opportunities to avoid error were missed: first, to instruct the jury correctly on the proper charge that the State levied against Mr. Jaimes in count three; second, to present the jury with a proper verdict form for count three; and third, to correct the result of the first two after the fact.

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

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Marco Guerra, Appellant,
v.
The State of Florida, Appellee. No. 3D07-2355 District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge, Lower Tribunal Nos. 02-33576; 03-2289

Peter Raben for appellant.

Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.

Before SHEPHERD, CORTIÑAS and SALTER, JJ.

PER CURIAM.

Defendant Marco Guerra appeals his adjudication of violation of probation in case number 02-33576, which was based on conduct that predated imposition of the probation sentence, and his sentence in case number 03-2289, a separate offense. We reverse.

On February 24, 2003, the defendant pled guilty to second degree grand theft in case number 02-33576 and was sentenced to five years probation. In early March, he was arrested and charged in case numbers 03-2288 and 03-2289 for offenses that occurred in January 2003.

Later in March 2003, a violation of probation affidavit was filed against the defendant in case number 02-33576. The affidavit charged him with violating probation in 02-33576 by committing a new offense in case numbers 03-2289 and 03-2288. However, the date of the offenses in these cases was January 15, and 13, 2003, respectively.

As the State properly concedes, a violation of probation cannot be based on conduct that predates the probation sentence. Dearing v. State, 388 So. 2d 296 (Fla. 3d DCA 1980); Malloy v. State, 380 So. 2d 501 (Fla. 2d DCA 1980); O’Steen v. State, 261 So. 2d 208 (Fla. 1st DCA 1972). We therefore vacate the violation of probation in 02-33576.

We also agree with the defendant’s contention that the entire “package sentence” needs to be reversed. The pleas were taken all at one time with the intention that the three cases be closed out. It is not for a reviewing court to speculate whether the defendant would have obtained an agreement to a more favorable “package” plea offer in 03-2288 and 03-2289 had it then been known that the alleged violation of probation was subject to dismissal. The defendant should be returned to his original position before the negotiated plea bargain. Geiger v. State, 532 So. 2d 1298, 1301 (Fla. 2d DCA 1988). This result requires the defendant to accept reinstatement of the charges in case number 03-2288 in order to return him “to the position that existed before the bargain,” and this occurs “outside the ambit of the speedy trial rule.” Id.

We therefore vacate the violation of probation in 02-33576, vacate the nolle pros and reinstate the charges in case number 03-2288, and vacate the plea and sentence in case number 03-2289. This cause is remanded for further proceedings consistent with this opinion.

Vacated and remanded.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Aundra Johnson, Appellant,
v.
The State of Florida, Appellee. No. 3D07-2145 District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal from the Circuit Court for Miami-Dade County, Julio Jimenez, Judge, Lower Tribunal No. 06-5955.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Magaly Rodriguez and Nicholas Merlin, Assistant Attorney General, for appellee.

Before COPE, RAMIREZ, and LAGOA, JJ.

LAGOA, J.

The appellant, Aundra Johnson (“Johnson”), appeals his conviction and sentence for fleeing a police officer.¹ For the following reasons, we affirm.

On appeal, Johnson raises three issues. We find only one argument merits discussion. Johnson contends that the trial judge erred in instructing the jury that the law did not permit him to read back testimony. Specifically, the trial court instructed the jury as follows:

Now let me caution you regarding the communication, if you want to ask a question regarding the facts, let me caution you that we don’t have I [sic] simultaneous transcript of these proceedings so we don’t have a transcript and any questions regarding the facts, I will tell you that you must rely upon your own recollection of the evidence.

Additionally, prior to the jury retiring to deliberate, the trial court again instructed the jury as follows:

Ladies and gentlemen and, again, if you have a question regarding the facts I cannot reopen the facts. I cannot explain the evidence to you. The normal answer that I give you is that you must rely upon your own recollection of the evidence. If you have differences of opinion you must hash them out amongst yourselves.

Florida Rule of Criminal Procedure 3.410, however, states as follows:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

“Under this rule, the trial court has wide latitude in the area of the reading of testimony to the jury. In this respect, the trial court may provide a limited, or partial, readback of testimony specifically requested by the jury, as long as that testimony is not misleading.” Avila v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001) (citations omitted).

In this case, the record shows that the issue was properly preserved for appellate review as Johnson specifically objected to the trial court’s instructions to the jury. As this Court has previously held, it is error for the trial court to discourage the jury from requesting a read-back of testimony. See Davis v. State, 760 So. 2d 977, 978 (Fla. 3d DCA 2000). Indeed, “[w]hile the trial court has the discretion to deny a jury’s request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited.” Avila, 781 So. 2d at 415.

Although the State concedes that the trial court erred in instructing the jury, the State argues that the error was harmless. Given the facts of this case, we agree that this error was harmless.² The evidence presented at trial was overwhelming as to the charge for which Johnson was convicted—fleeing a police officer.

A City of Miami officer, while on routine patrol in his police vehicle, overheard a BOLO that the police were involved in a chase of a blue van that had been involved in a burglary. After learning of the chase, the officer saw the blue van run through a red light at a high rate of speed. The officer proceeded to turn on the patrol car’s siren and emergency lights and began to chase the van. During the chase, the officer noticed that the tires of the van had blown out and eventually an individual, whom the officer at trial identified as Johnson, jumped out of the driver’s side of the van. After Johnson jumped out of the van, the officer exited his vehicle and proceeded on foot to chase Johnson. Eventually, after a struggle, Johnson was arrested.

Accordingly, for the foregoing reasons, we affirm Johnson’s conviction and sentence.

Affirmed.

RAMIREZ, J., concurs.

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Notes:

COPE, J. (dissenting).

We should order a new trial. Defense counsel timely and correctly objected to the trial court’s instruction. Neither the State nor the majority opinion has cited any authority for the proposition that this type of error is subject to harmless error analysis. Assuming arguendo that such an analysis could be applied, it is inappropriate here, where the jury had enough reasonable doubt about the State’s case to acquit the defendant on a number of charges.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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EDWARD ALVARADO, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D07-1670. No. 4D07-2774. District Court of Appeal of Florida, Fourth District. April 29, 2009.Consolidated appeals from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Joel T. Lazarus, Judge, L.T. Case No. 04-5825 CF10A & 05-9472 CF10A.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

Edward Alvarado appeals his prison sentences emanating from his convictions for sexual battery on a child under twelve years of age and lewd and lascivious molestation. Alvarado argues that the trial court erred in sentencing him as a habitual violent felony offender on the ground that his prior felony conviction for aggravated battery on a pregnant woman did not qualify as a violent felony offense under section 775.084, Florida Statutes (2005). He next asserts that imposing habitual violent felony offender and dangerous sexual felony offender sanctions, pursuant to section 794.0115, Florida Statutes (2005), constitutes an improper double enhancement and violated his right to substantive due process. We affirm the trial court’s sentences and write only to address the first issue.

Alvarado was charged with aggravated battery on a pregnant woman in violation of section 784.045(1)(b), Florida Statutes (2004). In July 2004, he entered a no contest plea and was adjudicated guilty. In 2005, he was charged by information with two counts of sexual battery on a child under twelve years of age (Counts I and II), two counts of lewd and lascivious molestation (Counts III and IV), and one count of lewd and lascivious exhibition (Count V). The State also announced that it intended to seek habitual violent felony offender (HVFO) sanctions, pursuant to § 775.084, Florida Statutes (2005), and dangerous sexual felony offender (DSFO) sanctions, pursuant to § 794.0115, Florida Statutes (2005).¹

After a jury trial on the 2005 charges, Alvarado was found guilty. During the sentencing hearing, the State elicited testimony offered to prove the evidentiary predicate for imposition of the HVFO sanctions. The State also sought imposition of DSFO sanctions against Alvarado based on the fact that he was on probation for aggravated battery at the time he committed the crimes. The trial court found that Alvarado qualified for HVFO sanctions based on his prior conviction for aggravated battery on a pregnant woman, and sentenced him to concurrent mandatory life sentences on Counts I and II, with twenty-five year minimum mandatory terms as a DSFO. On Counts III and IV, Alvarado was sentenced to concurrent terms of life imprisonment with fifteen-year minimum mandatory terms as an HVFO and twenty-five-year minimum mandatory terms as a DSFO. Finally, on Count V, Alvarado received thirty years imprisonment with a ten-year minimum mandatory term as an HVFO and a twenty-five year minimum mandatory term as a DSFO.

Alvarado argues that the trial court erred in sentencing him as an HVFO on Counts III, IV, and V because the sole prior conviction upon which this enhanced sentencing was imposed is aggravated battery on a pregnant woman under section 784.045(1)(b), Florida Statutes (2004). He asserts that this particular form of aggravated battery is unlike the standard aggravated battery because it is not a violent crime. See § 784.045(1)(b), Fla. Stat. (2004). Instead, the crime of simple battery moves from a misdemeanor to a felony when the victim is pregnant and the accused knew or should have known that she was pregnant. Id. Thus, Alvarado reasons that aggravated battery on a pregnant woman is not a violent offense that subjects him to HVFO sentencing. This is an issue of statutory construction, a pure question of law for which the standard of review is de novo. Sutton v. State, 975 So. 2d 1073, 1076 (Fla. 2008).

Section 775.084(1)(b), Florida Statutes (2004) sets forth the requirements for HVFO sanctions. It states that a court may impose an extended term of imprisonment as a habitual violent felony offender if the defendant was previously convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions were for one of the felonies enumerated in the statute. § 775.084(1)(b)(1), Fla. Stat. (2004). Aggravated battery is one of the enumerated crimes that qualify a defendant for HVFO sentencing. Id.

Turning to the aggravated battery statute, section 784.045(b), Florida Statutes (2004), states that:

“A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.”

This statute does not differentiate between the standard aggravated battery and simple battery that becomes aggravated battery because the victim is pregnant. Moreover, it does not describe different sentencing for the two forms of aggravated battery, and specifically references section 775.084, Florida Statutes, the HVFO sentencing statute, as an option for both forms of aggravated battery.²

Our supreme court dealt with a similar issue White v. State, 666 So. 2d 895 (Fla. 1996). There, the defendant was sentenced under section 775.084, Florida Statutes as an HVFO. Id. at 895. His predicate offense was manslaughter by culpable negligence. Id. at 895-96. The conviction stemmed from a charge of driving while under the influence of alcohol during which the defendant struck and killed a bicyclist with his car. Id. at 896 n.1. The defendant filed a rule 3.800 motion to correct an illegal sentence, arguing that he should not have been sentenced as an HVFO because his predicate offense, unlike the other enumerated predicate offenses, was not “especially” or “consciously” violent. Id. at 896. The Florida Supreme Court disagreed, stating that the legislature named manslaughter as a qualifying offense without limitation. Id. The Supreme Court held that the plain language of the HVFO provision and the manslaughter provision, when read together, “indicate . . . that the legislature intended to permit courts to habitualize defendants with a prior conviction for manslaughter by culpable negligence.” Id.

Likewise, a plain reading of the HVFO provision and the aggravated battery provision indicates that the legislature intended to permit courts to habitualize defendants who have committed simple battery on a pregnant woman, which is deemed an aggravated battery because of the condition of the victim. The legislature listed aggravated battery as an enumerated predicate offense for HVFO sentencing without limiting it to the standard aggravated battery. Accordingly, the trial court did not err in sentencing Alvarado as an HVFO.

Alvarado urges this court to perform the kind of analysis that our supreme court performed State v. Hearns, 961 So. 2d 211 (Fla. 2007). There, the defendant was sentenced as a violent career criminal (VCC) under section 775.084, Florida Statutes (2000). Id. at 212. One of the offenses that qualified the defendant for VCC sentencing was battery on a law enforcement officer (BOLEO). Id. at 212-13. The defendant filed a motion for post-conviction relief, arguing that BOLEO is not a qualifying offense for VCC sentencing. Id. at 213. As in the present case, the defendant argued that BOLEO is really simple battery that becomes a more serious offense when it is committed on a law enforcement officer.

Id. at 214.

That is where the similarities end between Hearns and the present case. The defendant in Hearns was being sentenced under the VCC statute, which did not specifically list BOLEO as a qualifying offense. Id. Thus, in order for BOLEO to become a qualifying offense for VCC sentencing, it had to fall under the catch-all category of “any forcible felony, as described in s. 776.08.” Id. The forcible felony statute also did not specifically list BOLEO as a forcible felony, so it had to fall under that statute’s catch-all category as “any other felony which involves the use or threat of physical force or violence against any individual.” Id. The Court went on to analyze the statutory elements of BOLEO to determine whether it is a forcible felony, and determined that it is not.

Id. at 218-20.

The Hearns analysis is not applicable to this case because Alvarado was convicted of one of the enumerated qualifying offenses for HVFO sentencing. The legislature has clearly indicated its intent that the specifically-enumerated offenses qualify a defendant for enhanced sentencing. Accordingly, the trial court properly sentenced Alvarado as an HVFO because battery on a pregnant woman falls within the definition of aggravated battery, one of the enumerated qualifying offenses.

Affirmed.

WARNER and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

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Courtesy of David Edelstein

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D.A., a juvenile, Appellant,
v.
The State of Florida, Appellee. No. 3D06-3122 District Court of Appeal of Florida, Third District. Opinion filed April 29, 2009.An Appeal from the Circuit Court for Miami-Dade County, Douglas Chumbley, Judge, Lower Tribunal No. 06-5561

Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.

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

SHEPHERD, J.

Defendant, D.A., appeals a juvenile court order adjudicating him guilty of possession of cannabis following a traffic stop predicated on an expired tag displayed on the vehicle he was driving. D.A. argues that the officer who executed the stop was constitutionally obligated to release him immediately upon deciding not to issue him a citation for the expired tag, and that, in any event, it was constitutionally improper to interrogate him about matters unrelated to the reason for the stop. We conclude D.A. was neither unlawfully detained nor improperly interrogated, and therefore affirm the adjudication of guilt. A brief summary of the facts of this case is necessary to explain our decision.

FACTSOn July 26, 2006, D.A. was pulled over by Officer Jorge Nunez on a residential street in south Miami-Dade County. Because there were five or six juveniles in the car, Officer Nunez called for backup. When the second officer arrived, they together ordered all of the occupants out of the car. Nunez then obtained from D.A. his driver’s license and the vehicle registration. Seeing that the tag was expired for only ten days, Nunez decided not to issue D.A. a citation. Nunez then asked D.A., “[I]s there anything on you or in this vehicle that I need to know about. Illegal, that I need to know about.” D.A. responded, “[Y]eah, there’s a baggy of marijuana which is in the center console.” Nunez seized the bag of marijuana and arrested D.A. D.A. argues to us on this appeal that “once [Nunez] had the information necessary to determine if a traffic offense was committed or whether a citation will be issued, the detention must end.” Alternatively, says D.A., while Nunez “[was entitled to] ask questions about the suspected traffic offense, he cannot ask about unrelated matters.” As previously indicated, we find D.A.’s contentions to be legally unsustainable.

ANALYSISAlthough their language otherwise varies to some modest degree, both the Fourth Amendment to the United States Constitution and its Florida counterpart, Article I, section 12, of the Florida Constitution, guarantee that “[t]he right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated.” A traffic stop is a seizure within the meaning of these provisions of the United States and Florida Constitutions. Whren v. U.S., 517 U.S. 806 (1996); accord Holland v. State, 696 So. 2d 757 (Fla. 1997). Such a seizure is permissible if the seizing officer has probable cause to believe a traffic infraction has occurred. Whren, 517 U.S. at 810; Holland, 696 So. 2d at 759; State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008); Parrish v. State, 937 So. 2d 1231 (Fla. 1st DCA 2006); Stone v. State, 856 So. 2d 1109 (Fla. 4th DCA 2003). It is indisputable that the police had probable cause to stop the vehicle. Gomez v. State, 748 So. 2d 352, 352 (Fla. 3d DCA 1999) (“[T]he traffic stop was lawful because the officer had probable cause to believe that the defendant had violated the traffic code by driving a vehicle with an expired temporary tag.”); see also § 320.07(1), Fla. Stat. (2006) (“A vehicle shall not be operated on the roads of this state after expiration of the renewal period unless the registration has been renewed according to law.”).

“Once a police officer stops a car for a traffic infraction, the officer is then justified in detaining the driver `only for the time reasonably necessary to issue a citation or warning . . . .’” Sanchez v. State, 847 So. 2d 1043, 1046 (Fla. 4th DCA 2003) (quoting State v. Moore, 791 So. 2d 1246, 1249 (Fla. 1st DCA 2001)). Engrafted into this “reasonably necessary” time period by the law of this state is the customary driver’s license, tag, insurance, registration, and active warrant checks that routinely accompany a traffic stop. See, e.g., State v. Stone, 889 So. 2d 999 (Fla. 5th DCA 2004); Sanchez, 847 So. 2d at 1043; Blackmon v. State, 570 So. 2d 1074 (Fla. 1st DCA 1990); see also State v. Brooks, 662 So. 2d 440, 441 (Fla. 5th DCA 1995) (Sharp, J., dissenting) (“Florida has no policy against allowing a police officer to radio in information for a license and warrants check on drivers stopped for all traffic violations. It is done in most cases, and [the arresting officer in this case] testified he always does so, to be sure he is not dealing with fugitives.”); cf. State v. Rife, 943 P.2d 266, 270 (Wash. 1997) (“The [Washington] Legislature did not grant police officers authority to search for outstanding warrants upon making a stop for a traffic infraction.”), superseded by statute, Wash. Rev. Code. § 46.61.021 (1997). Our jurisprudence holds these additional checks do not offend Fourth Amendment notions of “unreasonable[ness]” as to either length of detention or scope of inquiry, provided, of course, “[the] information can be obtained within a reasonable period of time.” Eldridge v. State, 817 So. 2d 884, 887 (Fla. 5th DCA 2002); see also Sanchez, 847 So. 2d at 1043; State v. Robinson, 756 So. 2d 249 (Fla. 5th DCA 2000); State v. Brown, 691 So. 2d 637, 638 (Fla. 5th DCA 1997); State v. Williams, 565 So. 2d 714 (Fla. 3d DCA 1990); Johnson v. State, 537 So. 2d 117 (Fla. 1st DCA 1988).¹ The reasonableness of a seizure therefore depends on what the police do, not on some pre-determined temporal limitation.

A question—in itself—is neither a search nor a seizure. Florida v. Bostick, 501 U.S. 429, 434 (1991); Florida v. Royer, 460 U.S. 491, 497 (1983); Terry v. Ohio, 392 U.S. 1, 32-33 (1968) (Harlan, J., concurring).² It is well-settled that asking a question of a person not in custody is neither a search nor a seizure. Bostick, 501 U.S. at 434. Our case is distinguished only by the concededly not-insignificant fact that D.A. was in custody. But, as eloquently explained by Judge Frank Easterbrook in his thoroughly scholarly en banc opinion on this topic United States v. Childs, 277 F.3d 947, 950 (7th Cir. 2002), “[a] view that custody transmutes questions into `seizures’ is backward[.]” As he explains:

If the police may ask (without suspicion) questions of persons who are in no custody (e.g., walking down the street), people who are in practical but not legal custody (e.g., passengers on busses and airplanes), and people who are in formal custody pending trial or following conviction (e.g., prisoners . . .), then why would the police need probable cause or reasonable suspicion to direct questions to persons such as Childs who are in legal custody but likely to be released soon?

Id. at 951.

Moreover, a question asked of someone already in custody causes no “unreasonable delay” within the meaning of the Fourth Amendment. Again to quote Judge Easterbrook:

Questions asked during detention may affect the reasonableness of [a] detention (which is a seizure) to the extent that they prolong custody, but questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable or require suppression of evidence found as a result of the answers.

Id. at 949. Contrary to the argument made by D.A., Officer Nunez had more than one duty yet to be completed when he decided he was not going to cite D.A. for an expired tag. As he testified, “I still wanted to investigate whether or not any of these juveniles had a warrant, and whether [D.A.'s] license was valid or not.”³ D.A. remained in the lawful custody of Miami-Dade County at the time Officer Nunez inquired whether there was anything else he “need[ed] to know about.”

D.A.’s argument he should have been released the instant the officer decided not to cite him relies primarily on State v. Diaz, 850 So. 2d 435 (Fla. 2003). In Diaz, the officer executed the traffic stop because he was unable to see the expiration date on Diaz’s temporary tag. Id. at 436. As he approached the vehicle, before he made contact with Diaz, the officer verified he could clearly read the tag. Unlike most traffic stops—where probable cause exists at the moment of the stop and continues to exist through its duration (for example, stops for speeding or improper lane changes)—probable cause to hold Diaz and his vehicle evaporated the moment the officer “found nothing improper,” rendering further seizure baseless. Id. Nevertheless, the officer proceeded with the seizure and obtained information from Diaz which led to Diaz being charged for driving with a suspended license. Id. At most, the officer should have greeted Diaz and sent him on his way. Id. at 440.

In our case, D.A.’s seizure was not baseless. Officer Nunez at all times acted with probable cause of a traffic violation, and had not yet completed the usual and customary investigation etched in the law of this state as constitutionally permissible in the course of a valid traffic stop. That law includes the ability to ask unrelated questions, subject, of course, to the right of the detainee to refuse to answer. Because probable cause supported the stop in this case, D.A. did not have the right to be immediately released. The extra time Officer Nunez occupied to complete his investigation, including the time it took to ask the unrelated question inquiring of other illegal activity was short—not nearly enough to make the length of seizure in this case “unreasonable.”

Affirmed.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

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Courtesy of David Edelstein

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