Florida Criminal Law Opinions

CYRENTHIA DENISE POWELL, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 2D08-5602. District Court of Appeal of Florida, Second District. Opinion filed April 22, 2009.Petition for Writ of Certiorari to the Circuit Court for Pinellas County, Dee Anna Farnell, Judge.

Cyrenthia Denise Powell, pro se.

Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.

DAVIS, Judge.

Cyrenthia Powell challenges, through a petition for writ of certiorari, the dismissal of her motion for correction, reduction, and modification of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). Based on the State’s proper concession of error and because the postconviction court erred by dismissing her motion as untimely, we grant the petition.

Powell was originally sentenced on June 15, 2007, to five years’ incarceration for violating the probation she was serving for a possession of cocaine conviction. This court affirmed her sentence on direct appeal, see Powell v. State, 986 So. 2d 610 (Fla. 2d DCA 2008) (table decision), and the mandate issued on July 31, 2008. On September 5, 2008, she filed her pro se motion for reduction of sentence pursuant to rule 3.800(c). The postconviction court dismissed the motion as untimely.

Pursuant to the rule, a defendant may file a rule 3.800(c) motion within sixty days from the imposition of the legal sentence or within sixty days from the receipt by the circuit court of a mandate affirming the sentence or an order dismissing the appeal. Since the mandate affirming Powell’s direct appeal was issued on July 31, 2008, and her rule 3.800(c) motion was received by the postconviction court on September 5, 2008, within sixty days of the issuance of the mandate affirming her direct appeal, Powell’s motion was timely.

It appears from the order of dismissal that the postconviction court erroneously believed that Powell had not filed a direct appeal of her revocation of probation and the resulting sentence. Because of this error, the postconviction court concluded that the motion was untimely as filed outside the sixty-day limit from the date of Powell’s sentence. However, because Powell did file a direct appeal, the time for the filing of the motion was extended and her motion was timely. See Byrd v. State, 920 So. 2d 825, 826 (Fla. 2d DCA 2006). Accordingly, we grant the petition for writ of certiorari, quash the postconviction court’s order, and remand for the court to consider Powell’s rule 3.800(c) motion on its merits.

Petition granted.

SILBERMAN, and CRENSHAW, JJ., Concur.

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

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LONNIE LEE SMALL, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-5549. District Court of Appeal of Florida, Second District. Opinion filed April 22, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Collier County, Franklin G. Baker, Judge.

ALTENBERND, Judge.

Lonnie Lee Small appeals a trial court order denying his postconviction motion in which he sought proper credit for time served pursuant to Florida Rule of Criminal Procedure 3.800(a). The motion concerns a sentence imposed on February 7, 2008, for sale of cocaine. Mr. Small entered a negotiated plea to this offense in exchange for a sentence of 39.6 months’ incarceration, which was to be served concurrently with two previously-imposed sentences. Although Mr. Small inartfully describes his claim as one involving coterminous sentences, it does appear that he has an unresolved issue that requires further attention by the trial court and which may entitle him to immediate release. Accordingly, we reverse and remand for further proceedings.

By three separate felony informations, the State charged Mr. Small for three drug-related offenses committed between mid-November 2004 and late February 2005. Mr. Small resolved the first and the third of these charges in April 2006 through a negotiated plea that called for concurrent sentences of 39.6 months. For reasons that are not explained in our record, he did not resolve the second offense at that time. While this second offense was still pending, Mr. Small was placed in the custody of the Department of Corrections to begin serving the two concurrent sentences. In February 2008, Mr. Small was returned to Collier County to plead to the remaining charge. He negotiated the same sentence that he had received for the first two offenses—39.6 months. Although the discussion at the hearing is couched in terms of concurrent sentences, it appears from the discussion that Judge Baker, Mr. Small, the assistant state attorney, and the assistant public defender all believed that he would receive credit for the time spent in DOC custody awaiting sentencing, just as he would have received credit if he had remained in the Collier County Jail awaiting resolution of this charge. In this regard, the record reflects the following brief exchange:

ASSISTANT PUBLIC DEFENDER: What we’re trying to establish is that this was going to run concurrent with the two cases that he was pleading on originally for the 39 months.

THE COURT: It is.

ASSISTANT STATE ATTORNEY: It is.

THE CLERK: I think 2/5, I was thinking — ASSISTANT PUBLIC DEFENDER: And all of his time would, that he would get out at the same time he originally was intended to get out.

THE COURT: Okay. That’s the goal.

Mr. Small did not receive this credit from DOC because it was not a requirement specified in his written sentence. As a result, he has now fully served the sentences for the first and third offenses but has about ten months remaining on the sentence for the second offense. This does not appear to be consistent with the trial court’s oral pronouncement at sentencing or with the trial court’s intended goal at that hearing. Accordingly, we remand this matter for further consideration by the trial judge to fashion a correct sentence that fulfills his goal. Because Mr. Small appears to be entitled to immediate release, we issue our mandate with this opinion.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.

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

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TONY YOUNGBLOOD, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-372. District Court of Appeal of Florida, Second District. Opinion filed April 22, 2009.Appeal from the Circuit Court for Desoto County, James S. Parker, Judge.

James Marion Moorman, Public Defender, and William V. Pura, Special Assistant Public Defender, Bartow, for Appellant.

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

ALTENBERND, Judge.

Tony Youngblood appeals his judgment and sentence of twelve years’ incarceration for trafficking in methamphetamine in case number 06-CF-000484.¹ The judgment and sentence were entered after he pleaded nolo contendere, specifically reserving the right to appeal the denial of his motion to suppress statements he made during a videotaped interrogation conducted by law enforcement.² Because law enforcement officers did not cease communications with Mr. Youngblood after he invoked his right to counsel, but instead continued on a course designed to convince him to reconsider his invocation of his constitutional right in order to protect his girlfriend, we conclude that his subsequent decision to waive his right to counsel was involuntary. Accordingly, the trial court erred in failing to grant the motion to suppress the statements, and we must reverse Mr. Youngblood’s judgment and sentence for trafficking in methamphetamine.

In August 2006, officers of the DeSoto County Sheriff’s Office performed a search of Mr. Youngblood’s home after arresting him on several outstanding warrants. In one bedroom of the home, the officers discovered a quantity of methamphetamine. Several days later, two officers conducted a custodial interrogation of Mr. Youngblood. At the beginning of this interrogation, one officer advised Mr. Youngblood of his Miranda³ rights. The following exchange then took place:

Q. Having these rights in mind, do you wish to talk to us without your attorney?

A. No.

Q. Okay. All right. . . . What’s the name of your attorney?

A. Rios.

Q. Who?

A. Rios.

We agree with Mr. Youngblood that this exchange shows his unequivocal invocation of his right to counsel. In response to questioning, Mr. Youngblood clearly expressed his desire to remain silent until his attorney was present.

As the Supreme Court explained in Miranda, once “the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” 384 U.S. at 473-74. After a suspect invokes his or her Miranda rights, police officers are prohibited from engaging in words or actions that the officers “should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnote omitted).

Rather than terminate the interrogation, the officers in this case remained in the interrogation room while waiting for another officer to arrive to transport Mr. Youngblood back to the jail. The officers continued to discuss the case and their desire to speak with Mr. Youngblood. They suggested to Mr. Youngblood that it might help his girlfriend avoid criminal charges if he accepted responsibility for the narcotics found at his house. Although the recording of this portion of the interrogation is rather garbled, one of the two officers in the interrogation room stated:

Q. No. We’re trying to figure out (inaudible) per se trying to figure out your girlfriend’s charges, about (inaudible) Bill told me that that it’s (inaudible) said that she had nothing to do with it. And if that what was the case [sic], then would (inaudible) to that affect [sic]. But (inaudible).

One of the officers went on to explain:

Q. I’ll be honest with you, Tony, the biggest thing we were going to ask you about today was the (inaudible) found at your house. (Inaudible)—deals?

A. (Inaudible)—

Q. (Inaudible) house, that’s what we’re talking about. That’s what you’re currently being charged with today (inaudible) done to have her if it was used, then if this was yours, then we—then it would actually help her to get the charges (inaudible).

(Inaudible)—convince me that she didn’t have some knowledge—knowledge of the paraphernalia and the meth that was in the living room, (inaudible) bedroom.

It is undisputed that, having suggested to Mr. Youngblood that he could help his girlfriend avoid criminal charges, the officers re-advised Mr. Youngblood of his Miranda rights and asked if he was willing to speak with them. At that point, Mr. Youngblood agreed to speak with the officers, who confirmed with Mr. Youngblood that they were changing the Miranda form to reflect his waiver of his rights. Mr. Youngblood then took responsibility for the trafficking amount of methamphetamine that was found in a bedroom in the house.

The State contends that, having initially invoked his Miranda rights, Mr. Youngblood knowingly and intelligently chose to forego the assistance of counsel and voluntarily confessed to the crime. We disagree. The State is essentially arguing that the conversations with Mr. Youngblood after he initially invoked his right to counsel were not “interrogation” into the crime, but rather a persuasive discussion on the separate subject of whether he was prudent to decline to discuss the matter with these officers without further delay.

Where a confession is obtained after the administration of Miranda warnings, the State bears a “heavy burden” to demonstrate that the defendant knowingly and intelligently waived his or her privilege against self-incrimination and the right to counsel. Colorado v. Connelly, 479 U.S. 157, 167 (1986); Fare v. Michael C., 442 U.S. 707, 724 (1979); Miranda, 384 U.S. at 475; W.M. v. State, 585 So. 2d 979, 981 (Fla. 4th DCA 1991). Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare, 442 U.S. at 725)). Thus, “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” Miranda, 384 U.S. at 476. The issue of voluntariness is ultimately a legal, rather than a factual, question. See Ramirez v. State, 739 So. 2d 568 (Fla. 1999).

Here, Mr. Youngblood agreed to speak with law enforcement only after the officers suggested that he might help them “figure out [his] girlfriend’s charges” by taking responsibility for a quantity of methamphetamine found in his house.⁴ The officers’ statements suggested to Mr. Youngblood that his girlfriend could be charged if he did not take responsibility for the narcotics. We recognize that similar tactics, if undertaken after a suspect has voluntarily waived his or her Miranda rights, may sometimes be insufficient to render a suspect’s confession inadmissible. See, e.g., State v. Walter, 970 So. 2d 848, 851-52 (Fla. 2d DCA 2007). In this case, however, Mr. Youngblood had invoked his Miranda rights, and the statements of the law enforcement officers amounted to continued interrogation. Mr. Youngblood did not voluntarily reinitiate contact with law enforcement, but rather was effectively pressured into waiving his constitutional rights. We conclude that Mr. Youngblood’s waiver of his Miranda rights under these circumstances was not voluntary.

Because Mr. Youngblood invoked his Miranda rights and did not thereafter voluntarily waive those rights, the trial court should have suppressed the challenged statements. Accordingly, we reverse the conviction and sentence for trafficking in methamphetamine.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.

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

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Notes:

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Kevin L. Webb, Appellant,
v.
The State of Florida, Appellee. No. 3D08-3090. District Court of Appeal of Florida, Third District. Opinion filed April 22, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, John W. Thornton, Judge. Lower Tribunal No. 04-24007.

Kevin L. Webb, in proper person.

Bill McCollum, Attorney General, for appellee.

Before WELLS, ROTHENBERG, and LAGOA, JJ.

PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

Not final until disposition of timely filed motion for rehearing.

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Michael Letrayal Reese, Appellant,
v.
The State of Florida, Appellee. No. 3D08-2788. District Court of Appeal of Florida, Third District. Opinion filed April 22, 2009.An Appeal from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge. Lower Tribunal Nos. 99-13573, 08-19984.

Michael Letrayal Reese, in proper person.

Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

Before COPE, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, J.

On March 22, 2000, the appellant, Michael Letrayal Reese (“Reese”), was convicted of trafficking in cocaine after a jury trial. His conviction and sentence were subsequently affirmed on direct appeal. Reese v. State, 793 So. 2d 959 (Fla. 3d DCA 2001) (table). Reese’s motion for postconviction relief filed on November 14, 2001, pursuant to Florida Rule of Criminal Procedure 3.850 was also denied, and that denial was affirmed by this Court on September 11, 2002. Reese v. State, 826 So. 2d 310 (Fla. 3d DCA 2002) (table). After an unsuccessful petition for writ of habeas corpus in the federal district court, Reese filed the instant petition for writ of habeas corpus with the Eleventh Judicial Circuit Court of Florida. Reese appeals the trial court’s summary denial of this petition. We affirm. See Baker v. State, 878 So. 2d 1236, 1240-41 (Fla. 2004) (holding that a petition for writ of habeas corpus cannot be used to test the legality of a prisoner’s conviction as a substitute for a motion for postconviction relief); Frazier v. State, 898 So. 2d 1183 (Fla. 3d DCA 2005) (stating that a petition for habeas corpus cannot be used to circumvent the two-year period for filing motions for postconviction relief).

Because the claims raised in the instant petition were previously raised or could have been raised on direct appeal or in a timely filed motion for postconviction relief, we affirm the trial court’s denial of the petition.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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FREDDICK LAMARK WOODSON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-2316. District Court of Appeal of Florida, Second District. Opinion filed April 22, 2009.Appeal from the Circuit Court for Hillsborough County, Wayne Timmerman, Judge.

James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

Freddick Woodson appeals the revocation of his probation for committing a new offense. The trial court sentenced him to five years in prison. We affirm. In doing so, we reject without discussion Mr. Woodson’s suggestion that he was not properly advised of his probationary terms. See State v. Green, 667 So. 2d 959, 960-61 (Fla. 2d DCA 1996) (holding that due process does not require defendant to receive verbal notice of standard probation conditions because all persons have constructive notice of state’s criminal statutes). We write briefly to explain that Mr. Woodson received due process at his revocation hearing.

“Due process requires that the State prove an alleged violation of probation at a hearing or that the defendant enter a knowing admission to a violation before the trial court revokes the defendant’s probation.” Balsinger v. State, 974 So. 2d 592, 593 (Fla. 2d DCA 2008). Under section 948.06(2)(a), Florida Statutes (2007), the trial court must advise the probationer of the alleged violation. Balsinger, 974 So. 2d at 593. Here, the probation officer did not testify, a circumstance that the trial court recognized as not “normal.” Nevertheless, our record reflects sufficient evidence to revoke Mr. Woodson’s probation. And, based on the testimony presented, there can be no question but that Mr. Woodson knew why the State sought revocation of probation. Mr. Woodson made no objection to not being specifically advised of the alleged violation at the start of the hearing. See § 924.051(3), Fla. Stat. (2007); Insko v. State, 969 So. 2d 992, 1001 (Fla. 2007) (holding that litigant must object at trial to preserve error for review).

Despite our affirmance, we remand for entry of a written order specifying the conditions of probation that Mr. Woodson violated.

Affirmed and remanded.

SILBERMAN and KELLY, JJ., Concur.

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

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JAMES BAIN, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-1640. District Court of Appeal of Florida, Second District. Opinion filed April 22, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County, Steven L. Selph, Judge.

THOMAS M. GALLEN, Associate Senior Judge.

James Bain appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for an evidentiary hearing.

After a jury trial in 1974, Bain was convicted of rape, burglary with an assault, and kidnapping. He was sentenced to life in prison. He filed the instant rule 3.853 motion in 2006. In his motion, Bain sought DNA testing of the victim’s underwear and pajamas which were allegedly introduced by the State at trial because they contained Bain’s blood, saliva, and semen. Bain argued that DNA testing would prove that he is innocent of the crimes for which he was convicted. He claimed that he was partying with his friends on the night of the offense and was nowhere near the victim’s residence and that he used an alibi defense at trial. Bain contended that the victim was coerced into identifying him as the perpetrator.

The postconviction court denied Bain’s motion as untimely. He appealed, and this court reversed because “no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005.” Bain v. State, 963 So. 2d 913, 914 (Fla. 2d DCA 2007). This court directed the postconviction court to order the State to respond to the motion and to hold a hearing if necessary. Id.; see also Fla. R. Crim. P. 3.853(c)(2).

On remand, the State responded that certain physical exhibits (consisting of two pairs of trousers and two pairs of shorts) remain in the circuit court’s custody. However, the State contended that the motion is barred by the doctrine of laches because the trial transcript in the case has been long since destroyed and due to the destruction of the trial transcript, it is unclear whether the source of the physical evidence can be identified. The State also asserted that the arresting agency retains no records or physical exhibits. The State contended that even though rule 3.853 provides no deadline for seeking DNA testing, the State would be prejudiced by any DNA testing because it would be unable to reconstruct the over thirty-year-old case because the witnesses may not be located, their recollections would be substantially diminished by the inordinate passage of time, and records that could be used to refresh their recollections are unobtainable. The State also argued that the motion should be denied on the merits because the surviving records show that there is no reasonable probability that the DNA evidence would have resulted in an acquittal.

The postconviction court found Bain’s motion to be “facially sufficient as a matter of law.” The postconviction court also found the State’s arguments to be “well taken and adopt[ed]” them.

“Laches is sustainable in a criminal case where there has been both a lack of due diligence on the defendant’s part in bringing forth the claim and prejudice to the State.” Felder v. State, 842 So. 2d 979, 980 (Fla. 2d DCA 2003) (citing Wright v. State, 711 So. 2d 66, 67 (Fla. 3d DCA 1998)). However, the ” ‘[a]pplication of the doctrine [of laches] often involves factual issues that are not properly resolved without an evidentiary hearing.’ ” Wilson v. State, 868 So. 2d 654, 656 (Fla. 2d DCA 2004) (first alternation in original) (quoting Love v. State, 814 So. 2d 475, 478 (Fla. 4th DCA 2002)), see also Omasta v. State, 805 So. 2d 846, 847 (Fla. 2d DCA 2001) (holding that evidentiary hearing was required to determine whether postconviction motion was barred by the doctrine of laches). In the instant case, the postconviction court erred in denying Bain’s motion on the basis of the doctrine of laches without first conducting an evidentiary hearing, especially in light of the State’s assertion that the trial transcripts do not exist but that certain other records and evidence do still exist. See Love, 814 So. 2d at 478 (holding that evidentiary hearing should be held on state’s claim that laches bars postconviction motion because no transcripts of the plea proceeding exist).

We decline to reach the merits of Bain’s motion based on the limited record before us.

Accordingly, we reverse the postconviction court’s order of denial and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.

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

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ANRES RIGUEIRO a/k/a ANDRES RIGUEIRO MUNOZ, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. 4D08-1073 District Court of Appeal of Florida, Fourth District. April 22, 2009.Petition alleging ineffective assistance of counsel to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Elijah H. Williams, Judge; L.T. Case No. 02-1010CF10A.

Ronald S. Guralnick, P.A., Miami, for petitioner.

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

MAY, J.

The defendant petitions this court for a writ of habeas corpus, pursuant to Florida Rule of Appellate Procedure 9.140, alleging ineffective assistance of appellate counsel. For the reasons that follow, we deny the petition.

The defendant was convicted of four counts of sexual battery on a victim over 12 years of age and sentenced to 40 years in prison. He was represented by defense counsel on appeal. We affirmed without opinion on February 1, 2006, and issued our mandate on February 17, 2006. Two days prior to the issuance of our mandate, the defendant handed his pro se motion for rehearing and rehearing en banc to the correctional institution for mailing. We received the pro se motion on February 21, 2006, and denied the motion on March 21, 2006.¹

On March 13, 2008, defense counsel filed a rule 3.850 motion in the trial court. One day later, he filed the current petition. Both were filed over two years after the issuance of the mandate, but within two years of this Court’s denial of the defendant’s motion for rehearing on direct appeal.

The trial court denied the rule 3.850 motion as untimely and we affirmed. Rigueiro v. State, 994 So. 2d 316 (Fla. 4th DCA 2008).

In its response to the petition in this court, the State argued that the petition was untimely filed. In his reply, the defendant cites Robbins v. State, 992 So. 2d 878 (Fla. 5th DCA 2008), which appears to reach a different conclusion under similar circumstances. There the court concluded it should have recalled its mandate before ruling on a prisoner’s motion for rehearing that had been timely delivered to prison officials before the mandate was issued. Id. at 879-80. However, the Robbins opinion does not address the well-established principle that pro se filings are a “nullity” when filed by a party that is represented by counsel.² Logan v. State, 846 So. 2d 472, 475-76 (Fla. 2003) (a pro se filing by a party represented by counsel “cannot be entertained on the merits” unless it is adopted by counsel.).

We agree that, generally, a court should recall its mandate when it receives a timely filed motion for rehearing. However, that procedure is not applicable here, where the defendant’s pro se motion had “no legal force or effect” because he was represented by counsel. State v. Craven, 955 So. 2d 1182, 1183 (Fla. 4th DCA 2007). Because the two-year time limit ran from the issuance of the mandate rather than the denial of the defendant’s pro se motion for rehearing, his petition must be dismissed as untimely.

Petition denied.

GROSS, C.J., and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Latoya Mahoney-Smith, Appellant,
v.
The State of Florida, Appellee. No. 3D08-30 District Court of Appeal of Florida, Third District. Opinion filed April 22, 2009.An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge. Lower Tribunal No. 07-4426.

Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

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

Before RAMIREZ, WELLS and ROTHENBERG, JJ.

WELLS, J.

Latoya Mahoney-Smith appeals from her conviction and sentence for stalking, aggravated stalking, and multiple violations of an injunction against repeat violence claiming that the trial court erred (1) in permitting the state to introduce testimony about her past behavior, (2) in failing to instruct the jury on attempted violation of an injunction, and (3) in failing to enter a judgment of acquittal because the State failed to prove malice, harassment, or emotional distress. Because the record demonstrates facts sufficient to establish each element of the charges against Mahoney-Smith and because we find no error in either the trial court’s evidentiary rulings or the jury instructions given, we affirm. See Dorsett v. State, 944 So. 2d 1207, 1213 (Fla. 3d DCA 2006) (confirming that evidence of prior bad acts may be admitted where it is inextricably intertwined with the charges being prosecuted and thus necessary to adequately describe the deed; to provide an intelligent account of the crimes charged; to establish the entire context out of which the charged crimes arose; or to adequately describe the events leading up to the charged crimes); see also Fla. R. Crim. P. 3.510(a) (confirming that the court “shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense”).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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JAVIER ENRIQUE GONZALES, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D07-4876. District Court of Appeal of Florida, Fourth District. April 22, 2009.Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard I. Wennet, Judge; L.T. Case No. 07CF000513AMB.

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

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals his conviction and sentence for felony DUI, possession of cocaine, resisting without violence, and battery. He argues the trial court erred in denying his motion to sever the possession of cocaine charge from the felony DUI charge. We disagree and affirm.

A passing motorist discovered the defendant slumped over the steering wheel of his car, unconscious, in an intersection at around 4:00 a.m. The motorist observed the defendant release the brake and idle forward after she sounded her car horn. She positioned her vehicle in front of the defendant’s car to prevent him from going further down the road. She and another motorist were barely able to wake the defendant by honking, yelling, and banging on his windows. Although neither smelled alcohol on the defendant’s breath, one thought he remembered the defendant had admitted he had been drinking.

A Palm Beach County Sheriff’s deputy again awoke the defendant upon his arrival. When he asked the defendant where he was, the defendant wrongly replied that he was in Fort Myers. The defendant’s actions were very slow and unresponsive, his face was flushed, and his eyes red and bloodshot. The deputy concluded the defendant was impaired.

The deputy asked the defendant if he had any medical conditions. The defendant replied, “No, I’m just f—ed up.” Unable to maintain his balance without stumbling, the defendant refused to perform a roadside sobriety test. Detecting the smell of alcohol, the deputy arrested him for DUI. The deputy then discovered cocaine in the defendant’s pocket. While awaiting the administration of a breathalyzer test, the defendant became combative and hit the deputy.

The State charged the defendant with felony DUI, possession of cocaine, resisting without violence, driving while license canceled, suspended or revoked, and battery. The DUI count alleged that the defendant unlawfully drove or was in control “of a vehicle while under the influence of alcoholic beverages, chemicals or any substance controlled under Chapter 893 or any combination thereof, to the extent his normal faculties were impaired . . . .”

The defendant moved to sever the offenses. The State agreed to severance of the driving without a license charge, but not the DUI offense. The trial court denied the motion as it related to the DUI charge. Before trial, the defendant renewed his motion to sever; the trial court again denied the motion.

The jury found the defendant guilty as charged. The court adjudicated the defendant guilty and sentenced him to two years in prison, followed by two years of probation. On appeal, the defendant raises the single issue of the propriety of the court’s denial of his motion to sever the possession of cocaine charge. We review such orders for an abuse of discretion. Crossley v. State, 596 So. 2d 447, 450 (Fla. 1992).

Florida Rule of Criminal Procedure 3.150(a) provides that multiple offenses “may be charged in the same indictment or information in a separate count for each offense, when the offenses . . . are based on the same act or transaction or on 2 or more connected acts or transactions.” A court “shall grant a severance of charges . . . on a showing that the severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” Fla. R. Crim. P. 3.152(a)(2).

In Crossley, the Supreme Court of Florida examined the severance rule and discussed the need to balance the “convenience and the preservation of the courts’ valuable resources” against the “defendant’s right to a fair trial.” 596 So. 2d at 449-50 (noting that “practicality and efficiency cannot outweigh the defendant’s right to a fair trial”). “[T]he court must be careful that there is a meaningful relationship between the charges of two separate crimes.” Id. at 450. However, where the offenses are “clearly connected in an episodic sense” and there is “no showing that severance of the properly joined offenses was necessary to promote a fair determination of [the defendant's] guilt or innocence,” a trial court does not abuse its discretion by denying a motion to sever. Fotopoulos v. State, 608 So. 2d 784, 790 (Fla. 1992).

Here, the defendant argues that the State improperly bolstered its proof of the DUI charge with evidence of the cocaine when the State was unable to prove that the defendant had actually consumed the cocaine. Without that improper bolstering, the defendant argues the jury may have been unable to overcome his theory that he was simply exhausted. We disagree.

A defendant may be convicted of driving under the influence where sufficient evidence supports a verdict that he was affected by a “controlled substance, which includes cocaine” to the extent his “normal faculties are impaired.” Sabree v. State, 978 So. 2d 840, 841 (Fla. 4th DCA 2008) (emphasis added). The defendant’s possession of cocaine was circumstantial evidence that the defendant was under the influence of the cocaine as alleged in the information. In fact, the jury was instructed that to convict the defendant of the DUI charge, the State must prove that the defendant, while driving, “was under the influence of alcoholic beverages or a controlled substance to the extent that his normal faculties were impaired” and that “[c]ocaine is a controlled substance under Florida law.”

Even more importantly, the evidence of the defendant’s impaired condition was significant. He was found slumped over the wheel of his vehicle in the middle of an intersection at 4:00 a.m. Passing motorists had difficulty waking him. When the deputy arrived, he observed the defendant’s face flushed and his eyes red and bloodshot. The deputy smelled alcohol on the defendant’s breath. When asked where he was, the defendant replied that he thought he was in Fort Myers. In short, the evidence was more than sufficient to convict the defendant of DUI. There was therefore no danger of improper bolstering.

Accordingly, severance was not required “to promote a fair determination of the defendant’s guilt or innocence of each offense.” Fla. R. Crim. P. 3.152(a)(2)(A). And, unlike Crossley, the DUI and possession charge arose out of, and constituted, a single criminal episode. The offenses were properly charged and tried together.

Affirmed.

Stevenson, J., concurs.

Taylor, J., dissents with opinion.

Taylor, J., dissenting.

I respectfully dissent. Appellant’s motion to sever the possession of cocaine charge from the DUI charge at trial should have been granted. Although the two charges are connected in an episodic sense, because the search incident to the DUI arrest produced the cocaine found in appellant’s pocket, a severance was necessary “to promote a fair determination of the defendant’s guilt or innocence of each offense.” See Fla. R. Crim. P. 3.152(a)(2)(A). Allowing the jury to hear evidence that appellant possessed cocaine at the time of his DUI arrest created a substantial risk that this evidence would unfairly bolster the state’s proof of DUI, which primarily showed impairment by alcohol. Sule v. State, 968 So. 2d 99, 104 (Fla. 4th DCA 2007) (“The danger of improper consolidation lies in the fact that evidence relating to one crime may have the effect of bolstering the proof of the other.”) (citing Crossley v. State, 596 So. 2d 447, 450 (Fla. 1992)).

In this case, the state presented evidence that appellant had consumed alcohol, but no evidence whatsoever that he had ingested any of the cocaine found in his pocket. Appellant was found asleep at the wheel. When awakened by the deputy, he was very slow, unresponsive, and unable to maintain his balance without stumbling. His face was flushed, his eyes were bloodshot, and he had alcohol on his breath. Typically, these are signs of impairment by alcohol. In addition, appellant admitted that he had been drinking. The state did not present any evidence suggesting that appellant had ingested cocaine or that he showed any signs of having ingested cocaine. Without some predicate facts tying the cocaine found in appellant’s pocket to his impaired condition, evidence of the cocaine was not material to the DUI charge; it unfairly invited the jury to speculate that appellant was under the influence of cocaine. Had the charges been severed and the DUI case tried separately, the jury would have been prohibited from hearing that cocaine was found in appellant’s possession, because the danger of unfair prejudice would have substantially outweighed the probative value of this evidence. See Fla. Stat. § 90.403 (relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice).

This case is similar to our recent opinion Estrich v. State, 995 So. 2d 613 (Fla. 4th DCA 2008). There, the defendant was charged with DUI manslaughter as the result of a fatal car accident. He was also charged with a small quantity of marijuana found in his pocket after the crash. The state’s case focused on Xanax as the cause of the defendant’s impairment. Id. at 617. However, evidence showed that the defendant had a trace amount of marijuana in his blood. The defendant moved to sever the marijuana charge from the DUI manslaughter charge. He also moved to exclude evidence of the marijuana metabolite in his blood, arguing that such evidence was prejudicial. The trial court denied both motions. We reversed, stating:

Allowing the jury to hear that the defendant possessed .95 grams of marijuana had a prejudicial effect on the trial of the manslaughter charge. There was a significant risk that evidence of the defendant’s possession of an illegal drug would bolster the state’s contention that yet another drug impaired the defendant’s ability to drive. The circuit court abused its discretion in denying severance and on retrial the DUI charge shall be severed from the marijuana possession charge.

Id. at 618.

Estrich is somewhat distinguishable from this case in that the evidence there showed, and the state conceded, that Xanax was the likely cause of the defendant’s impairment, and that marijuana was not a contributing factor. Here, there was no evidence or concession that cocaine was not a cause of the defendant’s impairment. But, more important, there was no evidence that it was. The state presented no proof of any cocaine use at all. There were no blood test results indicating that cocaine was present in appellant’s system. There was no testimony that appellant’s appearance and behavior were consistent with cocaine consumption.¹ Appellant made no admissions to using cocaine. In short, the state had no evidentiary basis for arguing to the jury, as it did, that appellant was probably impaired by cocaine. The prosecutor told the jury:

All you have to focus on is the elements of the crimes, and if I proved the elements of the crime it doesn’t matter that — if he had white powder on his nose — we know he had cocaine on him, we know he did; we know that he was drinking, he admitted that he was drinking to two separate people — it doesn’t matter, we just need to know whether he was drinking or taking cocaine or any controlled substance — it’s an either/or — or both to the point that his normal faculties were impaired.

Appellant testified that his condition was due to lack of sleep and extreme exhaustion. Of course, the jury was free to reject this testimony. But while evidence of appellant’s alcohol consumption may have been insufficient to convince the jury of his guilt, evidence that he possessed cocaine could have “tipped the scale” for a DUI conviction. See Estrich, 995 So. 2d at 618 (quoting Rodriguez v. State, 909 So. 2d 547, 550 (Fla. 4th DCA 2005)). This evidence served to bolster the state’s theory, based on impermissible inferences, that because appellant had cocaine in his possession, he must have used it, and, as a result, become too impaired to drive. I believe the trial court abused its discretion in failing to sever the cocaine possession charge from the DUI and would reverse and remand for a new trial

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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