Florida Criminal Law Opinions

The State of Florida, Appellant,
v.
Alvaro Arango, Appellee. No. 3D07-2250 District Court of Appeal of Florida, Third District. Opinion filed April 22, 2009.An Appeal from the Circuit Court for Miami-Dade County, Lawrence A. Schwartz, Judge. Lower Tribunal No. 06-10036.

Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellant.

Jason M. Wandner, for appellee.

Before SHEPHERD, CORTIÑAS, and SALTER, JJ.

CORTIÑAS, J.

Appellant, the State of Florida, seeks review of the trial court’s order granting Alvaro Arango’s (“defendant”) motion to dismiss and the court’s earlier grant of defendant’s motion to suppress. We find the trial court erred and, accordingly, reverse.

Detective Vila (“Vila”) received an anonymous tip advising him that marijuana was being cultivated at a particular residence. Upon arriving at the residence, Vila detected the odor of marijuana, determined it was emanating from the residence, and returned to his car to prepare a search warrant for the residence. As Vila was writing out the warrant, the defendant drove onto the residence’s driveway and the garage door opened. The defendant then casually entered the garage and shortly thereafter, saw Vila, and with a look of surprise, returned to his vehicle and drove away. The garage door closed after the defendant exited. Vila testified that while the garage door was open, he noticed an R-Max board¹ and approximately two to five filled black garbage bags.

Vila, along with another officer, followed the defendant and stopped him shortly thereafter. When the defendant lowered his window to inquire why he was being stopped, Vila noticed the odor of marijuana emanating from the defendant’s car. The defendant stepped out of his vehicle and, as Vila and the defendant continued to talk and walk along the defendant’s vehicle, Vila observed, in the passenger seat, rolls of tape, one of which had marijuana residue, and black trash bags on the floor of the passenger side. Defendant was arrested and invoked his Miranda² rights.

Vila and the other officer returned with the defendant to the residence and obtained the search warrant later that day. Vila testified that as he and other officers at the scene prepared to forcibly enter the residence through the front door, a conversation ensued between him and the defendant. During this conversation, the defendant informed Vila that there was a garage door opener in the defendant’s vehicle. It is unclear as to who initiated the conversation. The officers entered the residence and discovered a hydroponics lab. Several items were seized by the officers, including beer bottles, cigarette butts, and fingerprints from various items and from the walls of the residence. Also seized were 88.4 pounds of marijuana, and an additional bag of marijuana from the refrigerator.³

The defendant filed a motion to suppress, and the trial court granted the motion as to 1) the investigative stop and any evidence obtained pursuant to the stop, 2) statements made by the defendant after he was arrested and invoked his Miranda rights, 3) beer bottles and any further evidence obtained from the beer bottles, 4) cigarette butts, 5) fingerprints obtained from walls or other items not authorized by the warrant, and 6) anything recovered from the refrigerator. Shortly thereafter, the defendant filed a motion to dismiss stating, in part, that the evidence against the defendant had been significantly diminished as a result of the motion to suppress. The court granted the motion to dismiss with prejudice. This appeal followed.

The State argues that the evidence obtained from Vila’s stop of the defendant should not have been suppressed. We agree. Section 901.151, Florida Statutes provides, in pertinent part:

(2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.

§ 901.151(2), Fla. Stat. (2005).

Prior to Vila stopping the defendant, Vila had followed-up on an anonymous tip that marijuana was being grown at the residence, personally detected the odor of marijuana emanating from the residence, and observed the filled trash bags and R-Max board in the residence’s garage. Section 901.151(2) merely requires that Vila had encountered the defendant “under circumstances which reasonably indicate[d] that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state . . . .” Id. The circumstances under which Vila encountered the defendant were sufficient to satisfy this requirement.

When examining whether a traffic stop is proper, “the first and most critical question is whether the police had a reasonable articulable suspicion that illegal activity was afoot at the time they sought to stop” the defendant. See State v. Herrera, 991 So. 2d 390, 392 (Fla. 3d DCA 2008) (citing Terry v. Ohio, 398 U.S. 1 (1968)). Moreover,

Police may stop and investigate a motor vehicle when there is a “founded suspicion” of criminal activity in the mind of the police officer. “A `founded suspicion’. . . has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in light of the officer’s knowledge.”

State v. Gil, 780 So. 2d 297, 298 (Fla. 3d DCA 2001) (citing Kehoe v. State, 521 So. 2d 1094, 1095-96 (Fla. 1988), rev’d on other grounds, Dobrin v. Fla. Dep’t of Highway Safety & Motor Vehicles, 874 So. 2d 1171 (Fla. 2004)). When determining whether “there were ample grounds to give the police officer a founded suspicion of criminal activity, we look at the cumulative impact of the circumstances perceived by the officers.” Gil, 780 So. 2d at 299 (quoting Kehoe, 521 So. 2d at 1096). “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (citations omitted). Additionally, the “determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” United States v. Nunez, 455 F.3d 1223, 1226 (11th Cir. 2006) (quoting Wardlow, 528 U.S. at 125).

Vila stated in his affidavit that he had been a member of the Miami-Dade County Police Department for sixteen and a half years, was “trained in the identification of narcotics and dangerous drugs,” and was “involved in numerous cases involving seizures of hydroponics labs where hundreds of pounds of grown marijuana were handled, smelled, and seized.” The foregoing, combined with the anonymous tip, the smell of marijuana emanating from the residence, Vila’s knowledge that hydroponics grow houses are generally kept secure and secret, Vila’s observation of the defendant’s demeanor upon entering the garage and his reaction to seeing Vila, and the defendant’s subsequent departure from the garage, provided sufficient grounds for reasonable suspicion. Vila himself testified that he stopped the defendant “for suspicion.” When conducting a stop, an officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” See Alvarez v. City of Hialeah, 900 So. 2d 766, 767 (Fla. 3d DCA 2005). Given the cumulative facts to which Vila testified, Vila had reasonable suspicion to conduct an investigative stop of the defendant. As such, the evidence obtained as a result of the stop was improperly suppressed.

The State also argues that the court’s suppression of evidence obtained from the residence but not specifically set forth in search warrant was improper. The warrant obtained by Vila read, in pertinent part:

“The Premises” being in, Miami-Dade County, Florida, hereinafter referred to as: “The Premises,” the laws of the State of Florida related to narcotics or drug abuse are being violated therein, to wit: Possession of a Controlled Substance, 893.13 Florida Statutes, as evidenced by a quantity of controlled substance, to wit: marijuana, exhaust fans/vents, carbon dioxide cylinders, air conditioning units, sun circles, solar tracks, reflective light hoods, high pressure sodium vapor bulbs, ballasts, grow mediums, feeder reservoirs, drug paraphernalia, and/or currency, titles, receipts, and other documents and records evidencing illegal activity, or that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances, hereinafter referred to as “The Property.”⁴

(emphasis added).

When issuing its verbal order partially granting the motion to suppress, the trial court ruled as follows on the evidence obtained pursuant to the search warrant:

[T]here were [sic] testimony from the police officers that they recovered some beer bottles. It is clearly granted to the beer bottle [sic] and anything that is obtained from the beer bottle [sic].

There might be testimony about cigarette butt [sic] obtained or recovered as a result of that as well, it is granted as a result of cigarette butt [sic].

. . . there was no testimony of robber glove, [sic] fingerprint recovered from key cover or other things off the wheel. There was testimony from the police officer that they looked into refrigerator [sic]. I don’t have a return of the warrant to indicate what items were taken.

If in fact fingerprints were lifted from none [sic] inclusive evidence, that will be anything that could not reportedly [sic] be related to hydroponics grow house [sic], then those fingerprints would have been obtained illegally without the proper documentation on the warrant and they will be suppressed. And as would anything recovered from the refrigerator or any fingerprints recovered from the walls unless there is clearly articulated, previously articulated indication that there were things on the wall from which the fingerprints were recovered that is [sic] related to hydroponics grow house [sic].

Courts have found that “[o]fficers executing a search warrant are `required to interpret it,’ and they are `not obliged to interpret it narrowly.’” United States v. Stiver, 9 F.3d 298, 303 (3d Cir. 1993) (citing Hessel v. O’Hearn, 977 F.2d 299, 302 (7th Cir. 1992)). Furthermore, “police armed with a valid search warrant may permissibly seize items not listed in the warrant when the incriminating nature of the items is immediately apparent.” Black v. State, 630 So. 2d 609, 613 (Fla. 1st DCA 1993) (citing Horton v. California, 496 U.S. 128 (1990)). A “seizing officer is not required to `know certain items are contraband or evidence of a crime . . .’; what is required is that `the facts available to the [seizing] officer would `warrant a person of reasonable caution in the belief,’ that certain items may be . . . useful as evidence of a crime . . . .” Black, 630 So. 2d at 613-14 (citing Texas v. Brown, 460 U.S. 730, 741-42 (1983)). The beer bottles, cigarette butts and fingerprints obtained by the officers were properly seized because the officers could reasonably believe that these items would be “useful as evidence of a crime” and assist in ascertaining the identities of the individuals growing marijuana at the residence. See id. Accordingly, the beer bottles, cigarette butts, fingerprints, and any further evidence they yielded, should not have been suppressed.

The court also erred in suppressing evidence obtained from the refrigerator in the residence. “[P]olice officers are allowed to search throughout the specified premises for the items described in the warrant, so long as the areas and containers searched are ones in which the described items might reasonably be found.” State v. Weber, 548 So. 2d 846, 847 (Fla. 3d DCA 1989) (citing United States v. Ross, 456 U.S. 798, 820-21 (1982)); see also State v. Ridgway, 718 So. 2d 318, 319 (Fla. 2d DCA 1998). Once the officers searched the refrigerator and discovered marijuana, they were authorized by the warrant to seize the contraband.

Although the trial court suppressed the statements made by the defendant after he invoked his Miranda rights, it is unclear whether the court did so because it deemed the investigative stop illegal or whether the court found that the officers initiated conversation with the defendant. As such, we reverse the suppression of the post-Miranda statements and remand so that the court may consider witness testimony from officer(s) and/or defendant and rule on this issue in light of our finding that the investigative stop was proper.

Lastly, the State also appeals the trial court’s order granting the defendant’s motion to dismiss with prejudice. The motion to dismiss was based in large part on the court’s suppression of evidence obtained by the officers. Because we reverse the suppression of the evidence obtained from the investigative stop as well as the suppression of the items obtained pursuant to the search warrant, we likewise reverse the trial court’s order of dismissal in light of the evidence.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

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Courtesy of David Edelstein

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JASON TENGBERGEN, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D07-2128. District Court of Appeal of Florida, Fourth District. April 22, 2009.Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Sandra McSorley, Judge; L.T. Case No. 05-10213 CFA02.

Steven J. Hammer, Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Jason Tengbergen appeals his conviction for DUI manslaughter. He makes three claims, none of which require reversal. First, he argues that the trial court erred in denying suppression of his post-Miranda statements, as they were obtained in a two-step “question-first” custodial interrogation in violation of Missouri v. Seibert, 542 U.S. 600 (2004). We affirm the trial court, as we conclude that the statements were admissible under Oregon v. Elstad, 470 U.S. 298 (1985). Second, he claims that the court erred in admitting a police officer’s opinion on accident reconstruction without qualifying the officer as an expert. We disagree, as the court heard the evidence of the officer’s qualifications and overruled the defense objection to his testimony on that ground. Third, he claims the court erred in failing to conduct a Richardson¹ hearing with respect to the expert testimony. However, the issue was addressed pre-trial, and his trial objection was waived by his failure to object when the expert evidence was introduced. We therefore affirm.

Around 10:00 p.m. on August 6, 2005, Lieutenant Scott Breton, an off-duty Palm Beach County sheriff, was driving his marked sheriff’s vehicle in the left-hand lane northbound on Congress Avenue when he observed a vehicle speed past him about twenty miles over the speed limit. Breton sped up to catch the passing vehicle and saw it swerve to the right, hit the right-hand curb, and then jerk back into the lane of travel. The vehicle hit an object, but Breton could not tell what it was. As he passed the spot where the vehicle hit the object, he saw people and heard a woman screaming. Fearing that the vehicle had hit a person, Breton followed the vehicle which proceeded into a shopping center and then came to stop in a nearby neighborhood.

The driver, who was appellant Tengbergen, exited the vehicle yelling, “What did I do? What did I do?” Another individual approached him and yelled at Tengbergen that he had just hit somebody. Tengbergen responded, “Well, he shouldn’t have been in the f____ing road.” Breton placed Tengbergen in handcuffs and secured him inside the police vehicle. As Breton led him to the police vehicle, Tengbergen asked if he was under arrest and what was going to happen. Breton tried to keep him calm and told him that they would sort this all out.

The other individual who yelled at Tengbergen was a witness to the accident. Mr. Rivas and his brother had turned northbound onto Congress in their vehicle when they encountered Tengbergen’s vehicle which moved from the center lane into the right-hand lane, almost side-swiping the brothers’ car. Tengbergen swerved and returned to the center lane where he almost hit a pickup truck. Tengbergen continued to drift between lanes, hitting the reflectors. Rivas called 911 because the vehicle was speeding and almost hit him and another vehicle. While he was on the phone with 911, the vehicle ran a red light. Rivas saw something crossing the road and then both brothers saw something flying through the air. When Rivas got closer, he realized that the vehicle had struck a person. Rivas pursued Tengbergen’s vehicle and came upon it at the same time that Breton did. He jumped out and confronted Tengbergen. Breton took charge of Tengbergen and told Rivas to return to the victim.

Breton brought Tengbergen back to the scene of the accident. Officers were arriving at the scene, and Officer Pete Picciano of the Boynton Beach Police Department approached Tengbergen in Breton’s vehicle. Picciano asked Tengbergen what happened. At his deposition, Picciano related that Tengbergen told him that “he was driving along and thought nothing of it when he hit [the victim]. He didn’t see the police car in back of him trying to stop him after the fact.” Picciano observed that Tengbergen’s eyes were red and glassy, and he spoke with slurred speech. However, Picciano did not question him about drinking.

Officer Richard McNevin, the traffic homicide investigator for the Boynton Beach Police Department, arrived approximately a half an hour later. By that time the victim had died, and McNevin knew a homicide had occurred. He spoke with Picciano and then went over to Tengbergen who was still in handcuffs in the police vehicle. McNevin introduced himself as the lead investigator on the accident. He did not indicate that he was conducting a criminal investigation. McNevin asked Tengbergen what happened, and Tengbergen told him that “a person appeared out of nowhere and he struck him.” McNevin asked other basic information, such as what direction Tengbergen was travelling—information necessary for the accident report. The conversation was brief.

After conducting further investigation of the scene and talking to other witnesses, McNevin sought a blood sample from Tengbergen, which he obtained at 12:10 a.m. Both Picciano and McNevin testified in their depositions that McNevin read Tengbergen Miranda rights prior to blood being drawn, although McNevin was less sure about this point than Picciano. An hour later McNevin took his statement, which was recorded. McNevin read Tengbergen his rights, and Tengbergen acknowledged each one. In his statement, Tengbergen admitted to having consumed alcohol and recited the details of his evening, including hitting the victim.

Tengbergen was eventually arrested and charged with DUI manslaughter and failure to render aid. He moved to suppress all of his statements. The state and defense agreed to suppress all statements made to Picciano and those made to McNevin prior his administering Miranda warnings. The court denied the motion as to statements made to McNevin after the warnings.

At trial, McNevin testified regarding his investigation and also as to his reconstruction of the accident. He did not observe any skid marks, which would indicate that the vehicle did not take any evasive action to avoid hitting the victim. He explained the body damage to the right side of the vehicle. When the state asked McNevin if he had an opinion as to what occurred when the vehicle hit the victim, defense counsel objected that McNevin had not been qualified as an accident reconstruction expert. The state elicited his training and education provided by the police department in the field of accident reconstruction. Over objection, the court permitted McNevin to offer an opinion as to what happened immediately after Tengbergen struck the victim. McNevin opined that “[a]fter the vehicle struck the pedestrian, the pedestrian’s body rolled up on to the windshield. After impacting the windshield, and crushing in the windshield, it rolled off of the passenger side of the car and that is where the passenger’s side mirror was ripped off” and that the impact “would . . . have been in view of the driver of the vehicle at that moment.” The actual impact occurred in the bicycle lane.

Toxicologist Dustin Yateman testified that at 12:12 a.m. when the blood samples were taken, Tengbergen’s blood alcohol level was .227 and .228, which is more than double the legal limit. Using retrograde extrapolation, he calculated that Tengbergen’s blood alcohol level at the time of the incident at 10:19 p.m. was .247 to .267. In arriving at this figure, Yateman considered Tengbergen’s food consumption during the day. Yateman also considered that Tengbergen ingested his last drink approximately twenty minutes before the incident.

Although Tengbergen did not present any case in defense, he argued to the jury that the toxicologist’s sampling was incorrect and that he was not impaired at the time of the accident. The jury found him guilty of DUI manslaughter, a lesser included offense of the charge. The court sentenced him to fifteen years in prison, with credit for time served. Tengbergen appeals.

I. Denial of Suppression of Post-Miranda Statement

On appeal, Tengbergen argues that the trial court erred in denying the post-Miranda portion of his statement to McNevin, as he claims it was obtained through a two-step question-first interrogation contrary to Missouri v. Seibert, 542 U.S. 600 (2004). The trial court denied the motion to suppress his post-Miranda statement. We affirm, concluding that the statement was uncoerced, and his first statement did not taint the second statement.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Hunter v. State, 33 Fla. L. Weekly S745 (Fla. Sept. 25, 2008) (quoting Schoenwetter v. State, 931 So. 2d 857, 866 (Fla. 2006)). An appellate court accords a presumption of correctness to the trial court’s ruling on motion to suppress with regard to the trial court’s determination of historical facts, but independently reviews mixed questions of law and fact. Id. Lindo v. State, 983 So. 2d 672, 675 (Fla. 4th DCA 2008).

Oregon v. Elstad, 470 U.S. 298 (1985), the United States Supreme Court considered whether the initial failure of law enforcement officers to administer Miranda warnings taints subsequent admissions made after a suspect has been fully advised of and has waived his Miranda warnings. An officer went to Elstad’s home with a warrant for his arrest. In the presence of the suspect’s mother, the officer explained that he had a warrant for his arrest for the burglary of a neighbor’s residence. Elstad told the officer that he was there. At the station house one hour later, Elstad gave a full statement after receiving and waiving his Miranda rights. The United States Supreme Court held the second statement was admissible and voluntary.

The Court reasoned:

[A] simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will [does not] so taint[] the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Id. at 309. “[A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id. at 318.

The Court addressed a similar issue Missouri v. Seibert, 542 U.S. 600 (2004), where it considered the admissibility of statements obtained pursuant to an official policy of questioning suspects without first giving Miranda warnings and then obtaining a second statement after administering warnings. Seibert was arrested and then questioned without Miranda warnings for thirty or forty minutes until she confessed. After a twenty-minute break, the interrogating officer turned on a tape recorder, gave Seibert Miranda warnings, and resumed questioning while confronting her with her pre-warning statements. Seibert again gave a confession. During the suppression hearing, the interrogating officer testified that he made a “conscious decision” to withhold Miranda warnings pursuant to an interrogation technique he had been taught to question first, then administer warnings, and repeat the question until he obtained the answer the suspect had already provided. Id. at 605-06.

The Court upheld the suppression of the confession. In a fourjustice plurality opinion, Justice Souter stated:

The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires. . . . [U]nless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.

Id. at 611-12. The plurality framed the issue as “whether Miranda warnings delivered midstream could be effective enough to accomplish their object[ive].” Id. at 615. In making this determination, the following relevant factors should be considered:

the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.

Id.

Applying these factors, the plurality distinguished Elstad, reasoning that a reasonable person in Elstad’s position could perceive the station house questioning as a new and distinct experience, and the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. However, the circumstances of Seibert’s statement were “the opposite extreme” and encompassed a police strategy adopted to undermine Miranda warnings. Id. at 616. Reviewing the facts in Seibert, the plurality concluded that the post-warning statements were inadmissible.

In his concurring opinion, Justice Kennedy agreed that the question-first technique was designed to circumvent Miranda and obscured its meaning. However, he thought that the majority test was too broad. Instead, he proposed “a narrower test applicable only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Id. at 622. Where the two-step interrogation was not deliberately employed as a tactic, the analysis should still be governed by Elstad.

Florida courts have heretofore applied Justice Kennedy’s rule, as it represents the narrower view. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the `holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted). Justice Kennedy’s opinion provides the narrowest grounds. Jump v. State, 983 So. 2d 726, 728-29 (Fla. 1st DCA 2008); State v. Lebron, 979 So. 2d 1093, 1095 (Fla. 3d DCA 2008); State v. Pitts, 936 So. 2d 1111, 1136 (Fla. 2d DCA 2006). Accordingly, unless the officers deliberately withheld warnings, Elstad controls Tengbergen’s Miranda claim.

In this case there is no evidence that the officers employed a deliberate two-step question-first, warn-later policy. In fact, because a traffic accident occurred, the officers were required to investigate, and Tengbergen was required to provide information. See §§ 316.065(1); 316.066, Fla. Stat. The pre-Miranda statements given to both Picciano and McNevin provided only basic information regarding the accident that the officers already knew from other witnesses, such as direction of travel. The officers did not ask about his drinking or even much detail about how the accident happened. The fact that he was questioned while handcuffed in the backseat of a police vehicle without Miranda warnings does not in and of itself show a deliberate and calculated method to undermine the safeguards guaranteed in Miranda.

The un-Mirandized questioning by Picciano and then McNevin occurred close to the time of the accident. Over an hour went by before the officers obtained a blood sample from Tengbergen. Another hour passed before McNevin recorded Tengbergen’s statement on tape, including reading Miranda rights. Although Tengbergen maintains that the officer attempted to minimize the rights by telling Tengbergen he was going to read them “real quick,” the transcript of the taped statement shows that each right was read, and Tengbergen acknowledged each of them.

Even if Justice Souter’s plurality opinion in Seibert were to apply, we would still come to the conclusion that the statements were properly admitted. The first statements appear to be extremely brief and contained no detailed information—merely that required to prepare an accident report. The second statement, taken hours later, did not refer to the prior statement, and McNevin did not use the original statement to induce the subsequent one. A reasonable person would have perceived the questioning by McNevin to be separate and distinct from the earlier questioning.

We conclude that the trial court’s denial of the motion to suppress the post-Miranda statement is amply supported by the facts and the law.

II. Qualification of Expert Witness

In permitting Officer McNevin to testify as an accident reconstruction expert, the trial court overruled defense counsel’s objection to his testifying in the form of an opinion without being qualified. Although the trial court did not state that it determined the officer was an expert, the court overruled the defense objection on that ground. We conclude that the court sufficiently determined the criteria for the admission of his testimony.

The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence. Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001). The standard of review for trial court decisions concerning the qualifications of expert witnesses and the scope of their testimony is abuse of discretion. Terry v. State, 668 So. 2d 954, 960 (Fla. 1996); Gold, Vann & White, P.A. v. DeBerry, 639 So. 2d 47, 55 (Fla. 4th DCA 1994).

As the supreme court has explained:

Section 90.702 requires that before an expert may testify in the form of an opinion, two preliminary factual determinations must be made by the court under section 90.105. First, the court must determine whether the subject matter is proper for expert testimony, i.e., that it will assist the trier of fact in understanding the evidence or in determining a fact in issue. Second, the court must determine whether the witness is adequately qualified to express an opinion on the matter.

Terry, 668 So. 2d at 960. In this case, the trial court, cognizant of that standard, overruled the defense objection and permitted McNevin to offer expert opinion testimony.

After McNevin had testified for quite a while as to his investigation and his opinions as to skid marks or their absence, the point of impact, and other issues, the defense objected when the state asked McNevin his opinion “as to what occurred as the vehicle hit the person, and how the sequence of the crash occurred.” Defense counsel maintained that he had not been rendered an expert witness. The court noted that McNevin had been testifying for twenty minutes on subjects which would be subject to the same objection. The court then recited the three factors which must be present in order to admit expert testimony: (1) whether the witness will be relating information which would aid the jury; (2) whether the subject area is one for expert testimony; and (3) whether the witness has sufficient qualifications to establish the “merit” of his opinion. The court sustained the defense objection, and the state proffered McNevin’s qualifications. Defense counsel cross-examined his qualifications and then objected to McNevin testifying to his opinion.

The court overruled the defense objection and told the jury that expert witnesses are like other witnesses, except they can give their opinion. The court further instructed the jury:

[T]he law requires that you make the decision, number one whether the person is really an expert. That’s the ultimate decision. Two, that he has knowledge about the subject matter what, as to what he testifies to. And three, whether or not the opinion that is proffered is, indeed, something that you find to be reliable. I am making no declaration. The question is: Is there an objection to permitting the witness to answer the question. There is an objection, it is overruled. You may proceed. It is the jury’s decision.

The judge’s instruction to the jury paraphrased Florida Standard Jury Instruction (Criminal) 3.9(A).

While Tengbergen contends that the court erred by not “qualifying” McNevin as an expert, the trial court determined that the requirements for the introduction of expert testimony were met when it overruled the defense objection that McNevin was not qualified as an expert. Although the court did not explicitly state to the jury that it found the witness qualified as an expert, the court reasonably followed the suggestion of this court that a court should refrain from telling the jury that the witness’s testimony is being admitted as “expert testimony,” because that may be tantamount to the court commenting on the credibility of a witness. Alexander v. State, 931 So. 2d 946, 951 (Fla. 4th DCA 2006) (“the better procedure would have been to permit the witness to testify without reference to his or her status as an expert”). Chambliss v. White Motor Corp., 481 So. 2d 6, 8 (Fla. 1st DCA 1985) (“[I]t is not necessary for the court to state that the witness is qualified as an expert. In fact, it is questionable whether it is proper procedure for a court to expressly declare a witness an ‘expert’ because the jury may infer from such declaration that the court is placing its approval on the opinions of the witness.”). The court appropriately ruled, and it committed no error.

III. Absence of Richardson Hearing

A week prior to trial the court held a pretrial conference at which time defense counsel raised a Richardson issue, because the state was intending to use Officer McNevin as an accident reconstruction expert. Although the defense had taken his deposition in connection with the traffic homicide investigation and calculations he made from the data, he was not asked whether he had expert opinions on accident reconstruction. The court told the state to make the officer available to the defense if the state intended to use him as an expert. The prosecutor told the court and defense counsel that he would be calling McNevin as an expert and told defense counsel that he could arrange a time for counsel to interview McNevin. The defense apparently did not talk to McNevin prior to trial.

After McNevin testified to his various opinions on accident reconstruction, the state sought to introduce a photograph with markings on it to depict the witness’s opinions. At that point defense counsel moved for a Richardson hearing, stating that “he still has not been proffered as an expert.” The court then asked defense counsel whether he had seen the photograph before, and counsel admitted that he had seen it in the prosecutor’s office. Upon further questioning from the court, defense counsel stated the problem was “all the markings and the way it has been done.”

Later, defense counsel again complained about the entire testimony of McNevin’s accident reconstruction, claiming that he was unaware that the officer would testify as an expert. However, the court reminded counsel of the pretrial conference and the state’s representations. The court also noted McNevin had already testified to his opinions without defense counsel raising a Richardson violation. Only the photograph had not been admitted at the time of the objection, and thereafter the court denied its admission.

This Richardson issue is not preserved. First, the potential discovery violation was brought to the attention of the court a week before trial and the court required that the state provide the witness to the defense, yet the defense did not take the witness’s deposition on his expert opinions. With a week to go until trial, and the opportunity to cure any prejudice, we do not think that a Richardson violation has occurred. Second, while the defense objected to McNevin’s qualifications to give expert opinions, counsel did not raise his objection to a Richardson violation until the officer had already testified to his expert opinions. Where the defense knew about the potential testimony in advance of the trial, an objection based upon Richardson is waived when the defense does not object on those grounds prior to the witness testifying. Taylor v. State, 589 So. 2d 918 (Fla. 4th DCA 1991).

Finding no errors, we affirm the conviction and sentence.

Polen and Hazouri, JJ., concur.

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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Ronald Williams, Appellant,
v.
The State of Florida, Appellee. No. 3D07-1542 District Court of Appeal of Florida, Third District. Opinion filed April 22, 2009.An Appeal from the Circuit Court for Miami-Dade County, Julio E. Jimenez, Judge. Lower Tribunal No. 02-31254.

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

Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.

ROTHENBERG, J.

The defendant, Ronald Williams, challenges his convictions and sentences for attempted first degree murder and attempted second degree murder. We affirm.

The issue in this case is whether the trial court abused its discretion by overruling defense counsel’s objections to statements made during the State’s closing argument and denying the defendant’s motions for mistrial following these statements. While we find that the statements were improper, we affirm the defendant’s convictions because, based on the overwhelming evidence of guilt, the error was harmless. See Goodwin v. State, 751 So. 2d 537, 547 (Fla. 1999) (holding that a motion for mistrial “should be granted only when it is necessary to ensure that the defendant receives a fair trial”) (quoting Cole v. State, 701 So. 2d 845, 853 (Fla. 1997)); State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (“The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).

The defendant’s defense at trial was mistaken identification. The evidence at trial was that the victim of the attempted first degree murder (“victim #1″) knew the defendant. Victim #1 testified that the defendant approached him (in broad daylight at a flea market), and at a distance of approximately two feet, the defendant pointed a firearm at him, pulled the trigger, but the firearm jammed. When the defendant began to back away, victim #1 turned to leave, but when he heard “Cynthia” (“the eyewitness”) screaming, he turned and saw the defendant behind him and he began to run, with the defendant chasing him and shooting at him. Victim #1 was ultimately shot in the back. Victim #1 positively identified the defendant as the shooter.

The eyewitness also positively identified the defendant as the shooter, and she too knew the defendant, with whom she had grown up. The eyewitness testified that she saw the defendant point a firearm at victim #1, pull the trigger, and when the firearm jammed, she observed the defendant retreat, return, and shoot at the defendant while chasing him. She testified that the defendant shot at victim #1 at least three or four times.

Victim #2 is a fourteen-year-old girl, who was also shot during the incident. She described the man she saw with the gun, and subsequently positively identified the defendant both from photographs and at trial.

Additionally, the result of the gunshot residue test performed on the defendant, tested positive, and while the defendant claimed that victim #1 had a motive to lie, there was no evidence indicating that either the eyewitness, who grew up with the defendant, or victim #2 had a motive to lie.

Although we conclude that there is no reasonable possibility that the complained-of errors contributed to the defendant’s convictions or denied the defendant his right to a fair trial, we again find it necessary to admonish the prosecutor and remind all lawyers who practice in this state, that closing arguments must be confined to the evidence in the record or which can reasonably be inferred from the evidence. See Wilson v. State, 798 So. 2d 836 (Fla. 3d DCA 2001). Additionally, closing arguments “must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.” Jackson v. State, 832 So. 2d 773, 778 (Fla. 4th DCA 2002) (quoting Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1989)). As Judge Blue so aptly stated: “Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.” Luce v. State, 642 So. 2d 4, 4 (Fla. 2d DCA 1994) (Blue, J., concurring specially).

Affirmed.

RAMIREZ, Judge (concurring).

Respectfully, I do not believe the majority opinion does justice to what the prosecution did in this case. In my view, the prosecution’s tactics were outrageous and unfortunately were compounded by the trial court overruling defense counsel’s objections.

The majority opinion sets out the evidence in this case. After reading the transcript, it is difficult to discern what the defense was in this case. The shooting ostensibly was related to an apparent love triangle. Norton Altidor, referred to as victim #1 in the majority opinion, was a twelve-time convicted felon. He testified that on the day of the shooting he went to the flea market and saw Ronald Williams with his girlfriend. Altidor admitted that he used to have a relationship with Williams’ girlfriend and that he was arrested once for beating her so badly she had to be hospitalized. Altidor claimed that Williams approached him with a gun and when he squeezed the trigger the gun jammed. Williams walked off and several seconds later, according to Altidor, Williams once again approached him with a gun. Altidor claimed that he attempted to run away and as he was running, Williams shot him in the back.

Cynthia, who worked at the flea market and was an admitted drug user, claimed that she was friends with both Williams and Altidor. She corroborated Altidor’s testimony that defendant was the person who fired the shots at the flea market that day. Likewise, victim # 2 identified Williams from a photograph. The gunshot residue test results were positive. Given all this evidence, one would think the prosecutor could stick to the facts. But that is not what happened.

Despite the fact that Williams did not testify and no State witness offered any testimony concerning any statement made by the defendant, the State attributed the following statement to defendant during his closing argument:

Now this defendant was with [his girlfriend]. He wanted to take the law into his own hands, because Mr. Altidor knew that he was wanted for questioning on that case, on the battery case with [the girlfriend]. So what this defendant does is this, he tries to man up. He tells [his girlfriend]:

I’m going to be a bigger man. I don’t want you going back to—with Norton Altidor. I’m going to take care of this for everybody.

Defense counsel immediately objected and moved for a mistrial. Defense counsel argued that the prosecutor had just told the jury that defendant had made an incriminating statement that was not introduced into evidence. Inexplicably, the trial judge overruled defense counsel’s objection and denied his motion for mistrial.

Encouraged by the court’s ruling, the prosecutor compounded the error by arguing:

This is street justice. It is not uncommon in that area. There were many people that were at the flea market that day. But they knew this defendant. They also know Norton. They know that they are not nice guys. They didn’t want to come foward. You only heard from—

The defense again objected, and the trial judge again overruled defense counsel’s objection.

After deliberations, the jury found Williams guilty of attempted first degree murder as to count one and attempted second degree murder as to count two, which was a lesser included offense. The court sentenced Williams to forty years in prison with a twenty-five year minimum-mandatory sentence.

The Florida Supreme Court Ruiz v. State, 743 So. 2d 1 (Fla. 1999), recognized that a criminal trial is a neutral arena where both sides place evidence for the jury’s consideration. The role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury’s view with personal opinion, emotion, and non-record evidence. Id. at 4. The Florida Supreme Court stated:

The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government’s vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.

Id. Therefore, prosecutors must confine their closing arguments to evidence in the record and must not make comments which could not be reasonably inferred from that evidence. Rivero v. State, 752 So. 2d 1244 (Fla. 3d DCA 2000); Williamson v. State, 459 So. 2d 1125 (Fla. 3d DCA 1984). An argument suggesting to the jury that there is evidence harmful to the accused that the jury did not hear is highly improper. See Ford v. State, 702 So. 2d 279 (Fla. 4th DCA 1997); Stewart v. State, 622 So. 2d 51, 56 (Fla. 5th DCA 1993) (concluding that defendant was entitled to new trial where the prosecutor’s statement clearly suggested that the State had additional evidence and proof of the defendant’s guilt that it had not provided to the jury, and the curative instruction did little to dispel the suggestion); Landry v. State, 620 So. 2d 1099, 1102 (Fla. 4th DCA 1993); Thompson v. State, 318 So. 2d 549, 551 (Fla. 4th DCA 1975).

In this case, despite the fact that Williams did not testify and no State witness offered any testimony concerning any statement made by Williams, the State contrived a dialogue between Williams and his girlfriend — that he wanted to take the law into his own hands, that he knew Altidor was wanted for questioning, that he was going to “man up.” He then tells his girlfriend, “I’m going to be a bigger man. I don’t want you going back to — with Norton Altidor. I’m going to take care of this for everybody.” Admission of this would have been beneficial for the State . . . had it happened. But as far as the record is concerned, it only occurred in the prosecutor’s imagination. By overruling defense counsel’s objection, the trial judge in essence told the jury that they could consider the fact that Williams had made an incriminating statement. No such statement had been introduced at trial. Thus, the jury could surmise that the prosecution must have additional evidence that had not been presented at trial.

The problem was compounded when the prosecutor proceeded to argue that in the area where this crime took place, witnesses were afraid to come forward. There were other witnesses who could have testified but they knew Williams and the victim were not nice guys and therefore, they were afraid to come forward.

There was no evidence that Williams had threatened any witnesses, that any of the witnesses knew him, or that he was not a nice guy. This, too, the trial judge overruled without explanation, thus implying that the prosecutor may have spoken to other witnesses who had incriminating evidence against William but refused to testify because they were afraid of the defendant who was not a nice guy.

It is axiomatic that lawyers can never argue facts not in evidence. It is particularly abhorrent where a prosecutor, representing the people of the State of Florida, resorts to such tactics. This is particularly true where a prosecutor suggests that a witness did not appear due to fear of the defendant, where there is no evidentiary support for the proposition. See Johnson v. State, 747 So. 2d 436, 439 (Fla. 4th DCA 1999).

Tindal v. State, 803 So. 2d 806 (Fla. 4th DCA 2001), the prosecutor argued that there were other witnesses in the case who failed to appear due to the fact that they were scared. Id. at 809. In reversing the defendant’s conviction, the Fourth District recognized the following:

First, because the prosecutor is an agent of the State, such comments imply that the prosecutor has unique knowledge that has not been presented to the jury. Second, the comment was “highly irregular, impermissible, and prejudicial” because it improperly implied that appellant engaged in witness tampering or suborning perjury, both criminal offenses. Thus, the prosecutor’s comments went beyond a fair reply.

Id. at 810 (citations omitted). Furthermore, there was no evidence introduced at trial that defendant was not a nice guy. Williams did not testify and, therefore, there was no evidence introduced concerning his criminal record. The prosecutor’s statement that the uncalled witnesses knew defendant was not a nice guy left the jury with the impression that defendant had a criminal past which was clearly inadmissible in this case.

The majority frames the issue as to whether the trial court abused its discretion in overruling defense counsel’s objections and denying the motion for mistrial. Respectfully, the trial court has no discretion to allow a prosecutor to make up a dialogue between Williams and his girlfriend. A trial court has no discretion to allow the prosecutor to attack the defendant as “not a nice guy” where his character is not in evidence. A trial court has no discretion to allow the prosecutor to suggest that other witnesses would have come forward except they were afraid of the defendant.

The majority then acknowledges that the statements were improper. Indeed. Had the trial court sustained the objection and given a curative instruction, I readily would agree to affirm. But the jury in this case was left with the impression that Williams had made statements about his motives where in fact he was denying that he was the perpetrator. The jury also was told that Williams was not a nice guy who had threatened other potential witnesses into not testifying.

The only viable argument in this case is that the errors were harmless. I must reluctantly agree. Inexplicably, the prosecutor in this case felt obligated to push the envelope by inventing dialogue, attacking Williams’ character and blaming the lack of witnesses on fear of Williams. The prosecutor must have felt that the admissible evidence in this case was insufficient to convict, otherwise he would not have injected such obvious error into the proceedings

Over the years, it has been my unfortunate experience to see a long procession of assistant State attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel’s questions during oral argument. If nothing else, I will henceforth publish their names so that their questionable tactics appear in the permanent record of the Southern Reporter.

I reluctantly join today’s decision, mindful that I may be promoting the notion that winning is more important than giving defendants a fair trial. But given the overwhelming evidence of Williams’ guilt, I have to agree that under State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), “there is no reasonable possibility that the error contributed to the conviction.” I thus concur in the result.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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CARLOS MACIAS, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D07-1071. District Court of Appeal of Florida, Fourth District. April 22, 2009.Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; James W. McCann, Judge; L.T. Case No. 561993CF002513A.

Carlos Macias, Wewahitchka, pro se.

No appearance required for appellee.

On Remand from the Supreme Court of FloridaPER CURIAM.

This case is returned to us on remand from the Supreme Court of Florida, Macias v. State, SC07-1229 (Feb. 26, 2009). The Supreme Court quashed our decision and remanded the case for “reconsideration upon review of the record and application of [the] Court’s decision in Saintelien.” Id.

We have reviewed Saintelien v. State, 990 So. 2d 494 (Fla. 2008). There, the supreme court quashed our decision that held that a rule 3.800 motion was not the proper vehicle for reviewing a defendant’s designation as a sexual predator. The supreme court reached the opposite conclusion and held “that a defendant may seek correction of an allegedly erroneous sexual predator designation by filing a rule 3.800(a) motion to correct an illegal sentence in criminal court.” Id. at 497.

Saintelien was pending in the supreme court when we affirmed the trial court’s denial of the defendant’s rule 3.800 motion in this case.¹ We now know that a rule 3.800 motion can be used to review the issue. However, the supreme court was careful to limit review “to cases where it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.” Id.

Upon review of the June 2006 motion and record attached to the state’s response below, it is clear that the defendant is not entitled to relief. The trial court correctly denied his motion. We note also that in his direct appeal from his conviction and sentence, the defendant raised the propriety of his sexual predator designation. This court affirmed and found “that the state presented the necessary statutory predicate in order to designate appellant a sexual predator.” Macias v. State, 708 So. 2d 1044, 1044 (Fla. 4th DCA 1998). Thus, the record clearly establishes that the defendant meets “the criteria for designation as a sexual predator.” Id. We therefore affirm.

Affirmed.

Farmer, May and Damoorgian, 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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Hector Alfredo Ubilla, Appellant,
v.
The State of Florida, Appellee. No. 3D07-1049 District Court of Appeal of Florida, Third District. Opinion filed April 22, 2009.An Appeal from the Circuit Court for Miami-Dade County, Mark King Leban, Judge, Lower Tribunal No. 97-24761.

Hector Alfredo Ubilla, in proper person.

Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.

Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

WELLS, J.

Hector Ubilla appeals from concurrent sentences as a violent career criminal following convictions for burglary of an unoccupied structure (count I) and grand theft (count II) in 1999. See § 775.084(1)(c), Fla. Stat. (1997). For the following reasons, we affirm the sentence imposed for the burglary conviction, but reverse the sentence imposed for grand theft.

Following a stipulation by Ubilla that he qualified for sentencing as a violent career criminal under section 775.084(1)(c) of the Florida Statutes, Ubilla was sentenced to two concurrent fifteen year, ten year minimum mandatory sentences as a violent career criminal in this case. These sentences were affirmed by this court.

Ubilla subsequently filed a motion to correct illegal sentence claiming that his attorney had mistakenly stipulated to his qualification as a violent career criminal, and that his prior convictions did not meet the criteria set forth in section 775.084. At a hearing on this motion, the State introduced evidence of five prior convictions for either attempted burglary or burglary and proved that Ubilla had been released from prison within five years of the conviction for which he was being sentenced. Although Ubilla argued that the burglaries for which he had previously been convicted were of unoccupied structures and thus were not forcible felonies for which a section 775.084 sentence could be imposed, and that grand theft was not a crime for which a violent career criminal sentence could be imposed, the trial court again sentenced him to two concurrent fifteen year, ten year minimum mandatory violent career criminal sentences. No appeal was prosecuted from this sentence.

Undaunted, Ubilla filed additional motions to correct his sentences, this time claiming that a prior conviction for attempted burglary could not be utilized as a qualifying predicate offense for a violent career sentence. Although these motions were denied, they were reversed on appeal following the State’s confession of error. See Ubilla v. State, 922 So. 2d 456 (Fla. 3d DCA 2006).

On remand, the State again introduced evidence of four prior convictions for burglary of either unoccupied structures or of a conveyance. Two of these were treated as a single conviction since the sentences were imposed on the same day. Although these three convictions for burglary appeared to qualify Ubilla for a violent career criminal sentence, he argued that he did not qualify because neither the burglary for which he was being sentenced, nor those being used to habitualize him, involved the use or threat of physical force or violence so as to qualify him for habitualization under section 775.084(1)(c). For yet a third time, the same concurrent fifteen year, ten year minimum sentences have been imposed, bringing us to the current appeal.

While we agree that the sentence imposed for the burglary conviction is appropriate, the sentence for the grand theft conviction is not. Ubilla’s argument that burglary of an unoccupied dwelling does not constitute a forcible felony that will support his sentence as a “violent career criminal” under section 775.084 of the Florida Statutes has been repeatedly rejected by this Court. See Hernandez v. State, 960 So. 2d 816, 817 (Fla. 3d DCA 2007) (citing Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002)); Diaz v. State, 837 So. 2d 436 (Fla. 3d DCA 2002); Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002). In a case strikingly similar to this one, this Court confirmed that convictions for burglary of an unoccupied structure qualify for sentencing as a violent career criminal when the burglary at issue is either the primary felony for which sentence is being imposed or a qualifying predicate offense:

Defendant-appellant Rodriguez was convicted of burglary of an unoccupied structure and other offenses. On the burglary count he was sentenced as a violent career criminal.

In his motion the defendant contends that he does not actually qualify as a violent career criminal. He reaches that conclusion because his three predicate offenses were all prior convictions for burglary of an unoccupied structure. He contends that these offenses do not qualify him as a violent career criminal.

The violent career criminal statute provides, in pertinent part, that qualifying offenses include “[a]ny forcible felony, as described in s.776.08.” § 775.084(1)(c)1.a., Fla. Stat. (Supp. 1998).

Section 776.08, Florida Statutes (1997), provides:

776.08 Forcible felony.-”Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

(Emphasis added).

Because burglary is an enumerated forcible felony, it follows that the defendant qualifies under the statute. Section 776.08 does not distinguish between burglary of an occupied or unoccupied structure or conveyance. See State v. Emmund, 698 So. 2d 1318, 1319 & n. 2. (Fla. 3d DCA 1997).

The defendant points out that the final portion of section 776.08 refers to “any other felony which involves the use or threat of physical force or violence against any individual.” He contends that the phrase “involves the use or threat of physical force or violence against any individual” must be read as a limitation on all of the crimes listed in the forcible felony statute. Thus, under the defendant’s reading, a burglary would be a forcible felony only if in the particular circumstances of the crime, there had been the use or threat of physical force or violence against an individual.

We do not agree with that reading of the statute. As we view the matter, the definition includes all enumerated felonies, plus any additional felony which involves the use or threat of physical force or violence against an individual. See Hudson v. State, 800 So. 2d 627, 628-30 (Fla. 3d DCA 2001) (on motion for rehearing granted) (analyzing the non-enumerated felony of shooting or throwing a deadly missile in violation of section 790.19, Florida Statutes).

Affirmed.

Rodriguez, 826 So. 2d at 465 (footnote omitted).

Ubilla’s violent career criminal sentence for burglary of an unoccupied structure is, therefore, affirmed.

However, the violent career criminal sentence imposed on his theft conviction must be reversed because theft does not qualify as either a predicate offense or as a primary offense for which such a sentence may be imposed. See § 775.084(1)(c)1.a.-g., Fla. Stat. (1997) (listing the primary and predicate qualifying offenses as aggravated stalking, aggravated child abuse, aggravated abuse of an elderly person; lewd, lascivious, or indecent conduct; escape; felony violation of chapter 790 involving use or possession of a firearm; and a forcible felony under section 776.08); § 776.08, Fla. Stat. (1997) (defining a forcible felony as “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual”). Since theft is not listed in section 775.084(1)(c) as either a primary or a predicate offense, and since theft does not by definition involve the use or threat of physical force or violence, it does not qualify as either a primary or predicate qualifying offense for violent career criminal enhancement under section 775.084. See § 812.014(1)(a)-(b), Fla. Stat. (1997) (“A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to, either temporarily or permanently: (a) [d]eprive the other of a right to the property or a benefit from the property [or] (b) 17> [a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property.”).

Accordingly, Ubilla’s fifteen year, ten year minimum mandatory sentence for burglary is affirmed; his violent career criminal sentence for theft is reversed and remanded to the court below for re-sentencing on this count alone.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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ALBERTOINE NORDELUS, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D04-2756. District Court of Appeal of Florida, Fourth District. April 22, 2009.Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Eileen M. O’Connor, Judge; L.T. Case No. 01-123 CF10A.

Mark Skipper of Mark Skipper, P.A., Fort Lauderdale, for appellant.

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

On Remand From The Florida Supreme Court

PER CURIAM.

Appellant challenges the trial court’s order summarily denying his motion for postconviction relief under rule 3.850. We initially reversed the order, finding that the state had failed to conclusively refute his allegation that his plea to DUI manslaughter was involuntary because neither his attorney nor the trial judge had informed him that his license would be revoked as a result of his conviction. Nordelus v. State, 889 So. 2d 910 (Fla. 4th DCA 2004). We concluded that this was a direct consequence of the plea and thus was something about which a defendant must be advised upon entering a plea. We certified conflict with State v. Bolware, 999 So. 2d 660 (Fla. 1st DCA 2003). The supreme court held Bolware v. State, 995 So. 2d 268 (Fla. 2008), that revocation of a driver’s license does not constitute punishment and thus is a collateral, not direct, consequence of a plea. It therefore was not ineffective assistance of counsel to fail to advise the defendant of this consequence. The supreme court quashed our opinion and remanded for reconsideration.

Based on Bolware, we thus affirm as to appellant’s first issue.

We reverse, however, on appellant’s second claim, as we did in our prior opinion. He alleged that his plea was also involuntary because counsel misadvised him that the trial court could place him on probation following his plea. He claims that had he known that a prison sentence was mandatory he would not have entered a plea. As we noted in our previous opinion, the state has not conclusively refuted this claim. We reverse for attachment of portions of the record which conclusively refute this claim or for an evidentiary hearing.

Warner, Polen and Stevenson, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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WAYMON KIRKLAND, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-5181 District Court of Appeal of Florida, First District. Opinion filed April 21, 2009.An appeal from the Circuit Court for Leon County. Kathleen F. Dekker, Judge.

Waymon Kirkland, pro se, Appellant.

Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant appeals the denial of a rule 3.800(a) motion arguing that his prison release reoffender (PRR) sentence imposed for robbery by sudden snatching is improper. A conviction for robbery by sudden snatching cannot subject the appellant to a PRR sentence. See Thomas v. State, 983 So. 2d 746, 747 (Fla. 4th DCA 2008). We therefore reverse the trial court’s summary denial of the appellant’s postconviction motion and remand for the trial court to resentence the appellant without the PRR designation.

REVERSED AND REMANDED.

BARFIELD, WEBSTER, and PADOVANO, JJ., Concur.

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

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L.R.L., Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-2418. District Court of Appeal of Florida, Second District. Opinion filed April 17, 2009.Appeal from the Circuit Court for Manatee County, Marc B. Gilner, Judge.

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

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

NORTHCUTT, Chief Judge.

L.R.L. appeals a restitution order following his delinquency adjudication for grand theft of a motor vehicle. He challenges the $2500 awarded for items that were inside the vehicle at the time it was stolen. We reverse.

This case involves the theft of a truck from the parking lot of a construction company. No one saw the theft, but the police were notified when the stolen vehicle was spotted on the road several days later. L.R.L. was the driver and was apprehended. He later admitted that he knew the truck was stolen but denied that he was the one who stole it from the parking lot.

At the restitution hearing, the victim testified about damage to the truck. L.R.L. does not challenge the amount awarded for this damage. The victim also testified about items that were in the truck at the time it was stolen—technical drawings, a laptop, and a camera. L.R.L. objected to paying restitution for these items. He argued then, as he does on appeal, that the State failed to offer any evidence connecting him to the loss of these items. We agree.

The statute applicable to juveniles provides that a child may be ordered to pay restitution “for any damage or loss caused by the child’s offense.” § 985.437(2), Fla. Stat. (2007). The statute applicable to adults provides that restitution is properly awarded for “[d]amage or loss caused directly or indirectly by the defendant’s offense” and “[d]amage or loss related to the defendant’s criminal episode.” § 775.089(1)(a), Fla. Stat. (2007). The courts have treated the two restitution statutes in a similar fashion. T.J.N. v. State, 977 So. 2d 770, 771 n.1 (Fla. 2d DCA 2008).

Here, there was no evidence that the loss of items inside the vehicle was caused directly or indirectly by L.R.L.’s offense, nor was there evidence that the loss was related to his criminal episode. L.R.L. testified that the items were not in the truck when he received it. His grand theft conviction was based on his knowing possession of stolen property; the State introduced no evidence to show that L.R.L. was the actual thief. “[I]f a defendant possesses property that he knows is stolen, he can be convicted of theft.” M.D.S. v. State, 982 So. 2d 1282, 1284 (Fla. 2d DCA 2008).

The State presented no evidence that L.R.L. was ever in possession of the items missing from the truck after it was recovered. Thus, we conclude that the court erred in awarding $2500 in restitution for these items. See Crosby v. State, 637 So. 2d 341 (Fla. 2d DCA 1994) (concluding that State failed to connect victim’s loss of cattle to defendants’ criminal acts); Dyer v. State, 622 So. 2d 1158 (Fla. 5th DCA 1993) (reversing restitution award for ring missing from stolen vehicle when State failed to establish that loss of ring was connected to defendant’s theft of vehicle); Moore v. State, 623 So. 2d 842 (Fla. 5th DCA 1993) (reversing restitution award for tools lost from stolen truck when defendant testified that he bought stolen truck but denied that tools were inside); cf. DeLong v. State, 638 So. 2d 1054 (Fla. 2d DCA 1994) (distinguishing Moore and affirming restitution for personal items inside stolen vehicle when vehicle was recovered within a few hours of theft and defendant never testified that the items were not in the car when he took possession). Accordingly, we reverse the award of $2500 in restitution. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

FULMER and KHOUZAM, JJ., Concur.

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MONTEZ BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-5039. District Court of Appeal of Florida, Second District. Opinion filed April 17, 2009.Appeal from the Circuit Court for Manatee County; Janette Dunnigan, Judge.

James Marion Moorman, Public Defender, and Elizabeth Greer, Special Assistant Public Defender, Bartow, for Appellant.

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

NORTHCUTT, Chief Judge.

A jury found Montez Brown guilty of trafficking in cocaine, trafficking in heroin, and possession of paraphernalia. We reverse Brown’s conviction for trafficking in cocaine because the evidence was insufficient to prove that he possessed a trafficking amount of that drug. We affirm his other convictions without discussion.

Law enforcement arrived at a residence in Bradenton to execute a search warrant. Before the search, a confidential informant entered the house with marked money. The officers observed the informant and Brown leave the residence together and stopped them. The informant no longer had the money and instead had a quantity of drugs. Brown was arrested. A SWAT team then entered the house and found Brown’s girlfriend inside. A detective discovered a box of razor blades, powder cocaine, heroin, bags, and a scale in plain view on the dining room table. In the kitchen, the detective found a trafficking amount of powder cocaine in a kitchen drawer. He also noticed glass pots that appeared to contain cocaine residue.

The officers found men’s clothing in the home. Brown said he did not live at the house but he sometimes slept there. Mail addressed to his girlfriend was also discovered.

The detective searched Brown and found $4490 in cash in his pocket, which included the marked money the informant had used to purchase drugs. After he was advised of his Miranda¹ rights, Brown admitted that the cash was his. He also stated that his fingerprints would be found on the razor blades discovered in the dining room and the glass pots found in the kitchen. The detective asked Brown if the cocaine discovered in the kitchen drawer was his, but Brown refused to answer.

Because Brown was not found in actual possession of the contraband, the State was required to prove that he constructively possessed it. When contraband is found in jointly occupied premises, the State has the burden of proving that the accused knew of the presence of the drug and could exercise dominion and control over it. Wagner v. State, 950 So. 2d 511, 512 (Fla. 2d DCA 2007). Such knowledge and control will not be inferred; the State must establish these elements by independent proof. Robinson v. State, 975 So. 2d 593, 595 (Fla. 2d DCA 2008).

The State certainly presented proof that Brown constructively possessed the paraphernalia and drugs found on the dining room table as well as the drugs discovered in the glass pots. All these items were in plain view when law enforcement entered the residence from which Brown had departed mere moments before the search. See Brown v. State, 428 So. 2d 250, 252 (Fla. 1983) (“[J]oint occupancy, with or without ownership of the premises, where contraband is discovered in plain view in the presence of the owner or occupant is sufficient to support a conviction for constructive possession.”).

But the State failed to present evidence that the cocaine in the kitchen drawer was in plain view. The detective’s trial testimony was somewhat murky concerning whether the kitchen drawer was open or closed before he discovered the drugs within. When the court reviewed the detective’s testimony in connection with Brown’s motion for judgment of acquittal, it commented: “well, there’s no other evidence as to whether the kitchen—whether the drawer was open when the officer went through.” At trial and in this appeal, the defense maintained that the drawer was closed. The State does not dispute this fact on appeal. More to the point, at trial the detective never testified that the cocaine in the drawer was in plain view. In fact, on cross-examination a detective admitted that he assumed those drugs were not in plain view because his report did not state that they were.

Because the State’s proof did not establish plain view, it had to present independent proof that Brown had knowledge of the cocaine in the drawer. See Robinson, 975 So. 2d at 595. The fact that other drugs were in plain view did not permit an inference that Brown knew that cocaine was concealed in the kitchen drawer. See Santiago v. State, 991 So. 2d 439, 442 (Fla. 2d DCA 2008). Brown did not admit that he possessed or knew about that cocaine, nor did the State present any forensic evidence or testimony that tied Brown to it. As Judge Casanueva’s thorough discussion in Santiago establishes, this court has long held that mere proximity to contraband in a jointly occupied premises does not prove the elements of the crime of constructive possession. Id. at 441-44.

Brown’s conviction for trafficking in cocaine was based solely on his purported possession of the cocaine in the drawer. Although the police saw cocaine in plain view on the dining room table, that cocaine was not submitted for testing and was not introduced into evidence at trial. Because the State did not prove that Brown possessed the only cocaine tested and introduced into evidence, he could not be convicted of any crime of cocaine possession. We reverse Brown’s conviction for trafficking in cocaine, and we remand with directions to enter a judgment of acquittal on that charge and to strike Brown’s corresponding sentence.

Affirmed in part, reversed in part, and remanded.

WHATLEY and LaROSE, JJ., Concur.

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Notes:

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EDUARDO BRACERO, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-3989. District Court of Appeal of Florida, Second District. Opinion filed April 17, 2009.Appeal from the Circuit Court for Polk County, Michael E. Raiden, Judge.

James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Chief Judge.

Eduardo Bracero was convicted of burglary of a conveyance with an assault or battery and attempted false imprisonment stemming from a somewhat bizarre incident in a mall parking lot. We affirm the convictions without comment, but we must reverse the sentences and remand for resentencing before a different judge.

The facts of the crimes are not essential to the issue before us. Suffice to say that Bracero maintained his innocence throughout the proceedings. He testified that he believed the victim had his wallet and that he acted only to retrieve this property. As shown by its verdicts, the jury rejected his theory of defense.

The trial judge also rejected Bracero’s defense, a point he made clear at sentencing. Bracero had no prior record; the lowest recommended sentence on the scoresheet was about three years in prison; and the State made no specific request as far as sentence length but asked for an extended term of probation after prison. Yet the judge imposed sentences of twenty years in prison for the burglary and a consecutive five years in prison for attempted false imprisonment.

Bracero argues, and we agree, that the sentences are fundamentally erroneous because the judge’s comments demonstrated that the lengths of the sentences were improperly based on Bracero’s continued protestations of innocence. The judge began the sentencing hearing with preliminary comments advising Bracero that he would not listen to any claims of innocence or any attempts to insult the victim, which is how the judge viewed Bracero’s defense at trial. Noting that Bracero potentially faced life in prison, the judge announced he had an unspecified range in mind that did not contemplate imposing the maximum possible sentence. “But,” he said, “if I hear any more attempts to slander the victim, the entirely innocent victim in this case, I may reconsider what I just said about the maximum possible sentence.”

Bracero, however, was steadfast in his claims of innocence, which he expressed when given the opportunity to speak. Bracero tried to explain his view that the charges were motivated by a conspiracy and that he was prejudiced by an inadequate police investigation. The judge finally cut Bracero off and ordered him to have a seat, later telling him not to open his mouth again. The judge advised that the sentences he imposed—a total of twenty-five years in prison—were at the maximum end of the range he had had in mind and were motivated in part by Bracero’s attitude and his total lack of remorse.

A sentencing court has wide discretion regarding the factors it may consider when imposing a sentence. But “it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004) (finding ineffective assistance based on appellate counsel’s failure to raise due process violation when court had considered criminal defendant’s assertion of innocence at sentencing). “A trial court violates due process by using a protestation of innocence against a defendant.” Holton v. State, 573 So. 2d 284, 292 (Fla. 1990). “The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt.” Id.

The judge’s remarks at Bracero’s sentencing leave no doubt that the court considered Bracero’s claim of innocence as a factor in determining the sentences. This was a violation of due process. Accordingly, we reverse the sentences and remand for resentencing before a different judge.

While this disposition renders Bracero’s last issue moot, we note his argument because it has merit. Bracero contends that the judge erred in failing to sua sponte order a competency evaluation when Bracero’s remarks during the sentencing hearing suggested that he was not competent, something that the judge actually remarked upon. Judges have an independent obligation to order a competency evaluation under Florida Rule of Criminal Procedure 3.210(b) when the court has reasonable ground to believe a criminal defendant is not mentally competent to proceed during a material stage of a criminal proceeding. See, e.g., Lane v. State, 388 So. 2d 1022, 1025 (Fla. 1980) (“[T]he trial court has the responsibility to conduct a hearing for competency to stand trial whenever it reasonably appears necessary, whether requested or not, to ensure that a defendant meets the standard of competency . . . .”). Because we are remanding for further proceedings, defense counsel will have the opportunity to seek a competency determination if such is warranted at the time.

Convictions affirmed; sentences reversed; remanded for resentencing.

VILLANTI and CRENSHAW, JJ., Concur.

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