Florida Criminal Law Opinions

ANTHONY KEVIN COLLINS, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 5D09-737. District Court of Appeal of Florida, Fifth District. Opinion filed May 29, 2009.Petition to Invoke All Writs

A Case of Original Jurisdiction.

Anthony Kevin Collins, Daytona Beach, pro se.

No Response for Respondent.

PER CURIAM.

Petitioner, Anthony Kevin Collins, was convicted of burglary of a structure. Collins did not appeal.

Since his conviction and sentence became final, Collins has extensively litigated his case in several courts, state and federal. Because he appeared to be abusing the legal process as it related to his criminal case, this court issued a show cause order pursuant to State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999). In response, Collins did not address his abuse of process but merely reargued his criminal case one more time.

We conclude Collins’ most recent All Writs petition is frivolous and an abuse of process. Isley v. State, 652 So. 2d 409, 411 (Fla. 5th DCA 1995) (”Enough is enough.”). Accordingly, in order to conserve judicial resources, we prohibit Collins from filing with this Court any further pro se pleadings concerning Volusia County, Circuit Court Case No. 2005-32029-CFAES. The Clerk of this Court is directed not to accept. any further pro se filings concerning this case from Collins. Any more pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk of this Court is further directed to forward a certified copy of this opinion to the appropriate institution for disciplinary procedures as provided in sections 944.09 and 944.279, Florida Statutes.

DENIED; Future Pro Se Criminal Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

PALMER, C.J., TORPY and EVANDER, JJ., concur.

EURYIA MOBLEY, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-2650. District Court of Appeal of Florida, Second District. Opinion filed May 29, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County, Anthony K. Black, Judge.

LaROSE, Judge.

Euryia Mobley appeals the summary denial of his rule 3.850 motion seeking relief from his conviction for possession of a firearm by a convicted felon. See § 790.23, Fla. Stat. (2004). We find merit in one of Mr. Mobley’s claims and, consequently, reverse as to that claim. We affirm, without further discussion, the other claims raised by Mr. Mobley.

Police officers executed an arrest warrant for Mr. Mobley after he failed to report to his probation officer. Mr. Mobley barricaded himself inside his girlfriend’s house; he refused to come out. Entering through an unlocked door, five officers swept through the house.¹ Eventually, they found Mr. Mobley hiding in a bathroom. The door opened and a dog ran out. Next, Mr. Mobley’s girlfriend exited the bathroom and an officer took her outside. Several minutes later, Mr. Mobley came out.

The officers handcuffed him, took him outside, and secured him in a patrol car. Corporal Thurman went back inside the house, ostensibly to see if anyone else was in the bathroom. Upon entering that room, he saw the butt of a gun protruding from a makeup bag. Ultimately, Mr. Mobley was convicted for possession of a firearm by a convicted felon. We affirmed his direct appeal. See Mobley v. State, 928 So. 2d 348 (Fla. 2d DCA 2006) (table decision).

In his postconviction motion, Mr. Mobley alleges that his lawyer was ineffective for failing to move to suppress the gun. According to Mr. Mobley, the post-arrest search of the bathroom and seizure of the gun were illegal. The postconviction court disagreed, concluding that the officers could conduct a visual sweep after Mr. Mobley’s arrest. We review this legal conclusion de novo. See Balmori v. State, 985 So. 2d 646, 649 (Fla. 2d DCA 2008).

Section 901.21, Florida Statutes (2004), provides:

(1) When a lawful arrest is effected, a peace officer may search the person arrested and the area within the person’s immediate presence for the purpose of:

(a) Protecting the officer from attack;

(b) Preventing the person from escaping; or

(c) Discovering the fruits of a crime.

(2) A peace officer making a lawful search without a warrant may seize all instruments, articles, or things discovered on the person arrested or within the person’s immediate control, the seizure of which is reasonably necessary for the purpose of:

(a) Protecting the officer from attack;

(b) Preventing the escape of the arrested person; or

(c) Assuring subsequent lawful custody of the fruits of a crime or of the articles used in the commission of a crime.

Corporal Thurman returned to the bathroom for a “protective sweep” even though all occupants of the house were outside. On the facts before us, we see no lawful reason for a warrantless search of the bathroom.

Maryland v. Buie, 494 U.S. 325 (1990), is strikingly similar. In Buie, police went to Mr. Buie’s house to arrest him. Id. at 328. Several officers fanned out through the first and second floors. Id. Mr. Buie came out from the basement. He was arrested, searched, handcuffed, and taken from the house. Id. An officer returned to the basement “in case there was someone else” there. Id. The officer found evidence of a robbery that was used to convict Mr. Buie. Id. “[U]ntil the point of Buie’s arrest the police had the right, based on the authority of the arrest warrant, to search anywhere in the house that Buie might have been found, including the basement.” Id. at 330. If the officer’s entry into the basement was lawful, the seizure of the evidence—which he had probable cause to believe was evidence of a crime and which was in plain view—was also lawful. Id. The issue was whether the Fourth Amendment allowed the officer to enter the basement after Mr. Buie’s arrest. Id.

A protective sweep, aimed at protecting the arresting officer, may be conducted only when the officer “possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 337; see also Runge v. State, 701 So. 2d 1182 (Fla. 2d DCA 1997). Such a sweep must last “no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Buie, 494 U.S. at 335-36; see also Nolin v. State, 946 So. 2d 52, 56 (Fla. 2d DCA 2006). “[T]he purpose of such a search when an arrest takes place is to check for possible accomplices, not evidence, and is justified only if necessary to allow officers to carry out the arrest without fear of violence.” State v. Parker, 399 So. 2d 24, 29 (Fla. 3d DCA 1981). In Buie, the search occurred after “Buie was safely outside the house, handcuffed and unarmed.” Buie v. State, 550 A.2d 79, 86 (Md. 1988). The officer who conducted the post-arrest search “supplied no explanation for why he might have thought another person was in the basement.” Buie, 494 U.S. at 338 (Justice Stevens, concurring).

As in Buie, Corporal Thurman entered the bathroom after Mr. Mobley was arrested and safely in a patrol car. Recall, too, that the officers had already escorted Mr. Mobley’s girlfriend outside. Our record offers no reason why the officers thought another person was in the bathroom. Mr. Mobley’s arrest was complete and the officers simply could have left.² A motion to suppress certainly had merit in light of Buie, a case decided fourteen years before Mr. Mobley’s arrest. We can discern no reason why counsel failed to file a suppression motion. But for the “protective sweep” of the bathroom, there would have been no evidence that Mr. Mobley possessed a firearm.

On appeal from a summary denial of a postconviction claim of ineffective assistance of counsel by failing to file a motion to suppress, we must reverse unless the record shows conclusively that Mr. Mobley is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A); McDuffy v. State, 837 So. 2d 590, 591 (Fla. 2d DCA 2003) (reversing denial where record contained no facts sufficient to warrant reasonable belief that home harbored dangerous criminals to justify protective sweep). The record before us indicates that Mr. Mobley’s trial counsel performed deficiently, to Mr. Mobley’s prejudice. Therefore, we reverse and remand for an evidentiary hearing or other appropriate relief with respect to this claim.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WHATLEY, JJ., Concur.

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

—————

Notes:

—————

STATE OF FLORIDA, Appellant,
v.
STEVEN MAURICE MCINTYRE, Appellee. Case No. 5D08-2121. District Court of Appeal of Florida, Fifth District. Opinion filed May 29, 2009.Appeal from the Circuit Court for Orange County, Bob Wattles, Judge.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Daytona Beach, for Appellee.

COBB, W., Senior Judge.

The State has appealed the trial court’s order of discharge of the defendant McIntyre (charged with four counts of sexual battery on a child under twelve) based upon the trial court’s finding that his right to a speedy trial had been violated.

The legal issue presented is whether a criminal defendant who waives speedy trial by a last-minute motion for a psychiatric evaluation¹ can subsequently obtain a discharge under the speedy trial rule in the absence of any constitutional claim and without the subsequent filing of any procedural demand for speedy trial. The answer to that question is no. See State v. Naveira, 873 So. 2d 300 (Fla. 2004); Szembruch v. State, 910 So. 2d 372 (Fla. 5th DCA 2005); State v. Gibson, 783 So. 2d 1155 (Fla. 5th DCA 2001).

This case is distinguishable from State v. Agee, 622 So. 2d 473 (Fla. 1993), which is relied upon by the Appellee. In Agee there was no waiver by the defendant of his procedural right to a speedy trial. Given the instant waiver and absence of subsequent demand for a speedy trial, and despite an intervening nolle pros and refilling, we agree with the State that this action was not barred.

REVERSED and REMANDED for trial.

TORPY and LAWSON, JJ., concur.

—————

Notes:

—————

LARRY EUGENE SHORTER, JR., Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-2076. District Court of Appeal of Florida, Second District. Opinion filed May 29, 2009.Appeal from the Circuit Court for Pinellas County, Philip J. Federico, Judge.

James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Larry Eugene Shorter, Jr., appeals his sentence for child abuse entered after the trial court revoked his probation. Because the trial court improperly included victim injury points on the scoresheet for a crime that was not before the court for sentencing, which the State concedes, we reverse and remand for resentencing with a corrected scoresheet.

The trial court revoked Shorter’s probation based upon new law offenses and sentenced him to 53.7 months in prison. The Criminal Punishment Code scoresheet showed 53.7 months as the lowest permissible prison sentence. The scoresheet included forty points for severe victim injury. Those points were assessed, however, for victim injury resulting from the new law offense of leaving the scene of an accident with injury, which was not before the court for sentencing.

Shorter brought this issue to the trial court’s attention in a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Jackson v. State, 983 So. 2d 562, 572 (Fla. 2008) (recognizing inaccurate scoresheets as “sentencing errors” subject to preservation by rule 3.800(b)(2)); State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005) (stating that a rule 3.800(b) motion is a method to correct scoresheet error); Harper v. State, 5 So. 3d 765, 765-66 (Fla. 2d DCA 2009) (stating that scoresheet error was preserved for review by rule 3.800(b)(2) motion). Our record reflects that the trial court did not rule on the motion within sixty days; thus, we deem the motion denied. See Harper, 5 So. 3d at 766 n.1.

Because Shorter was not before the court for sentencing on the leaving the scene of an accident charge, it was improper to consider those victim injury points in sentencing Shorter for child abuse. See § 921.0021(7)(a), Fla. Stat. (2002) (”`Victim injury’ means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.”). Shorter argues that the trial court clearly intended to sentence him to the lowest permissible prison sentence on the scoresheet and that we should reverse and remand for the trial court to resentence him to the lowest permissible prison sentence based on a corrected scoresheet that does not include the forty victim injury points. The State contends that resentencing is required to determine whether the trial court would impose the same sentence of 53.7 months under a corrected scoresheet.

The Florida Supreme Court has determined that the test to be applied on a direct appeal regarding whether scoresheet error requires resentencing is the “would-have-been imposed” test. See Anderson, 905 So. 2d at 118. “If the reviewing court cannot determine conclusively from the record that the trial court would have imposed the same sentence despite the erroneous scoresheet, remand for resentencing is required.” Id. at 116. Based on our record, including the transcript of the sentencing hearing, we cannot say conclusively what the trial court would have done had the forty victim injury points not been included on the scoresheet. See id.; Budd v. State, 939 So. 2d 1158, 1159 (Fla. 2d DCA 2006). Thus, we reverse Shorter’s sentence and remand for resentencing based on a corrected scoresheet that does not include the forty victim injury points.

Sentence reversed and remanded.

DAVIS and WALLACE, JJ., Concur.

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

OPTAVIS O. OLIVER, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 5D08-101. District Court of Appeal of Florida, Fifth District. Opinion filed May 29, 2009.3.850 Appeal from the Circuit Court for Putnam County, Terry LaRue, Judge.

Optavis O. Oliver, East Palatka, pro se.

Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

Optavis Oliver appeals the trial court’s order, which summarily denied four claims set forth in his motion for postconviction relief and denied two others after an evidentiary hearing.¹ Pursuant to Spera v. State, 971 So. 2d 754, 755 (Fla. 2007), we reverse that portion of the order summarily denying claim two wherein Oliver attempted to allege ineffective assistance of his trial counsel for failing to properly challenge the reliability of the drug dog that initially alerted on the drugs that ultimately led to Oliver’s arrest. We do so because we are unable to conclude that the deficiencies in the motion as to that claim cannot be remedied by amendment. See also Neal v. State, 984 So. 2d 1276, 1277 (Fla. 5th DCA 2008) (holding that unless it is apparent that defects in postconviction claims cannot be remedied by amendment, the trial court must allow a defendant to amend his motion to correct deficiencies); Vassar v. State, 983 So. 2d 704 (Fla. 5th DCA 2008); Pierre v. State, 973 So. 2d 547, 548 (Fla. 5th DCA 2008). Accordingly, the pertinent part of the order is reversed and this case is remanded with instructions that the trial court strike claim two with leave to amend “in a specified time consistent with parameters identified in Spera.” Parsons v. State, 981 So. 2d 1249, 1250 (Fla. 5th DCA 2008). As to the remaining portion of the order denying the other five claims, we affirm without further comment.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and EVANDER, JJ., concur.

—————

Notes:

—————

RAYMOND A. BRACERO, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-5763. Case No. 2D07-5764. Case No. 2D07-5765, CONSOLIDATED. District Court of Appeal of Florida, Second District. Opinion filed May 29, 2009.Appeal from the Circuit Court for Lee County, Edward J. Volz, Jr., Judge.

James Marion Moorman, Public Defender, and Lynda B. Barack, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

In these consolidated appeals, Raymond A. Bracero challenges his sentences imposed upon revocation of probation in three circuit court cases regarding three separate charges of trafficking in cocaine. Bracero argues that the trial court erred in sentencing him to a period of incarceration greater than the suspended portion of his original true split sentences. We agree and reverse Bracero’s sentences and remand for resentencing.

Bracero committed the trafficking offenses in 2002, and the trial court originally imposed concurrent sentences of 108 months in prison, suspended, with 108 months of probation. Upon revocation of probation, the trial court imposed concurrent sentences of 126 months in prison.

Bracero then filed a motion to correct sentencing error in the trial court and contended that his sentences were illegal because the trial court imposed a period of incarceration greater than the suspended portion of the original true split sentences. In denying the motion, the trial court stated that the cases Bracero relied upon, such as Poore v. State, 531 So. 2d 161 (Fla. 1988), superseded by statute on other grounds as recognized in Crews v. State, 779 So. 2d 492, 493-94 (Fla. 2d DCA 2000), were inapplicable because they dealt with “Sentencing Guidelines” cases and not cases governed by the “Criminal Punishment Code.” The court observed that Bracero’s offenses were committed in 2002 and were governed by the Criminal Punishment Code. See § 921.002, Fla. Stat. (2002) (stating effective date of October 1, 1998, for the Criminal Punishment Code). The court stated that section 921.002(1)(g) allows “the Court to impose a sentence up to and including the statutory maximum for any offense before the Court due to a violation of probation” and denied Bracero’s motion. The trial court did not address double jeopardy concerns in denying the motion and did not cite any cases to support its conclusion.

On appeal, the State all but concedes that the trial court erred in sentencing Bracero to a period of incarceration that exceeds the suspended portion of the true split sentence. The State draws our attention to Mack v. State, 823 So. 2d 746, 748 n.3 (Fla. 2002), which Bracero had cited to the trial court. In Mack, the supreme court stated as follows:

Poore v. State, 531 So. 2d 161, 164 (Fla. 1988), we explained that when a sentencing court imposes a true split sentence, the judge has effectively sentenced the defendant in advance for a probation violation and is not later permitted to change his or her mind. Upon revocation of probation, the court may not order the defendant incarcerated for a period exceeding the suspended portion because to do so would be a violation of the double jeopardy clause.

Id. The State cites to no cases that suggest that this double jeopardy issue does not apply to cases under the Criminal Punishment Code.

In a case in which the defendant was originally sentenced in July 2000, this court reiterated its statement in Crews that “[i]f a trial court intends to impose the maximum period of imprisonment for a violation of the probationary portion of a true split sentence, it should impose the full original sentence of incarceration with credit for time served.” Pressly v. Tadlock, 968 So. 2d 1057, 1058 (Fla. 2d DCA 2007) (quoting Crews, 779 So. 2d at 493). Cases from other districts also reflect that the double jeopardy concerns explained in Poore remain an issue in sentencing.

Ferrell v. Lamberti, 987 So. 2d 771 (Fla. 4th DCA 2008), the defendant entered his plea and was originally sentenced in 2004. The Fourth District stated, “When a defendant violates probation after being sentenced to a true split sentence, the judge may not order new incarceration exceeding the remaining balance of the withheld or suspended portion of the original sentence.” Id. at 772.

Boone v. State, 967 So. 2d 999 (Fla. 5th DCA 2007), the defendant entered into a plea bargain and was originally sentenced in 2000. The Fifth District stated, “Because Boone was initially given a `true split sentence,’ he could not be sentenced upon revocation of his probation to a period that exceeded the original ten-year sentence, with credit for time served.” Id. at 1000-01.

Here, the trial court erred in sentencing Bracero upon revocation of probation to sentences of 126 months when the original split sentences imposed only 108 months. Therefore, we reverse his sentences and remand for resentencing that does not exceed “the full original sentence of incarceration with credit for time served.” Pressly, 968 So. 2d at 1058 (quoting Crews, 779 So. 2d at 493). Sentences reversed and remanded.

DAVIS and WALLACE, JJ., Concur.

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

J.S., Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-4657. District Court of Appeal of Florida, Second District. Opinion filed May 29, 2009.Appeal from the Circuit Court for Pasco County, Walter L. Schafer, Jr., Judge.

James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.

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

WALLACE, Judge.

In an Anders¹ appeal, J.S., a juvenile, seeks review of the trial court’s order withholding adjudication and placing him on probation. He also seeks review of the trial court’s imposition of certain costs. We affirm the disposition without comment but remand with directions to strike two imposed costs.

The trial court withheld adjudication, placed J.S. on probation, and assessed court costs of $50 and $20 under section 775.083(2), Florida Statutes (2006). These costs may only be assessed when the juvenile is adjudicated delinquent. See C.M.S. v. State, 997 So. 2d 520, 521 (Fla. 2d DCA 2008); T.L.S. v. State, 949 So. 2d 290, 291-92 (Fla. 5th DCA 2007). Here, adjudication was withheld. Also, J.S. was charged with a single felony count. Even if J.S. had been adjudicated delinquent, the $20 cost could not be imposed because it is applicable only to offenses other than felonies. See § 775.083(2). Accordingly, we affirm the disposition, but we remand the case to the trial court with instructions to strike the imposed costs of $50 and $20.

Affirmed; remanded with instructions to strike costs.

DAVIS and SILBERMAN, JJ., Concur.

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

—————

Notes:

—————

LIDESMOND TERRELL BAKER, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 5D07-2578. District Court of Appeal of Florida, Fifth District. Opinion filed May 29, 2009.Appeal from the Circuit Court for Volusia County, James R. Clayton, Judge.

Paula C. Coffman, Orlando, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Lidesmond Terrell Baker appeals from the denial of his motion to withdraw plea, filed after he was sentenced as a habitual felony offender (HFO) to fifteen years in prison on a charge of sale and delivery of cocaine. Because the State did not file its notice of intent to seek HFO sentencing until after Baker entered his plea, the trial judge did not explain the consequences of a potential HFO sentence to Baker until after the plea was entered. Under these circumstances, we agree with Baker that he is entitled to post-sentencing relief.

Ashley v. State, 614 So. 2d 486 (Fla. 1993), the Florida Supreme Court held that “in order for a defendant to be habitualized following a guilty or nolo contendre plea, the following must take place prior to acceptance of the plea: 1) the defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences.” Id. at 490 (emphasis added). In this case, the prosecutor stated a desire or intent to seek the HFO sentencing enhancement before Baker entered his plea, but the State did not file its notice of intent to seek HFO sentencing, or serve the notice on Baker, until the day after Baker’s plea. Because no notice had been filed, the trial judge only informed Baker that he faced a maximum penalty of fifteen years in prison during the plea colloquy, and did not inform Baker of any of the sentencing consequences of an HFO designation.¹

This case is somewhat unique in that the trial judge ultimately imposed a fifteen-year sentence that could have been imposed without the HFO enhancement, and unequivocally explained that Baker’s HFO status had no effect on his decision as to the length of the pronounced sentence. In other words, the trial judge determined that fifteen years was the appropriate sentence irrespective of whether the State sought HFO sanctions, and clearly said this on the record. Given this fact, we can understand why the trial judge concluded that Baker had not demonstrated a manifest injustice warranting withdrawal of his plea. See, e.g., Powell v. State, 929 So. 2d 54, 55 (Fla. 5th DCA 2006) (repeating rule that a defendant seeking to have his or her plea set aside after sentencing must establish that withdrawal of the plea is “necessary to correct a manifest injustice”). However, failure to grant any post-sentencing relief ignores the dictates of Ashley, which prohibits HFO enhancement in a plea case where the State did not seek HFO sentencing prior to entry of the plea, or where the defendant was not informed that habitualization could affect eligibility for early release prior to entry of the plea. Because the Ashley requirement was not met, Baker is entitled to relief. Id. Accordingly, we reverse the order denying Baker’s motion to withdraw plea and remand for additional proceedings.

On remand, the trial court may simply strike the HFO designation, if there is no objection from the State. Williams v. State, 2 So. 3d 1089 (Fla. 5th DCA 2009). This will place Baker in the same position he would have been in if the State had not sought the HFO enhancement. Id.; see also, Wilson, 658 So. 2d at 523. If the State does not agree to removal of the HFO classification, Baker must be allowed to withdraw his plea. Id.

REVERSED AND REMANDED WITH INSTRUCTIONS.

TORPY, J., and COBB, W., Senior Judge, concur.

—————

Notes:

—————

BRYAN KEITH HOGAN, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D06-3196. District Court of Appeal of Florida, Second District. Opinion filed May 29, 2009.Appeal from the Circuit Court for Pasco County, Joseph A. Bulone, Judge.

Bryan Keith Hogan, pro se.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Bryan Keith Hogan appeals an order granting the State’s Motion to Clarify Previous Court Ruling Dated December 31, 2002. The clarification order rendered on March 30, 2006, corrects factual assertions in two prior orders, entered in 2000 and 2002, that disposed of Hogan’s motions to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The issue relevant to this appeal regarding the rule 3.800(a) motions was the retention of jurisdiction on a 1979 sentence for involuntary sexual battery. Because there was no legal authority for the State to file in 2006 its motion to clarify, and no jurisdictional basis for the postconviction court to consider the motion to clarify, we vacate the order rendered on March 30, 2006, along with the order rendered on April 21, 2006, that denies Hogan’s motion for rehearing and the order rendered on May 10, 2006, that denies Hogan’s motion to clarify.¹

In 1979, Hogan was convicted and sentenced for attempted second-degree murder and involuntary sexual battery. Judge Bergstrom imposed consecutive sentences of fifteen years and ninety-nine years, respectively, and retained jurisdiction over the defendant on one-third of the sentences, pursuant to section 947.16(3),² Florida Statutes (Supp. 1978). Hogan filed a motion to reduce sentence, and our record indicates that Judge Bergstrom set aside the retention of jurisdiction on only the sentence for attempted second-degree murder.

In 2000, Hogan filed a pro se motion to correct illegal sentence pursuant to rule 3.800(a). The motion asserted that Judge Bergstrom set aside the reservation of jurisdiction on case number 79-00328, the attempted murder case. In the order ruling on the motion, Judge Villanti stated in pertinent part as follows:

Defendant’s second ground is that the Court improperly retained jurisdiction over his sentence. Defendant also acknowledges in his motion that, during a hearing on Defendant’s Motion to Reduce Sentence held one week after sentencing, the Court vacated and set aside the previously ordered reservation of jurisdiction. Therefore, this claim is moot.

Hogan did not appeal this order.

In 2002, Hogan filed a second pro se motion to correct illegal sentence. He asserted that Judge Bergstrom had set aside the reservation of jurisdiction, referenced Judge Villanti’s prior order, and asserted that the Department of Corrections refused to acknowledge that the reservation of jurisdiction had been set aside. In the order denying the motion, Judge Bray stated in pertinent part as follows:

First, Defendant again raises the issue of the retention of jurisdiction which he raised in his previous motion. That claim was previously denied as moot because the Court vacated and set aside the reservation of jurisdiction during a hearing on a motion to modify sentence. Defendant acknowledges that the Court vacated and set aside the retention of jurisdiction, but alleges that the Department of Corrections refuses to acknowledge same. If the Department of Corrections has failed to follow an order of the Court, Defendant must seek relief through administrative channels within the Department of Corrections and, if necessary, by filing a petition for writ of mandamus in the circuit court of the county in which he is incarcerated.

Hogan appealed this order, and this court issued a per curiam affirmance. See Hogan v. State, 958 So. 2d 931 (Fla. 2d DCA 2003) (table decision).

In 2006, the State filed its motion to clarify and asserted that in 1979 Judge Bergstrom set aside the retention of jurisdiction only in the attempted murder case and that the orders entered in 2000 and 2002 were inaccurate in that regard. It appears that the retention issue arose when Hogan had come before the Florida Parole Commission. Judge Bulone entered the March 2006 order now on appeal and stated that “the Court Orders that Judge Villanti’s Order dated October 31, 2000, and Judge Bray’s Order dated December 31, 2002, be corrected to reflect that Judge Bergstrom’s sentence, dated December 3, 1979, retaining one third jurisdiction of defendant’s ninety-nine year sentence, is in effect.” Judge Bulone denied Hogan’s motion for rehearing and his motion for clarification. Hogan now appeals the three orders Judge Bulone entered in 2006.

Hogan contends that the State was procedurally barred from seeking clarification when it did not file a timely motion for clarification or timely exercise its right to appeal either Judge Villanti’s order or Judge Bray’s order. We conclude that Judge Bulone was without jurisdiction to consider the State’s motion to clarify the previous rulings made in 2000 and 2002.

Hogan correctly asserts that the State failed to appeal the 2000 and 2002 orders. Section 924.066(2), Florida Statutes (2000, 2002), provides, “Either the state or a prisoner in custody may obtain review in the next higher state court of a trial court’s adverse ruling granting or denying collateral relief.”

As to the timeliness of the motion to clarify, Hogan refers to Florida Rule of Appellate Procedure 9.330(a) in arguing that motions to clarify must be filed within fifteen days of the decision. Of course, rule 9.330 applies to motions to clarify decisions of the appellate court, not postconviction orders in the circuit court. Rule 3.800 does not provide for a “motion for clarification.” Rule 3.800(b) provides, “A party may file a motion for rehearing of any order entered under subdivisions (a) and (b) of this rule within 15 days of the date of service of the order or within 15 days of the expiration of the time period for filing an order if no order is filed.” However, when the orders were entered in 2000 and 2002, rule 3.800 did not provide for a motion for rehearing. See Amendments to the Fla. Rules of Criminal Procedure, 886 So. 2d 197, 199-200 (Fla. 2004). Thus, even if the State had not filed the motions years late, nothing in rule 3.800 authorized a motion for rehearing or a motion for clarification when the judges entered their orders in 2000 and 2002.

Ruiz v. State, 927 So. 2d 162 (Fla. 3d DCA 2006), the defendant appealed from an order denying his motion for clarification. The motion requested an amendment of his sentencing orders to reflect credit for prison time served before the revocation of his probation. The Third District recognized that in denying the motion the trial court stated “that it was `not aware of a Motion for Clarification in the Rules of Criminal Procedure.’ ” Id. at 163. There, the State conceded that the motion should have been treated as a rule 3.800(a) motion to correct illegal sentence to award credit for time served.

In the present case, the State’s motion to clarify was not authorized by the Florida Rules of Criminal Procedure, and the motion was not seeking the correction of an illegal sentence as in Ruiz. The State was seeking in 2006 to correct a factual assertion regarding the retention of jurisdiction in a prior order denying a rule 3.800(a) motion. There was no jurisdictional basis for the State to file the motion to clarify, and the postconviction court was without jurisdiction to rule on the motion and to enter the March 2006 order, along with the orders denying Hogan’s motions for rehearing and clarification. Thus, we vacate those 2006 orders.

We recognize that Judge Bulone’s March 2006 order accurately states, based on our record, “that Judge Bergstrom’s sentence, dated December 3, 1979, retaining one third jurisdiction of defendant’s ninety-nine year sentence, is in effect.” Our vacating Judge Bulone’s order does not change that the retention of jurisdiction is in effect, because neither the 2000 order nor the 2002 order vacated the retention of jurisdiction. As Judge Bulone recognized in the motion denying rehearing, the 2000 order contained “a statement, albeit erroneous, as to what had taken place over 20 years earlier, but did not substantively affect the retention of jurisdiction.”

We note that in denying Hogan’s motion for rehearing, Judge Bulone stated that Hogan “was specifically advised during the hearing that, because his prior claims that the retention of jurisdiction was illegal were denied procedurally due to an error, he may refile that claim to be considered substantively.” Hogan alleged in his original rule 3.800(a) motion in 2000 that the four reasons used to justify the retention of jurisdiction were invalid. However, the failure to state reasons for the retention of jurisdiction does not constitute an illegal sentence and is not a cognizable claim under rule 3.800(a). See Wright v. State, 911 So. 2d 81, 82 (Fla. 2005). The supreme court explained that a defendant “is entitled to challenge on appeal the sentencing court’s technical error of not fully complying with the conditions of the retention statute by failing to provide written reasons for retaining jurisdiction.” Id. at 84. In Wright, the Florida Supreme Court approved this court’s decision and explained that this court “reasoned that `a challenge to the sufficiency of the reasons for a trial court’s retention of jurisdiction over a sentence is analogous to a challenge to a trial court’s failure to provide departure reasons for a sentence.’” 911 So. 2d at 82 (quoting Wright v. State, 864 So. 2d 1153, 1155 (Fla. 2d DCA 2003) (en banc)); see also Blount v. State, 627 So. 2d 576 (Fla. 2d DCA 1993) (determining that the validity of reasons for departure could not be raised in a motion to correct sentence); Delgado v. State, 973 So. 2d 644, 645 (Fla. 3d DCA 2008) (holding that the validity of departure reasons “cannot be attacked by a 3.800(a) motion”). Thus, it appears that Hogan does not have a cognizable rule 3.800(a) claim regarding the sufficiency of the reasons for the retention of jurisdiction.

In summary, we vacate the clarification order rendered on March 30, 2006, along with the order rendered on April 21, 2006, that denies Hogan’s motion for rehearing and the order rendered on May 10, 2006, that denies Hogan’s motion to clarify.

Orders vacated.

CASANUEVA and LaROSE, JJ., Concur.

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

—————

Notes:

—————

IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.130.

No. SC08-1934. Supreme Court of Florida. May 28, 2009.Original Proceeding — Florida Rules of Criminal Procedure.

Thomas Howell Bateman, III, Chair, Florida Criminal Procedure Rules Committee, Messer, Caparello and Self, P.A, Tallahassee, Florida, John F. Harkness, Jr., Executive Director, and Jodi Jennings, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner.

Donnie Murrell of L. D. Murrell, P.A., West Palm Beach, Florida, Robert Dewitt Trammell, General Counsel for Florida Public Defender Association, Inc., Tallahassee, Florida, Judge O. H. Eaton, Jr., Eighteenth Judicial Circuit, Sanford, Florida, Responding with Comments

PER CURIAM.

The Criminal Procedure Rules Committee (Committee) filed an out-of-cycle report proposing an amendment to Florida Rule of Criminal Procedure 3.130, First Appearance. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee’s proposal to amend rule 3.130 arose from a request by a Florida Bar member that the Committee consider proposing an amendment to the rule that would require both the state attorney and the public defender, or their designated assistants, to attend all first appearance hearings. The matter was extensively discussed at the Committee’s January and June 2008 meetings, at which meetings the Committee heard from several public defenders and a state attorney. The Committee learned that not every county required a state attorney and public defender to attend first appearance hearings, apparently due to practical and financial obstacles. After considering the issue, the Committee unanimously voted to propose the amendment because of the critical nature of the first appearance in criminal proceedings. The proposed amendment was unanimously endorsed by the Board of Governors of The Florida Bar.

The Committee filed its report with this Court on September 29, 2008,¹ and the proposed amendment to rule 3.130 was published by the Court in the November 15, 2008, edition of The Florida Bar News.

Three formal comments were filed with this Court in support of the proposal and none in opposition. First, attorney Donnie Murrell, who initially brought this problem to the attention of the Committee, urges adoption of the amendment to ensure that the rule make explicit what has always been implicit: that is, that a prosecutor and public defender attend first appearance hearings. Second, the Florida Public Defender Association (FPDA) not only strongly supports the proposed amendment but requested that additional language be added to ensure that first appearances be held during normal business hours (including weekends and holidays) with adequate notice to the state attorney and the public defender. The FPDA points out instances where times set for first appearances vary within counties without adequate notice. Third, Circuit Judge O.H. Eaton, Jr., who also filed a comment in favor of the rule, urged that the Court require that first appearance hearings be held during normal business hours and that the first appearances be recorded. Judge Eaton also urged that the Court consider a manual setting forth the responsibilities of the judge at first appearance.²

The Committee responded to the comments of the FPDA and Judge Eaton, suggesting that the issue of the times for first appearances, which may be a problem in individual counties or with individual judges, be addressed with the scheduling judge or if necessary with the chief judge.

After considering the Committee’s proposal and reviewing the comments filed, we adopt the proposed amendment with modifications. The proposal to amend rule 3.130 recognizes the important role that counsel play in criminal proceedings. In addition to requiring the presence of both the public defender and state attorney, or their designated assistants, rule 3.130(a) is also amended to require that adequate notice be provided to each. “Adequate notice” may be met by the entry of a standing administrative order setting forth the times for first appearances. In addition, because rule 3.130(c) contemplates that a criminal defendant may have retained counsel prior to the first appearance or may have the ability and intention to retain counsel for the first appearance, the amendment to rule 3.130(a) provides that, under such circumstances, the public defender or his or her designee need not be present and the trial court shall follow the procedure under rule 3.130(c)(2). Finally, the rule as amended requires that an official record of the proceedings be maintained in accordance with the suggestions of both the FPDA and Judge Eaton.

Although we agree with the FPDA that first appearances should be held during normal business hours absent exigent circumstances, and certainly not solely at the convenience of the judge hearing first appearances, we decline at this time to engraft this requirement into this rule. Rather, by separate letter we are alerting all chief judges to this expressed concern and ask that each chief judge explore whether a problem regarding scheduling of first appearances exists, and if so, to resolve the problem in a way that safeguards the critical role of first appearances to the criminal process. If necessary, we will consider in the future an amendment to the applicable rules, which might include an amendment to the rules of judicial administration.

Accordingly, we adopt rule 3.130 as reflected in the appendix to this opinion. New language is indicated by underscoring. The amendment shall become effective immediately upon release of this opinion.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

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

APPENDIXRULE 3.130 FIRST APPEARANCE

(a) Prompt First Appearance. Except when previously released in a lawful manner, every arrested person shall be taken before a judicial officer, either in person or by electronic audiovisual device in the discretion of the court, within 24 hours of arrest. In the case of a child in the custody of juvenile authorities, against whom an information or indictment has been filed, the child shall be taken for a first appearance hearing within 24 hours of the filing of the information or indictment. The chief judge of the circuit for each county within the circuit shall designate 1 or more judicial officers from the circuit court, or county court, to be available for the first appearance and proceedings. The state attorney or an assistant state attorney and public defender or an assistant public defender shall attend the first appearance proceeding either in person or by other electronic means. First appearance hearings shall be held with adequate notice to the public defender and state attorney. An official record of the proceedings shall be maintained. If the defendant has retained counsel or expresses a desire to and is financially able, the attendance of the public defender or assistant public defender is not required at the first appearance, and the judge shall follow the procedure outlined in subdivision (c)(2).

(b)-(d) [No Change].

Committee Notes [No Change]—————

Notes:

—————