Florida Criminal Law Opinions

VINTON ALRICK GRAHAM, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D05-4893. District Court of Appeal of Florida, Fourth District. May 27, 2009.Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Krista Marx, Judge, L.T. Case No. 05002140 CFA02.

Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

On Remand from the Florida Supreme CourtWARNER, J.

After the supreme court granted review based upon our reliance on Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006), disapproved in part, 993 So. 2d 952 (Fla. 2008), it granted the petition, quashing our decision and remanding for reconsideration upon application of Yisrael. That decision involved whether documents submitted by the Department of Corrections to establish a prisoner’s release date from prison were admissible as exceptions to the hearsay rule. In quashing the opinion of this court, the supreme court noted that it did not have the full appellate record and could not determine for itself whether the documents submitted during Graham’s sentencing complied with Yisrael.

We have examined the record. The affidavit of the DOC official and attached report, which the state introduced as evidence of Graham’s prison release date, comply with Yisrael. We therefore affirm.¹

HAZOURI and LEVINE, JJ., concur.

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Notes:

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STATE OF FLORIDA Petitioner,
v.
LUIS ALFREDO LUCIANO, Respondent. No. SC08-1398. Supreme Court of Florida. May 21, 2009.Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict of Decisions, Fifth District — Case No. 5D07-601, Orange County.

Bill McCollum, Attorney General, Tallahassee, Florida, and Wesley Heidt, Assistant Attorney General, Daytona Beach, Florida, for Petitioner.

James S. Purdy, Public Defender, and Dee Ball and Marvin F. Clegg, Assistant Public Defenders, Seventh Judicial Circuit, Daytona Beach, Florida, for Respondent.

PER CURIAM.

We have for review Luciano v. State, 983 So. 2d 759 (Fla. 5th DCA 2008), in which the Fifth District Court of Appeal certified conflict with the decision of the Third District Court of Appeal Valdes v. State, 970 So. 2d 414 (Fla. 3d DCA 2007), approved in result, 3 So. 3d 1067 (Fla. 2009). At the time the Fifth District issued its decision in Luciano, the Third District’s Valdes decision was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So. 2d 418 (Fla. 1981).

We stayed proceedings in the present case pending disposition of Valdes v. State, 3 So. 3d 1067 (Fla. 2009), in which we ultimately approved the result of the Third District’s underlying Valdes decision. Once our decision in Valdes was final, we issued an order in the present case directing Respondent to show cause why we should not exercise jurisdiction, summarily quash the decision being reviewed, and remand for reconsideration in light of our decision in Valdes. Respondent in his response acknowledges the controlling authority of this Court’s Valdes decision.

We accordingly exercise jurisdiction and grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the Fifth District for reconsideration upon application of this Court’s Valdes decision.

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.

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SAM JEROME WILSON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-888. District Court of Appeal of Florida, Second District. Opinion filed May 20, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County, Philip J. Federico, Judge.

SILBERMAN, Judge.

Sam Jerome Wilson appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Because Wilson’s motion was facially insufficient and because he may be able to correct the deficiency, we reverse the order denying his motion and remand for entry of an order striking the motion, thereby affording him an opportunity to amend it if he is able to do so.

Wilson entered a no contest plea to charges of sale and possession of cocaine. In his sworn motion for postconviction relief, he alleged that his trial counsel was ineffective for failing to file a motion to compel disclosure of the identity of the confidential informant (CI). Wilson claimed that he did not sell cocaine to anyone, that he was not present during the drug transaction, and that the CI would have assisted in establishing a misidentification defense. He stated that he entered his no contest plea after counsel told him that there were no legal grounds to file the motion and that if he lost at trial rather than accepting the State’s plea offer of 34.5 months in prison, he would be sentenced to 30 years’ imprisonment.

The postconviction court concluded that Wilson’s claim was too speculative because Wilson did not purport to know the identity of the CI or the substance of the CI’s testimony. The court observed that Wilson was speculating that the CI possessed favorable testimony that would have prompted Wilson to proceed to trial with a misidentification defense rather than entering his plea.

Florida Rule of Criminal Procedure 3.220(g)(2) provides that “[d]islosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.” In Miller v.State, 729 So. 2d 417, 419 (Fla. 4th DCA 1999) (citations omitted), the Fourth District stated as follows:

Disclosure of a confidential informant is required if an informant’s identity or content of his communication is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause. The first component necessarily centers around a specific defense asserted by the defendant in the case, as to which the informant’s testimony is material and helpful. The second component concentrates on general due process considerations and is not confined to a defense raised by the defendant.

If the defendant meets his “initial burden of showing that disclosure is necessary to a specific defense, the trial court should hold an in camera hearing to determine, in fact, whether the disclosure would be relevant and helpful to the defense.” State v. Roberts, 686 So. 2d 722, 723 (Fla. 2d DCA 1997). Sworn allegations supporting a misidentification defense for which the CI’s testimony would be helpful are sufficient to make the initial showing requiring production of the CI for an in camera hearing. Miller, 729 So. 2d at 420; Roberts, 686 So. 2d at 722-23; see also McCray v. State, 730 So. 2d 817, 817 (Fla. 2d DCA 1999) (involving a sworn motion that alleged the CI knew the defendant, the CI was present when the crime occurred, the undercover officer misidentified the defendant as the perpetrator of the crime, the CI’s testimony was essential to a misidentification defense, and the defendant was not involved in the crime).

In his sworn motion for postconviction relief, Wilson alleged a colorable misidentification defense, stating that he did not sell cocaine to anyone and that he was not present during the underlying transaction. See Miller, 729 So. 2d at 418-20. Further, he alleged that the CI’s testimony would be helpful to establish that he was not present during the drug transaction. However, Wilson did not allege, and our record does not reveal, whether the CI was present at the time of the drug transaction, what role the CI played in the transaction, or how the CI’s testimony would help establish that Wilson was not involved in or present at the transaction.

Our limited record does not establish that Wilson would be unable to allege a facially sufficient claim for postconviction relief. Wilson may be able to allege the CI’s involvement in the drug transaction and how that involvement would assist Wilson in establishing a misidentification defense. If Wilson makes such allegations, the postconviction court could then determine whether trial counsel’s failure to move for disclosure of the CI’s identity was deficient performance and whether Wilson was prejudiced by any such deficient performance.

Because the motion was facially insufficient and because Wilson may be able to amend the motion to state a facially sufficient claim, the postconviction court should have stricken the motion, thereby allowing Wilson an opportunity to amend it. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007). We note that the two-year time period in which Wilson may file a proper motion for postconviction relief has not yet expired. See Fla. R. Crim. P. 3.850(b). Thus, if Wilson timely files an amended motion correcting the deficiencies, it shall not be treated as successive under rule 3.850(f) unless the postconviction court finds that Wilson’s conduct constitutes an abuse of procedure as described in that rule.¹ Accordingly, we reverse the order denying Wilson’s motion and remand for entry of an order striking the motion.

Reversed and remanded.

FULMER and WHATLEY, JJ., Concur.

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

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Notes:

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ANDREW ROLLS, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-728. District Court of Appeal of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, William J. Berger, Judge, L.T. Case No. 06-748 CFB02.

Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Appellant was convicted of first degree premeditated murder in the beating death of Jim Wellman. He contends that the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to support premeditation. We disagree. Although the evidence showed that appellant may have initially acted in self-defense, the evidence also showed that appellant, along with his co-defendant, forcefully and repeatedly delivered blows to the victim’s head and face with a wooden table over a period of ninety minutes to two hours, while the victim was lying defenseless on the floor. The victim suffered skull fractures and extensive lacerations on his head and face. He was found dead in his bedroom with two pieces of cord tying his ankles together.

Viewing the facts in a light most favorable to the state supports finding premeditation and refutes appellant’s hypothesis of innocence that he was merely defending himself and had no preconceived plan to kill Wellman. Miller v. State, 770 So. 2d 1144, 1148-49 (Fla. 2000) (holding that evidence was sufficient in first-degree murder trial to find premeditation based on the nature of the weapon used, repetition and force of blows that fractured victim’s skull, absence of provocation, and sufficiency of time for reflection as to the nature and probable result of his act).

Affirmed.

HAZOURI and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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JOEL GONZALEZ, an incompetent person, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 2D08-5322. District Court of Appeal of Florida, Second District. Opinion filed May 20, 2009.Petition for Writ of Certiorari to the Circuit Court for Polk County, Mark F. Carpanini, Judge.

James Marion Moorman, Public Defender, and Robert A. Young, General Counsel, Bartow, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Chief Judge.

Joel Gonzalez seeks review of an order declining to dismiss a pending criminal charge even though it is undisputed that Gonzalez is incompetent to stand trial due to his mental retardation and there is no reasonable likelihood he can be restored to competency. We grant Gonzalez’s petition for a writ of certiorari and quash the order.

In fall 2006, Gonzalez was arrested and charged with the felony offense of lewd molestation. On June 19, 2007, Gonzalez was adjudicated incompetent to stand trial due to his mental retardation, and he was involuntarily committed pursuant to section 916.302, Florida Statutes (2007). In February 2008, on defense counsel’s motion, the circuit court vacated the commitment order and placed Gonzalez on conditional release pursuant to section 916.304. In the conditional release order, the court found that there was no reasonable expectation that Gonzalez would be restored to competency. But the order also included an inconsistent “conclusion of law” that Gonzalez was “in need of outpatient treatment to restore competency to proceed.” In September 2008, defense counsel filed a motion to dismiss the criminal charge under section 916.303(1). After a hearing, the court denied the motion to dismiss. Gonzalez seeks review of this order, arguing that immediate dismissal is required under the statute.

Gonzalez’s petition in this court seeks either habeas corpus or certiorari relief. The supreme court has held that an order denying a motion to dismiss criminal charges against an incompetent defendant may be reviewed by common law certiorari. See Vasquez v. State, 496 So. 2d 818 (Fla. 1986) (providing that criminal defendant, adjudicated incompetent to stand trial, could seek certiorari review of order denying motion to dismiss filed under Fla. R. Crim. P. 3.213); see also Hines v. State, 931 So. 2d 148 (Fla. 1st DCA 2006) (granting certiorari review of order denying incompetent defendant’s motion to dismiss filed under § 916.303, Fla. Stat.).

To obtain common law certiorari relief, a petitioner must show that there has been a departure from the essential requirements of law that causes material and irreparable harm. Reynolds v. State, 963 So. 2d 908, 909 (Fla. 2d DCA 2007). The elements of material harm and the absence of a remedy on appeal are jurisdictional requirements for certiorari relief. Id. at 910. We conclude that Gonzalez has carried his burden as to these elements. See Vasquez, 496 So. 2d at 820 (concluding that incompetent criminal defendant was entitled to common law certiorari review due to absence of appellate review and necessity to preserve constitutional due process rights).

Having determined that Gonzalez has met the jurisdictional requirements for certiorari review, we must address whether he has demonstrated his entitlement to relief. A departure from the essential requirements of law, alternatively referred to as a violation of clearly established law, can be shown by a misapplication of the plain language in a statute. See Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003); Justice Admin. Comm’n v. Peterson, 989 So. 2d 663 (Fla. 2d DCA 2008). Thus we turn to the requirements of chapter 916, Florida Statutes, and to Gonzalez’s claim that the circuit court’s failure to dismiss the charge is a violation of the plain language of section 916.303(1).

Chapter 916 applies to criminal defendants who are either mentally ill or mentally deficient. Part I contains general provisions, part II governs forensic services for persons who are mentally ill, and part III governs forensic services for persons who are mentally retarded or autistic. Gonzalez falls under the provisions in part III.

The legislature has provided a substantive right to dismissal of criminal charges for “any defendant found to be incompetent to proceed due to retardation or autism . . . if the defendant remains incompetent to proceed within a reasonable time after such determination, not to exceed 2 years.” § 916.303(1); see also Hines, 931 So. 2d 148. The only exception to dismissal under this statute requires the court to specify “its reasons for believing that the defendant will become competent to proceed” within a specified time in the foreseeable future. § 916.303(1). In this case, the experts and the parties agree that there is no reasonable probability Gonzalez will ever become competent to proceed.

Nevertheless, based on an opinion by one of the experts, the State contends that Gonzalez would benefit from counseling and training on sexual abuse issues. The circuit court agreed to maintain Gonzalez on conditional release and ordered him to complete this training. On appeal as it did below, the State argues that Gonzalez’s right to dismissal does not arise until the two-year period referenced in section 916.303(1) has expired. In accepting this argument, the circuit court misapplied the plain language of that statute.

The statute establishes a period of two years as the outer limit for jurisdiction over a mentally retarded defendant, but the preceding language cannot be ignored—a defendant is entitled to a dismissal of a criminal charge “within a reasonable time . . ., not to exceed two years.” § 916.303(1) (emphasis supplied). “In addition to the statute’s plain language, a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” State v. Goode, 830 So. 2d 817, 824 (Fla. 2002).

To determine whether “a reasonable time” has passed, when it has been less than two years, the criminal court must consider the single purpose warranting a pretrial exercise of jurisdiction over an incompetent defendant, to wit: restoring competency for trial. See Vasquez, 496 So. 2d at 820 (stating that pretrial confinement and treatment of incompetent criminal defendant is directed solely to restoration of competency); cf. Jackson v. Indiana, 406 U.S. 715, 733 (1972) (describing “rule of reasonableness” applied by federal courts to pretrial commitment of incompetent defendants, which allows commitment “only for a `reasonable period of time’ necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future”). Thus, a reasonable time has passed, and the defendant’s substantive right to dismissal of the criminal charge arises, when it becomes evident that the defendant cannot be restored to competency.

By comparison, section 916.145, applicable to mentally ill defendants, provides a similar right to dismissal of criminal charges after a specific period, i.e., “if the defendant remains incompetent to proceed 5 years after such determination” unless the court can cite a reason to believe the defendant will regain competency. See Mosher v. State, 876 So. 2d 1230 (Fla. 1st DCA 2004) (holding that, because the five-year period had not passed, circuit court did not err in refusing to dismiss criminal charges against mentally ill defendant). One court has explained the differences between the statutory treatment of mentally ill versus mentally retarded individuals by noting that “mental retardation and autism are typically lifelong conditions, whereas mental illness may be a condition more amenable to treatment.” State v. Smith, 982 So. 2d 756, 758 (Fla. 4th DCA 2008) (citing similar distinction noted in supreme court’s amendment of criminal rules to be consistent with these statutes).

Numerous cases hold that an incompetent criminal defendant must be released from commitment when the undisputed evidence shows that the defendant’s competency cannot be restored. “It is a defendant’s `restorability’ that allows commitment for competency training. The inability to restore the defendant requires dismissal of the charges against him or civil commitment.” Roddenberry v. State, 898 So. 2d 1070, 1073 (Fla. 5th DCA 2005) (reversing mentally retarded defendant’s pretrial commitment under § 916.302(1) when court failed to make critical finding that competency could be restored); Mosher, 876 So. 2d 1230 (requiring State to institute civil commitment proceedings or release mentally ill defendant when evidence showed no substantial probability that mentally ill defendant will regain competency).

In this context, we see no appreciable distinction between commitment and conditional release, because the underlying purpose is the same. The statute governing dismissal of criminal charges is not limited to defendants who are committed under section 916.302, and it does not exclude defendants who are “only” on conditional release under section 916.304. See § 916.303.

When, as here, it is determined that the defendant can never be restored to competency, the criminal process must end and the State must pursue other options if necessary to secure the safety of the defendant or others. See, e.g., § 916.303(2) (providing for post-dismissal determinations of whether involuntary services are necessary); § 393.11, Fla. Stat. (2008) (providing for mentally retarded person’s involuntary admission to residential services); see also Hines, 931 So. 2d at 151 (“When charges are dismissed against a mentally retarded defendant . . ., the State or the defendant’s attorney may seek to involuntarily commit the defendant under certain conditions.”).

Quashed and remanded.

KELLY and CRENSHAW, JJ., Concur.

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

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STEPHEN HERRINGTON, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-4825. District Court of Appeal of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Richard I. Wennet, Judge, L.T. Case No. 1991CF007662AXX.

Stephen Herrington, Belle Glade, for pro se.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

The defendant, Stephen Herrington, appeals an order denying his Rule 3.800(a) motion to correct sentence. This case involved a plea bargain as to multiple counts. Herrington was sentenced in accordance with a second written judgment entered at the time of sentencing, rather than in accordance with a prior judgment which found him guilty of a lesser included offense. His sentence would be illegal if the first judgment were controlling. However, we find that a factual dispute exists which cannot be resolved by a Rule 3.800 motion. Thus, we affirm.

In this case the defendant was charged by Information with Counts I, III and V, Burglary (Dwelling), Counts II and VI, Petit Theft and Count IV, Grand Theft. A plea conference was held on December 23, 1991, as to this and nine other cases. There is a transcript of this plea conference contained in the summary record as an attachment to both Exhibit J and Exhibit L to the state’s response. At the beginning of the plea conference the trial judge indicates that, as he understands it, “you intend to plead guilty as charged in each and every one of these matters.” Nobody disputed this characterization on the record. However, the court also references a plea sheet signed by the defendant. The signed plea sheet indicates that the defendant was pleading guilty only to the “lesser” charge of Burglary Conveyance as to count III. A “Judgment” dated December 27, 1991 reflects that the defendant was convicted as to count III of “burglary (conveyance),” a third degree felony.

On April 17, 1992, the defendant was adjudicated a habitual felony offender and sentenced to 30 years imprisonment as to Count I. For unexplained reasons a new “Judgment” was also entered on April 17, 1992, listing all the same convictions, except this time finding the defendant guilty of “Burglary Dwelling” as to Count III, a second degree felony. We have no transcript of this sentencing hearing.

The “Judgment, Sentence and Order Placing Defendant on Community Control II During Portion of Sentence” dated June 29, 1992 describes the offenses in Counts I, III and V, as Burglary (Dwelling). As to Count III, the defendant was sentenced to Community Control II for a period of one year, followed by 29 years probation. This sentence was consecutive to the 30 years of imprisonment for Count I.

On February 9, 2007, the defendant filed the current motion to correct sentence, arguing that the sentence as to count III exceeded the ten-year statutory maximum for burglary (conveyance). The state responded, arguing that the written records were conflicting and that no transcripts still exist, so that relief should be denied. The trial court denied the motion.

Before the trial court, the state relied on Nelson v. State, 984 So. 2d 587, 590 (Fla. 2d DCA 2008). That case involved a 3.800 motion which alleged that the face of a sentence was inconsistent with the trial court’s oral pronouncement, but the transcript of the sentencing proceeding could not be obtained. The second district stated:

As a general rule, sentencing issues that are addressed under rule 3.800(a) after the expiration of the period to consider issues under rule 3.850 must involve matters that render the sentence “illegal.” These issues are generally restricted to matters that can be established from the record without the need for any significant evidentiary proceedings. The proceedings contemplated by Rule 3.800(a) are not intended to resolve disputed factual conflicts between witnesses or within documents.

Id. The current defendant is relying on the written judgment entered closest in time to his guilty plea and the plea sheet discussed at that hearing. However, we have no transcript of the sentencing hearing at which the second judgment was entered, and even as to the change of plea hearing there was a factual conflict between the indication in the record that the defendant was pleading to the various counts as charged and the reference to the plea sheet, which showed only the lesser offense. Thus, the state is right that a factual dispute exists which cannot be resolved in a 3.800 motion.

The defendant argues that the second judgment violated his double jeopardy rights, but we find no authority that jeopardy attaches in a plea situation prior to sentencing.

Affirmed.

GROSS, C.J., FARMER and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Wilfredo A. Zelaya, Appellant,
v.
The State of Florida, Appellee. No. 3D08-3264. District Court of Appeal of Florida, Third District. Opinion filed May 20, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Antonio Marin, Judge. Lower Tribunal No. 95-29230.

Wilfredo A. Zelaya, in proper person.

Bill McCollum, Attorney General, for appellee.

Before COPE, SHEPHERD, and SUAREZ, JJ.

SUAREZ, J.

Wilfredo A. Zelaya appeals from a summary denial of a postconviction motion under Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing.

The defendant has filed the affidavit of the victim’s mother, which he claims is newly discovered evidence. The affidavit states that the victim, who was under twelve years of age at the time of the charged crime, has told her that the crimes did not actually take place. The trial court summarily denied defendant’s motion of newly discovered evidence. Under this court’s standard of review, we are obligated to reverse “unless the record shows conclusively that the appellant is entitled to no relief. . . .” Fla. R. App. P. 9.141(b)(2)(D). On the face of this pleading and accompanying affidavit, we cannot determine whether the recantation is true, or whether the evidence can be deemed newly discovered and was timely raised under the rules. Therefore, because the record does not at this time conclusively refute the defendant’s claim, we reverse the order now before us and remand for an evidentiary hearing for the trial court to determine whether or not this evidence qualifies as newly discovered, and for such other proceedings as may be appropriate. See Roberts v. State, 678 So. 2d 1232 (Fla. 1996); Jones v. State, 591 So. 2d 911, 916 (Fla. 1991); Brantley v. State, 912 So. 2d 342 (Fla. 3d DCA 2005).

Reversed and remanded for further proceedings.

Not final until disposition of timely filed motion for rehearing.

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RICHARD CHAPMAN, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-2978. District Court of Appeal of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Lawrence Mirman, Judge; L.T. Case No. 07-803 CFA.

Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.

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

PER CURIAM.

Based upon the state’s concession of error, we reverse appellant’s conviction and sentence and remand for a new trial. The trial court conducted a Faretta¹ inquiry and determined that appellant was competent to represent himself. However, at each subsequent critical stage of the proceedings the court failed to renew an offer to appellant to obtain assistance of counsel. Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992); Sproule v. State, 719 So. 2d 349 (Fla. 4th DCA 1998); Fla. R. Crim P. 3.111(d)(5).

Reversed and remanded for a new trial.

WARNER, HAZOURI and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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DAVID SCOTT EVANS, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-258. District Court of Appeal of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard I. Wennet, Judge; L.T. Case No. 07CF001417AMB.

Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

David Scott Evans timely appeals his judgment and sentence for felony resisting with violence and battery on a law enforcement officer. We reverse, holding that the jury instruction stating that the trespass or narcotics investigation constituted the lawful execution of a legal duty impermissibly directed a verdict for the State. By failing to instruct the jury that the investigation must be “lawful” in order for it to find that the officer was executing a legal duty, the trial court took the issue away from the jury.

Sergeant Baer, Officer Jozwick, and four other officers were driving in an unmarked vehicle when Sergeant Baer observed Evans in the parking lot of an open convenience store talking to another male, which he knew from past encounters. He noticed the other male had money in his hands and watched as Evans tossed an object into his month. Under the belief that he just witnessed a drug transaction and that the men were trespassing, Sergeant Baer decided to conduct an investigatory stop. The police vehicle then pulled up to the men, and Officer Jozwick exited the vehicle, signaling them to stop with his hand. Evans then grabbed officer Jozwick’s thumb, and a struggle ensued. Following the incident, Evans was charged with felony resisting with violence and felony battery on a police officer.

During trial, the court conducted a charge conference at which defense counsel requested that the jury be given the following instruction: “[I]f you find that the police officer had reasonable suspicion to detain you for a criminal investigation, then you should find that the officer was lawfully executing a legal duty. If you find that Officer Jozwick did not have reasonable suspicion to detain the defendant for a criminal investigation, then you should find that Officer Jozwick was not executing a lawful duty and thus you should find the defendant not guilty as to the crimes charged.”

The State objected to the instruction, arguing that the jury instruction should state that the officer needed probable cause in order to have been executing a legal duty. The trial court denied defense counsel’s request, and instead, advised that it was going to give the following instruction: “[T]he Court further instructs you that conducting a trespass or narcotic investigation is a lawful execution of a legal duty.” In response, defense counsel asked that the word “lawful” be inserted before trespass, and the State agreed. The Court, however, over defense counsel’s objection, declined to change the instruction to include the word “lawful.” The instruction was subsequently submitted to the jury as proposed by the trial court. Evans now appeals, arguing that the trial court erred in giving the abovementioned instruction. We agree.

To prove felony resisting with violence pursuant to section 843.01, Florida Statutes (2007), and felony battery on a law enforcement officer pursuant to 784.03 and 784.07, Florida Statutes (2007), the State must prove that the officer was lawfully executing a legal duty at the time of the incident. Accordingly, a jury instruction should not define the “lawful execution” element in a way that takes the issue from the jury. State v. Anderson, 639 So. 2d 609, 610 (Fla. 1994). A jury instruction is valid “as long as the jury understands that it must decide that the officers were in fact performing the duty described.” Perry v. State, 861 So. 2d 462, 464 (Fla. 1st DCA 2003) (citing Anderson, 639 So. 2d at 610). In Anderson, the Florida Supreme Court held that “in those cases where the defendant maintains that the arrest was unlawful and requests that the jury be instructed on that defense, an instruction should be given to insure that the jury understands that it must decide the issue.” 639 So. 2d at 610.

The jury instruction in this case was improper because it did not convey to the jury that it was to determine whether the trespass or narcotic investigation was lawful. Although defense counsel did not maintain that the arrest was unlawful, it did assert that the stop was unlawful and thus, the instruction should have made clear that the jury was to decide this issue. See id. By inserting the word “lawful” before “trespass” in the jury instruction, the instruction would have conveyed to the jury that it needed to determine that the investigation was lawful before it could find that officer Jozwick was executing a legal duty. Campbell v. State, 812 So. 2d 540, 544 (Fla. 4th DCA 2002) (holding that by omitting the word “lawful” before “arrest,” the jury instruction failed to clarify that the “arrest itself must have first been lawful”). Accordingly, the trial court’s failure to give the requested jury instruction constituted error.

We also conclude that the error in this case is reversible. Although not all erroneous failures to give a jury instruction constitute reversible error, the failure to give the requested instruction does constitute reversible error when it is established that: “(1) [t]he requested instruction accurately states the applicable law, (2) the facts in the case support giving the instruction, and (3) the instruction was necessary to allow the jury to properly resolve all issues in the case.” Campbell, 812 So. 2d at 544 (citing Langston v. State, 789 So. 2d 1024, 1026 (Fla. 1st DCA 2001)). Here, the requested jury instruction correctly stated the applicable law, the facts supported giving the instruction because the lawfulness of the stop was a central issue in the case, and it was necessary to convey to the jury that it must decide that issue. Because each of the elements was established, the trial court’s failure to give the requested instruction constituted reversible error. Id.

Reversed.

WARNER and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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K.W., a juvenile, Appellant,
v.
The State of Florida, Appellee. No. 3D08-2473. District Court of Appeal of Florida, Third District. Opinion filed May 20, 2009.An Appeal from the Circuit Court for Miami-Dade County, Douglas J. Chumbley, Judge. Lower Tribunal No. 07-5837.

Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.

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

Before ROTHENBERG, LAGOA, and SALTER, JJ.

ROTHENBERG, J.

K.W. appeals from an order withholding adjudication of delinquency and placing him on probation after the trial court found that K.W. committed battery¹ and first degree petit theft. Because the State failed to establish that the market value of the stolen property exceeded $100, we reverse and remand with instructions to reduce the offense level from first degree petit theft to second degree petit theft.

The two victims in this case, Erik Johannessen (“Johannessen”) and his girlfriend (“the girlfriend”), were spending a day on Miami Beach during their vacation. The couple left their beach bag near their rented chairs while they swam in the ocean. Upon emerging from the water, Johannessen immediately noticed that the beach bag—containing two cell phones, two iPod music players, a disposable camera, a wallet, and a purse—was missing.

Johannessen ran up the sand dune toward the street in search of the missing bag. There, on the far side of the sand dune, he saw two juveniles carrying the bag. The juveniles set the bag down, two more juveniles joined them, and all four began to rifle through the bag. When the group noticed Johannessen’s presence, they scattered. Johannessen pursued, caught K.W., and grabbed his arm. K.W. pleaded, “I didn’t take your phone,” and held out the girlfriend’s cell phone. K.W. attempted to escape. However, with the help of two others, Johannessen restrained K.W. until the police arrived.

The State charged K.W. with third degree grand theft on the theory that K.W. was responsible for the theft of the contents of the entire bag. However, at the adjudicatory hearing, and on K.W.’s motion for judgment of acquittal, the trial court found that the State failed to prove that K.W. had any involvement with the theft of the bag or its contents, other than the girlfriend’s cell phone, which he had in his possession. Although the trial court found that the State failed to establish that the cell phone’s value exceeded $300, the trial court found that there was sufficient evidence from which the trial court could conclude that the cell phone was worth in excess of $100. Thus, the trial court found that K.W. committed a first degree petit theft.

On appeal, K.W. argues that given the lack of evidence as to the cell phone’s value, the trial court erred in finding that it was worth in excess of $100, and therefore, he can be adjudicated delinquent of no more than a second degree petit theft. We agree.

Under section 812.014(2)(e), Florida Statutes (2007), to establish the commission of a first degree petit theft, the State was required to prove that the stolen property’s value exceeded $100. Generally, and no exception is applicable here, “value means fair market value at the time of the theft.” Bloodsaw v. State, 994 So. 2d 378, 379 (Fla. 3d DCA 2008) (citing § 812.012(10)(a)(1), Fla. Stat. (2003)). Where a witness has personal knowledge regarding the stolen property, the value of the property may be established by direct testimony of its fair market value (usually by the owner), or alternatively, by establishing the cost minus depreciation, taking into account the stolen property’s original cost, the manner in which it was used, its condition and quality, and the percentage by which its value has depreciated. Bloodsaw, 994 So. 2d at 380; Negron v. State, 306 So. 2d 104, 108 (Fla. 1974), receded from on other grounds, Butterworth v. Fluellen, 389 So. 2d 968 (Fla. 1980); Mansfield v. State, 954 So. 2d 74, 76-77 (Fla. 4th DCA 2007).

At the instant adjudicatory hearing, Johannessen testified, but his girlfriend, who owned the cell phone in question, did not, and Johannessen was unable to provide direct testimony establishing the cell phone’s fair market value. As to his personal knowledge of the value of his girlfriend’s cell phone, Johannessen testified that he did not know the cell phone’s purchase price, but that it was silver, it had a number of video/camera features, and it was a more expensive and “nicer” model than his cell phone, which cost him $250. Johannessen did not provide any testimony about the age of the cell phone, its quality, condition, or any depreciation to its value. Despite Johannessen’s inability to testify as to the cell phone’s value, the trial court determined that the cell phone’s value exceeded $100, based on Johannessen’s testimony and the trial court’s own life experiences.

We recognize that pursuant to section 812.012(10)(b), Florida Statutes (2007), even where the value of the stolen property cannot be ascertained, “the trier of fact may find the value to be not less than a certain amount.” See Jackson v. State, 413 So. 2d 112, 114 (Fla. 2d DCA 1982) (holding that where the nature of stolen property indicates an incontrovertible minimum value, the trier of fact may rely upon general knowledge to assess a minimum value, although no direct evidence is presented). However, such a discretionary assessment of value is permissible only in “those rare cases where the minimum value of an item of property is so obvious as to defy contradiction.” Weatherspoon v. State, 419 So. 2d 404, 405 (Fla. 2d DCA 1982). This is not such a case. Therefore, we conclude that the trial court erred in finding that the value of the girlfriend’s cell phone exceeded $100.

Accordingly, we reverse the trial court’s order insofar as it finds that K.W. committed first degree petit theft, and remand with instructions to reduce the level of the offense to petit theft in the second degree. Because the issue was not presented in this appeal, we affirm without comment that portion of the order finding that K.W. did commit a battery.

Affirmed in part, reversed in part, and remanded with instructions.

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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