Florida Criminal Law Opinions

R.E., a child, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-2099. District Court of Appeal of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County, Robert Pegg, Judge, L.T. Case Nos. 312007CJ000782A & 312008CF000178A.

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

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

DAMOORGIAN, J.

The Appellant, R.E., appeals the trial court’s denial of his motion for judgment of dismissal on the charge of felony criminal mischief. We agree and reverse his conviction and sentence on this charge.

The manager of IMG Groves was called to the grove on the morning of February 29, 2008, because an unknown person or persons had trespassed on grove property, started up a fruit loader, and driven into a row of fruit trees, knocking the trees over.

The Appellant was charged with, among other things, felony criminal mischief. At the adjudication hearing, T.C., a co-defendant in the case, testified that he, the Appellant, and another person drove to the grove to hog hunt on the night the trees were destroyed. They did not have permission to go onto the property. After they finished hunting, they wanted to leave by a different way than they entered so they would not get caught. When they tried to leave, however, they noticed that there was a fruit loader blocking the path of their truck. T.C. started up the fruit loader and attempted to move it out of the way, but the gas pedal got stuck. T.C. did not know how to stop the fruit loader as it headed in the direction of a ditch, so he “took out some trees to try to stop the machine.” T.C. testified that he was the only one operating the fruit loader. At the conclusion of the State’s case, the Appellant moved for a judgment of dismissal on the criminal mischief charge, which the trial court denied.

The standard of review for a motion for judgment of dismissal is de novo. J.G. v. State, 915 So. 2d 274, 276 (Fla. 4th DCA 2005). A motion for judgment of dismissal tests the legal sufficiency of the State’s evidence. J.P. v. State, 855 So. 2d 1262, 1264 (Fla. 4th DCA 2003). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

“A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another . . . .” § 806.13(1)(a), Fla. Stat. (2008). A defendant must possess the specific intent to damage the property of another to be found guilty. J.A. v. State, 684 So. 2d 264, 265 (Fla. 4th DCA 1996); Sanders v. State, 950 So. 2d 495, 497 (Fla. 4th DCA 2007).

The Appellant was charged with criminal mischief as an aider or abetter to T.C. In order to convict a defendant for a crime committed by another person, the State must prove that “(1) the defendant had a conscious intent that the criminal act be done and (2) the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person . . . to actually commit the crime.” Ehrlich v. State, 742 So. 2d 447, 450 (Fla. 4th DCA 1999). Mere knowledge of an offense is not enough, nor is mere presence at the scene of the offense. Hill v. State, 958 So. 2d 549, 551 (Fla. 4th DCA 2007).

We reverse because the State did not present any evidence to show that the Appellant had the conscious intent for T.C. to drive the fruit loader into the trees. The evidence showed that the Appellant’s intent was for T.C. to move the fruit loader out of the way. This act, by itself, was not criminal mischief because it was not done with the specific intent to cause damage to the property of another. See J.A., 684 So. 2d at 265. It was only after T.C. started the fruit loader and it malfunctioned that T.C. decided to run it into the trees. This evidence, in the light most favorable to the State, does not support a conviction for criminal mischief. Accordingly, we reverse the Appellant’s conviction and sentence on the criminal mischief charge.

Reversed.

POLEN and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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BRUNO ANDRE, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-1403. District Court of Appeal of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Cynthia L. Cox, Judge, L.T. Case No. 562006CF000059A.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

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

DAMOORGIAN, J.

Bruno Andre (Defendant) appeals his judgment and sentence after a jury found him guilty of, among other things, aggravated false imprisonment. We reverse Defendant’s conviction for aggravated false imprisonment holding that it was fundamental error to convict Defendant of that charge where the State failed to present any evidence that the confinement of the child was without the consent of her parent or legal guardian. We find no merit to Defendant’s other arguments and affirm his convictions on the following charges: (1) luring or enticing a child under the age of twelve in violation of section 787.025, Florida Statutes (2006); (2) child abuse in violation of section 827.03(1)(b), Florida Statutes (2006); and (3) lewd or lascivious molestation — offender eighteen or older, victim twelve or younger in violation of section 800.04(5)(b), Florida Statutes (2006).

The relevant facts are that on January 3, 2006, Defendant and Mona Dosuede registered C.S. (the child) for elementary school. At Dosuede’s request, Defendant agreed to drive the child to school the following day. Dosuede testified that she was not the child’s biological mother but that she had raised the child since she was two years old. There was no evidence presented that Dosuede had legal custody of the child.

The next day, Defendant picked up the child to take her to school. Along the way, Defendant covered the child with a shirt and while stopped at a red light, unbuckled her pants and touched her vagina. He then informed her that they were going to go to a motel. Defendant pulled up to the motel around nine in the morning. The motel clerk observed Defendant drive up and watched as the child exited the vehicle and entered the motel room while Defendant remained outside. When the motel clerk approached Defendant and asked what he was doing with the little girl, Defendant informed him that he was waiting for the child’s mother. Suspicious that something was wrong, the motel clerk wrote down Defendant’s license plate number. When the child came out of the room, the motel clerk approached the child and asked her if she was Defendant’s daughter. She did not respond but instead got in Defendant’s vehicle. Defendant then left the motel and proceeded to drop the child off at her school. The motel clerk called the police, and Defendant was subsequently arrested.

On appeal, Defendant argues that the trial court erred in convicting him of false imprisonment of a child under age thirteen when the State failed to present any evidence that the confinement of the child was without the consent of her parent or legal guardian. He concedes that he failed to preserve this issue for appeal but contends that it is properly before this Court because failure to prove an essential element of the crime constitutes fundamental error. The State responds that it did prove that element by presenting evidence that: (1) Dosuede, although not the biological mother or legal guardian, raised the child for eleven years, provided for her care, and was married to the child’s natural father; and (2) Dosuede authorized Defendant to take the child to school and nowhere else.

“[W]ith two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court.” F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003). The first exception occurs in death penalty cases, where review of the sufficiency of the evidence is mandated by the rule. Id. The second exception is triggered when “the evidence is insufficient to show that a crime was committed at all.” Id.; see, e.g., Vance v. State, 472 So. 2d 734 (Fla. 1985) (holding that the second conviction was “totally unsupported by the evidence” because section 790.10, Florida Statutes (1981) was violated only once in a single episode). “[A] conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error.” Troedel v. State, 462 So. 2d 392, 399 (Fla. 1984); Rodriguez v. State, 964 So. 2d 833, 836 n. 1 (Fla. 2d DCA 2007) (“It is [] fundamental error to convict a defendant when the State has failed to prove an element that is essential to the commission of the crime.”); see, e.g., Alvarez v. State, 963 So. 2d 757, 764-65 (Fla. 3d DCA 2007) (holding it was fundamental error to convict the defendant of the crime of carjacking when the victim was unaware of the theft — an element of the offense).

Section 787.02(1)(a), Florida Statutes (2006) defines false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” If the confinement is of a child under age thirteen, then it is against her or his will if it is “without the consent of her or his parent or legal guardian.” Section 787.02(b), Fla. Stat. (2006). While there is no precise definition of legal guardian, the Fifth District Court of Appeal in Cason ex rel. Saferight v. Hammock, 908 So. 2d 512, 517 n. 2 (Fla. 5th DCA 2005), “found a definition of the term `legal guardianship’ in section 39.01(34), Florida Statutes (2003), which provides that the term `means a judicially created relationship between the child and caregiver which is intended to be permanent and selfsustaining and is provided pursuant to the procedures in chapter 744.’”

Our analysis of the issue and the result reached are constrained by the wording of section 787.02(3)(a), Florida Statutes (2006). Here, Dosuede testified that she was the child’s godmother and that she helped raise the child since she was two. She did not, however, testify that she had legal custody or guardianship of the child and no evidence was presented to that effect. Without such evidence, the State could not prove that the confinement was against the child’s will. Because the State failed to prove an essential element of the crime, it was fundamental error to convict Defendant of aggravated false imprisonment.

Accordingly, we reverse Defendant’s conviction for aggravated false imprisonment in violation of section 787.02(3)(a), Florida Statutes (2006).

Affirmed in part; Reversed in part.

WARNER and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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SAUL AJPOP, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-1264. District Court of Appeal of Florida, Fourth District. May 20, 2009.Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Krista Marx, Judge, L.T. Case No. 2003CF008327AXX.

Saul Ajpop, Arcadia, pro se.

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

PER CURIAM.

Because we are unable to assess the significance, if any, of an error in the jury instruction on self defense, we reverse and remand to the trial court for the purpose either to hold an evidentiary hearing or attach portions of the record clearly refuting the claim that any Strickland¹ prejudice has been shown.

Reversed.

WARNER, FARMER and DAMOORGIAN, 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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N.S., Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D07-4723. District Court Of Appeal Of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy, Judge; L.T. Case No. 05-16675 CF10A.

Michael D. Gelety, Fort Lauderdale, for appellant.

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

PER CURIAM[.

N.S. pleaded no contest to manslaughter and robbery, both second degree felonies. See §§ 782.07(1) and 812.13, Florida Statutes (2007). The judgment entered by the trial court, however, indicates that the crimes were first degree felonies. As such, we remand for the court to correct the typographical error on the judgment. We affirm in all other respects.

Affirmed.

FARMER, HAZOURI and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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JASON SHENFELD, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D07-4386. District Court Of Appeal Of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No. 2002CF001816AXXXMB.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

Jason Shenfeld timely appeals the trial court’s sentencing order imposing a fifteen-year prison sentence after Shenfeld violated the terms of his administrative probation. Shenfeld raises two issues on appeal. First, whether the retroactive application of section 948.06(1)(d) Florida Statutes (2007) violates the prohibition against ex post facto laws. We hold that the retroactive application of section 948.06(1)(d) does not violate ex post facto. Next, Shenfeld argues that the trial court erred by sentencing him to fifteen years because that sentence exceeds the original split sentence he received. Poore v. State, 531 So. 2d 161 (Fla. 1988). We agree that Shenfeld received a true split sentence and, therefore, could receive only the five-year prison term imposed by the original split sentence.

In July 2002, Shenfeld entered an open plea of guilty to a robbery charge. The trial court adjudicated him guilty of robbery and sentenced him to five years in prison, but suspended the entire sentence and ordered him to serve five years of drug offender probation. In 2004, Shenfeld filed a motion to terminate his probation, stating that he had complied with and completed all of its terms. Instead of terminating his probation, the trial court modified his probation to administrative probation.

On July 23, 2007, an affidavit of violation of probation was filed alleging that Shenfeld had committed several new law violations. Shenfeld had been arrested without a warrant on the new law violations several days earlier. An amended affidavit was filed on October 1, 2007 changing the dates of the alleged offenses. Shenfeld moved to dismiss the affidavit of violation of probation based on lack of jurisdiction. The trial court denied this motion and Shenfeld was arraigned on the amended affidavit. After an evidentiary hearing, the trial court found that Shenfeld had violated his probation and revoked that probation. Over Shenfeld’s objection that he could be sentenced to no more than the five-year suspended sentence that had previously been imposed, the trial court sentenced him to fifteen years in prison. Shenfeld appeals the trial court’s ruling on his motion to dismiss and his sentence.

The issues on appeal require a legal determination based on undisputed facts. Accordingly, the standard of review is de novo. Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002).

Shenfeld first argues that the trial court erred by retroactively applying section 948.06(1), Florida Statutes (2007), the probation violation tolling statute. He reasons that, had the trial court applied the probation violation tolling statute that was in effect when he was originally placed on probation, the trial court would have lost jurisdiction to consider his violation of probation because no warrant had been issued prior to the expiration of his probationary period.

It is axiomatic that “[o]nce a term of probation has expired, a court lacks jurisdiction to entertain an application for revocation of probation based upon a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation.” Clark v. State, 402 So. 2d 43, 44 (Fla. 4th DCA 1981). At the time Shenfeld was placed on probation, section 948.06(1), Florida Statutes provided for the tolling of the probationary period as follows:

Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary period is tolled until the court enters a ruling on the violation. Notwithstanding the tolling of probation as provided in this subsection, the court shall retain jurisdiction over the offender for any violation of the conditions of probation or community control that is alleged to have occurred during the tolling period.

(emphasis added). Thus, there were two requirements to tolling the probationary period: (1) filing of an affidavit of violation of probation, and (2) the issuance of an arrest warrant. See id. If the defendant’s probation period had expired and these requirements were not met, the trial court did not have jurisdiction to hear the application for revocation of probation. Jean-Gilles v. State, 921 So. 2d 860, 862 (Fla. 4th DCA 2006).

In 2007, prior to the expiration of Shenfeld’s term of probation, the Florida Legislature amended section 948.06(1), Florida Statutes to allow for tolling of the probationary period “[u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, a warrantless arrest under this section, or a notice to appear under this section . . . .” § 948.06(1)(d), Fla. Stat. (2007) (emphasis added). By adding the italicized language, the legislature made it clear that the issuance of a warrant is no longer a requirement to toll the probationary period.

It is undisputed that Shenfeld was arrested without a warrant and no arrest warrant for the new law violations was issued during Shenfeld’s probationary period. In addition, an affidavit of violation of probation was filed during Shenfeld’s probationary period. The issue is whether retroactive application of the 2007 amendment to section 948.06(1)(d), Florida Statutes (2007) constitutes an ex post facto violation. We conclude that it does not and, therefore, that the trial court had jurisdiction to revoke Shenfeld’s probation and sentence him.

We begin our analysis with the well-established legal principle that retroactive application of a new law is not an ex post facto violation if the statutory change is merely procedural and does not alter the definition of criminal conduct or increase the penalty by which the crime is punishable. Morrow v. State, 914 So. 2d 1085, 1086 (Fla. 4th DCA 2005) (citing Gwong v. Singletary, 683 So. 2d 109, 112 (Fla. 1996)). We consider the 2007 amendment to section 948.06(1), Florida Statutes to be procedural in nature because the purpose and effect of the amendment was to toll the probationary period in order to allow the violation of probation to be heard. Peninsular Props. Braden River, LLC v. City of Bradenton, 965 So. 2d 160, 162 (Fla. 2d DCA 2007) (holding that a provision tolling time for seeking judicial review when a property owner initiates a proceeding under the Environmental Dispute Resolution Act was procedural in nature). To the extent that our decision conflicts with the First District’s decisions Frye v. State, 885 So. 2d 419 (Fla. 1st DCA 2004) and Harris v. State, 893 So. 2d 669 (Fla. 1st DCA 2005), we certify a conflict.¹

We do hold, however, that the trial court erred by sentencing Shenfeld to fifteen years in prison after he had received a true split sentence of five years.

Poore v. State, 531 So. 2d 161 (Fla. 1988) our supreme court identified five basic sentencing alternatives in Florida. Among them is the “true split sentence” consisting of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion. Id. at 164. In a later decision, the Court recognized that a trial court may impose a true split sentence in which the entire period of incarceration is suspended provided there is a valid reason for a downward departure. State v. Powell, 703 So. 2d 444, 445 (1997); Snell v. State, 902 So. 2d 957, 959 (Fla. 4th DCA 2005). When revoking the probation of a defendant who has received a true split sentence, “[a] sentencing judge may not order new incarceration that exceeds any remaining balance of the suspended incarceration portion of the original sentence, less credit for time served.” Snell, 902 So. 2d at 959.

The State argues that Shenfeld’s sentence was an illegal downward departure based on, among other things, scoresheet errors, and that Shenfeld was improperly placed on drug offender probation and administrative probation. These arguments were waived by the State because it did not object to or timely appeal from any of the alleged errors by the trial court. State v. Dort, 929 So. 2d 1190, 1190-91 (Fla. 4th DCA 2006); State v. Ackerman, 785 So. 2d 1229, 1231 (Fla. 4th DCA 2001).

Based upon Shenfeld’s original suspended sentence, the maximum sentence he could have received was five years for violating the terms of his probation. Accordingly, on remand we direct that Shenfeld be resentenced for his violation of probation to a term of five years.

Reversed.

WARNER and STEVENSON, 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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TERENCE MORRIS, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D07-2356. District Court Of Appeal Of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Alfred J. Horowitz, Judge; L.T. Case No. 01-19914 CF10A.

Carey Haughwout, Public Defender, Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, and Terence Morris, Lake City, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

In this Anders¹ appeal, we affirm the conviction, the sentence, and the order denying the appellant’s rule 3.170(Z) motion to withdraw his plea, but we remand for the trial court to correct the judgment to reflect that count I, attempted armed sexual battery, is a second degree felony, see §§ 794.011(3), 777.04(4)(c), Fla. Stat. (2001), not a first degree felony.

FARMER, HAZOURI and GERBER, 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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Anthony Nottage, Appellant,
v.
The State of Florida, Appellee. No. 3D07-1209. District Court of Appeal of Florida, Third District. Opinion filed May 20, 2009.An Appeal from the Circuit Court for Miami-Dade County, Julio E. Jimenez, Judge, Lower Tribunal No. 04-7772.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

Before GERSTEN, C.J., and RAMIREZ and SALTER, JJ.

RAMIREZ, J.

Anthony Nottage appeals his judgment of conviction and sentence on the grounds that the trial court erred because, after it gave an Allen¹ charge following a note that the jury was deadlocked, it failed to declare a mistrial. We conclude that, based on the totality of the circumstances, the trial court did not coerce the jury to return a verdict.

I. Factual BackgroundThe State of Florida charged Nottage with numerous crimes, including attempted first-degree felony murder, kidnapping, three counts of sexual battery, attempted sexual battery, aggravated battery, burglary, child abuse, and grand theft of a motor vehicle. The jury began deliberations at 6:25 p.m. on a Friday. At the start of deliberations, the trial court informed the jury that it would “probably call it a night” at approximately 7:30 p.m. and have the jury return the following Monday, if the jury had not arrived at a verdict by that time.

During deliberations, the jury sent a note in which the jurors asked if alternate jurors could join in the deliberations “for more opinions.” At 7:30 p.m., the trial court sent the jury a note stating that “only six of you can decide the case. We are going to recess for the evening.” The trial court thereafter dismissed the jury for the evening.

Deliberations continued the following Monday at 9:30 a.m. At that point, the trial court advised counsel that, after the jurors were sent home on Friday night, one of the jurors remained behind and expressed concerns for her safety because she lived and worked in the same community as some of the individuals connected to the case. The defense moved for a mistrial. The trial court conducted an inquiry of the juror, and the juror assured the trial court that she could continue with her deliberations. The trial court denied the motion for mistrial.

At approximately 11:00 a.m. that same day, the jurors resumed deliberations. Soon thereafter, the jurors sent a note that read as follows:

First degree: Four yes; maybe, one; no, one.

Kidnapping: Four, yes; no, two.

Sexual battery: Yes, five; no, one.

Aggravated battery: Yes, four; maybe, two.

Burglary, trespassing: Yes, five; no, one.

The Allen charge is contained in Florida Standard Jury Instruction (Criminal) 3.06, which reads as follows:

I have only one request of you. By law I cannot demand this of you, but I want you to go back into the jury room, then, taking your turns, tell each of the other jurors about any weaknesses of your own positions. You shall not interrupt each other’s comments or each other’s views until each of you have had a chance to talk.

After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mistried, and will discharge you with my sincere appreciation for your services. You may now retire to continue with your deliberations. Thank you, Ladies and Gentlemen.

After reading these instructions, the jury resumed deliberations at approximately 4:00 p.m.

Around 4:55 p.m., the jury sent another note that read as follows: “[W]e are still five to one, all the way down.” Because the judge had failed to admonish the jury not to disclose the numerical results of their votes during deliberations as instructed in the Thomas² case, it now became clear that there was a lone holdout in the jury room. The trial court dismissed the jurors for the evening.

The proceedings resumed the following day at approximately 10:00 a.m. The trial court then advised counsel that one of the jurors previously had asked the bailiff for a private conversation with the judge, which the trial court did not permit.

Defense counsel moved for a mistrial based upon the note in which the jury indicated that there was a vote of five to one and the exchange that occurred between the juror who requested a private conversation with the judge. The trial court denied the motion and ordered the jury at approximately 10:50 a.m. to continue with deliberations.

A short time thereafter, the trial court received the following note from the jury: [Juror's name] would like to be removed from this trial. It is causing me a great deal of stress, because I cannot come to a decision on this matter. I thought I could be fair and impartial, but I am trying very much so, but, sir, could you please excuse me?

The trial court summoned the attorneys to the courtroom. About ten minutes elapsed before all the lawyers returned to the courtroom. At that point, the jury sent out the completed verdict forms, finding Nottage guilty as charged on all counts. Defense counsel again moved for a mistrial, arguing that the jury had been deadlocked after the jury sent the note that followed three days of deliberations. The trial court denied the motion.

II. AnalysisThe United States Supreme Court set forth Allen v. United States, 164 U.S. 492 (Fla. 1896), what has come to be known as the Allen charge and thereby approved an instruction given when it appears that the jury encounters difficulty in reaching a verdict. The applicable standard of review here is whether, under the totality of circumstances, the trial court’s actions were coercive. See Thomas v. State, 748 So. 2d 970, 976 (Fla. 1999); Nelson v. State, 438 So. 2d 1060 (Fla. 4th DCA 1983). A trial court commits error when it couches an instruction to a jury or otherwise acts in any way that would appear to coerce any juror to reach a hasty decision or to abandon a conscientious belief in order to achieve a unanimous position. Thomas, 748 So. 2d at 976.

Nottage argues that a new trial is warranted in reliance upon numerous cases that have reversed guilty verdicts where the jury returned verdicts after the trial court ordered the jury to continue deliberations following an Allen charge and a subsequent jury deadlock. For example, Warren v. State, 498 So. 2d 472 (Fla. 3d DCA 1986), we stated “that no juror should ever be pressured by an `Allen’ charge to give up his or her conscientious convictions simply for the sake of arriving at a verdict.” Id. at 477.

Tomlinson v. State, 584 So. 2d 43 (Fla. 4th DCA 1991), the judge was confronted with a similar situation as in this case. After announcing a deadlock, the judge gave the Allen charge, but the jury could still not reach a unanimous verdict. Instead of declaring a mistrial, the judge sent the jury home, with the following instruction:

I have your last note here, `The poll of the jury indicated that reading parts of the testimony would not affect our inability to reach a unanimous decision.’ I might add parenthetically, put a comma there, and say `at this time.’ It’s not unusual after a trial of this kind to have juries deliberate one, two, three, four, five, six, seven days. It’s not unusual. I know you’re discouraged that you haven’t reached a verdict yet, but I know there are still avenues for discussion and for resolving any differences that may be prevalent among some jurors. And with this in mind, with the permission of both sides, I’m going to recess the trial tonight.

. . . Personally, what I do when I have a problem is say a prayer for guidance. That may be an absolute last resort, because you still have to follow the law in this case, but it may help you resolve some conflict in your own minds.

Id. at 44. The jury was to resume deliberations on the following day. The Fourth District held that it was fundamental error for the trial court to send the jury back for deliberations after it announced a second deadlock, with what was basically a second Allen charge. Id. at 45. In our case, after giving the Allen charge, the trial judge did not instruct the jury any further, but simply sent it home.

Rubi v. State, 952 So. 2d 630 (Fla. 4th DCA 2007), the Fourth District Court of Appeal again held that the trial court committed fundamental error where the clear implication of the jury’s second note, after the Allen charge, was that the jury was unable to reach a unanimous decision. The judge then reinstructed the jury as follows:

Ladies and Gentlemen, the question I have is as follows: “One of our jurors is assuming and speculating on the evidence. Based upon his responses he is not following the law. The facts of the case is being said to not be factual and/or not conceivable.” Signed again by the foreperson.

Ladies and Gentlemen, pursuant to the instructions I previously gave you, both orally and verbally, I’m going to repeat one of those instructions. It’s under 3.10, Rules For Deliberations, Subsection 1.

You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.

Thank you very much, Ladies and Gentlemen, you may reconvene for your deliberations. Thank you.

Id. at 633. A few minutes after receiving this instruction, the jury returned a verdict of guilty. See Washington v. State, 758 So. 2d 1148, 1154 (Fla. 4th DCA 2000) (stating that “[o]nce the Allen charge is given, flexibility is lost and the trial crosses the river of no return . . . [I]t is per se reversible error to repeat a deadlock jury instruction and send a jury back for further deliberations after it has announced a second deadlock”).

No other district court has adopted a per se rule mandating a mistrial after the jury is still deadlocked after an Allen charge. This Court, in Warren, 498 So. 2d at 472, employs a more flexible standard to conclude that the trial court committed fundamental error. We explained as follows:

After reading Standard Jury Instruction (Criminal) 3.09, the trial judge added some additional comments which made it clear that she did not wish to try this case again, that it would cost a great deal of money to retry the case, and that she sincerely hoped that the jury could return a verdict if at all possible. Subsequently, after the jury sent back two notes stating that the jurors were hopelessly deadlocked, the trial court declined to accept this result, and eventually sent the jury home for an overnight recess after nearly eight hours of deliberation. (FN2) Prior thereto, during a colloquy with the jury in open court, the forewoman of the jury stated that “I really don’t think we are able to come close,” and the trial judge replied, “Try,” indicating that the judge wanted a verdict. When the jury returned the next morning, the trial judge again made it plain that she wanted a verdict in the cause, stating “I … hope that it will be a productive day. Try to resolve your differences, if you possibly can. Okay. Go get `em.”

[(FN2.) The defendant urges that the overnight recess constitutes a reversible error in this case. Livingston v. State, 458 So. 2d 235 (Fla. 1984). In view of the result we reach, it is unnecessary for us to address this issue.

Based on the totality of the circumstances present here, we believe the trial court's deviations from the standard jury charge on a deadlocked jury went to the very foundations of this case such as to constitute a fundamental error. This is so because the comments complained of infected the very integrity of the fact-finding process in that the trial judge (a) stated, over and again, that she wanted a verdict in the cause, and (b) emphasized the needless cost involved in retrying the case in the event of a hung jury—both of which are strictly forbidden comments in an "Allen" charge under Florida law. By so doing, we believe the trial court may have unwittingly led one or more jurors to capitulate against his or her conscientious judgment and to return a unanimous verdict in the cause as the trial court desired. We conclude that fundamental error is thereby presented under these circumstances.

Id. at 477.

Our case is significantly different in that the trial court only gave the standard Allen charge without editorializing. It did not express any opinion, or say anything further to the jury except declare a recess and send the jury home for the evening. Thus, we are urged again to declare that an overnight recess alone, after an Allen charge, constitutes reversible error, a rule we decline to adopt. See Warren, 498 So. 2d at 477 n.2. We believe such a bright-line rule would be in conflict with Thomas, which stated that the standard of review was whether, under the totality of circumstances, the trial court's actions were coercive. See Thomas, 748 So. 2d at 976.

The circumstances in Rubi and Warren evidently affected the holdout juror's decision because the jury reached a verdict shortly after resuming deliberations immediately after the court's last instruction. The totality of the circumstances in those cases, unlike the circumstances here, supported a finding of improper coercion of the jury.

We have taken into account the jury's unsolicited disclosure of its numerical divisions when it first reported it was deadlocked and the court gave the Allen charge. As the Florida Supreme Court stated in Thomas:

Although this information was not requested by the judge, its disclosure was fraught with the danger that any further instruction to deliberate might be construed as pressure on the single "holdout" to give in. We have recently reiterated that the better practice is for the trial judge to admonish the jury at the outset of deliberations that they should not indicate how they stand during their deliberation. See Scoggins v. State, 726 So. 2d 762, 767 (Fla. 1999). Further, a judge, consciously or subconsciously, may be influenced by the knowledge that there is a lone holdout to insist that the jury continue deliberating in order to reach a verdict. The apparent temptation is that the single holdout may give in at any time. Thomas, 748 So. 2d at 979. Similarly, in our case, the trial judge did not request the jury's numerical division, but neither did he admonish the jury at the outset of deliberations not to disclose the voting results. Furthermore, when the jury reported its vote tally, the trial judge still did not admonish the jury. This disclosure "was fraught with the danger that any further instruction to deliberate might be construed as pressure on the single `holdout' [juror] to give in.” Id. The better practice, as the Florida Supreme Court reiterated in Thomas, is “for the trial judge to admonish the jury at the outset of deliberations that they should not indicate how they stand during their deliberations.” Id. No such admonishment occurred here. Nevertheless, because the trial court gave no further instructions to the jury after the Allen charge or in any way coerce a verdict, we conclude that the totality of the circumstances surrounding the jury’s deliberations have not rendered the verdict unreliable.

III. ConclusionWe thus conclude that, under the totality of the circumstances here, the trial court did not commit reversible error recessing the trial until the following day after giving the Allen charge.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

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Courtesy of David Edelstein

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DAVID RAY, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D05-3841. District Court Of Appeal Of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 04-14771 CF10A.

Carey Haughwout, Public Defender, and John M. Conway, 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.

ON REMAND FROM THE SUPREME COURT OF FLORIDAPER CURIAM.

We reconsider on remand our opinion Ray v. State, 941 So. 2d 569 (Fla. 4th DCA 2006), which the Florida Supreme Court reviewed Ray v. State, No. SC06-2385, 2009 WL 702859 (Fla. Mar. 19, 2009).

Ray argued to this court that the trial court erred in sentencing him as a prison releasee reoffender (“PRR”) based on allegedly inadmissible hearsay evidence, that is, a “Crime and Time Report” which the Department of Corrections (“DOC”) issued. 941 So. 2d at 569-70. This court affirmed based on our en banc opinion Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006). In Yisrael, this court held that, during sentencing, a DOC release-date letter was admissible, under the public records exception to the hearsay rule, to establish a defendant’s status as a habitual violent felony offender. Id. at 549-50.

The Florida Supreme Court, however, Yisrael v. State, 993 So. 2d 952 (Fla. 2008), concluded that DOC release-date letters alone are not admissible under either the business or public records exceptions to the hearsay rule. Id. at 960. Instead, the supreme court held that a signed release date-letter, written under seal, or a section 90.902(11) business record certification, may be used to authenticate an attached DOC “Crime and Time Report” to render the entire report admissible under the public records exception to the hearsay rule. Id. (citing Parker v. State, 973 So. 2d 1167, 1168-69 (Fla. 1st DCA 2007); § 90.902(11), Fla. Stat. (2004)).

Following the disposition of Yisrael, the supreme court issued an order in this case directing the State to show cause why the supreme court should not remand for reconsideration in light of its decision in Yisrael. The State supplied the supreme court with a DOC business records certification, contained within the appellate record, which the State used to authenticate the “Crime and Time Report” upon which the trial court based Ray’s PRR sentence. After Ray conceded this point, the supreme court approved of this court’s ultimate result in Ray’s case, disapproved of our reliance on Yisrael, and remanded for further proceedings in accordance with its opinion.

Therefore, based upon the supreme court’s mandate issued April 14, 2009, we modify our affirmance of Ray’s conviction and sentence consistent with the supreme court’s opinion filed March 19, 2009.

HAZOURI, CIKLIN and GERBER, JJ., concur.

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JAMES INGRAM, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D05-2158. District Court of Appeal of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; David Krathen, Judge; L.T. Case No. 03-19684 CF10A.

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 SUPREME COURT OF FLORIDAPER CURIAM.

We reconsider on remand our opinion Ingram v. State, 943 So. 2d 325 (Fla. 4th DCA 2006), which the Florida Supreme Court reviewed in Ingram v. State, No. SC06-2469, 34 Fla. L. Weekly S295 (Fla. Mar. 19, 2009).

Ingram argued to this court, among other things, that the trial court erred in designating and sentencing him as a prison release reoffender (“PRR”) on Count I (burglary of a dwelling with battery). 943 So. 2d at 327. This court affirmed as to Count I based on our en banc opinion Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006). In Yisrael, this court held that, during sentencing, a DOC release-date letter was admissible, under the public records exception to the hearsay rule, to establish a defendant’s status as a habitual violent felony offender. Id. at 549-50.

The Florida Supreme Court, however, Yisrael v. State, 993 So. 2d 952 (Fla. 2008), concluded that DOC release-date letters alone are not admissible under either the business or public records exceptions to the hearsay rule. Id. at 960. Instead, the supreme court held that a signed release date-letter, written under seal, or a section 90.902(11) business record certification, may be used to authenticate an attached DOC “Crime and Time Report” to render the entire report admissible under the public records exception to the hearsay rule. Id. (citing Parker v. State, 973 So. 2d 1167, 1168-69 (Fla. 1st DCA 2007); § 90.902(11), Fla. Stat. 2004)).

Following the disposition of Yisrael, the supreme court issued an order in this case directing the State to show cause why the supreme court should not remand for reconsideration in light of its decision in Yisrael. In response, the State asserted that documents submitted during sentencing complied with the supreme court’s Yisrael decision. Because the full appellate record was not before the supreme court, the court granted Ingram’s petition for review, quashed our decision, and remanded this case to this court for reconsideration in light of Yisrael.

We have reviewed the full appellate record, and it appears that the State, at sentencing, supplied the trial court with a signed release dateletter, written under seal, to authenticate an attached DOC “Crime and Time Report” upon which the trial court based Ingram’s PRR sentence on Count I. Accordingly, we now affirm Ingram’s PRR designation and sentence on Count I consistent with the supreme court’s opinion filed March 19, 2009, and mandate issued April 14, 2009. However, pursuant to our opinion issued December 13, 2006, we remand for resentencing on Count II (grand theft). 943 So. 2d at 327.

GROSS, C.J., HAZOURI and GERBER, JJ., concur.

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ANGEL RIVERA, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D05-1491. District Court of Appeal of Florida, Fourth District. May 20, 2009.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 00-04939 CF10A

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Monique E. L’Italien, Assistant Attorney General, West Palm Beach, for appellee.

ON REMAND FROM THE SUPREME COURT OF FLORIDAPER CURIAM[.

We reconsider on remand our opinion Rivera v. State, 939 So. 2d 1197 (Fla. 4th DCA 2006), which was quashed by the Florida Supreme Court following its decision in Rivera v. State, 34 Fla. L. Weekly S292 (Fla. Mar. 27, 2009). As ordered by the Supreme Court, we apply its decision Yisrael v. State, 993 So. 2d 952 (Fla. 2008), to the facts of this case.

In Yisrael, the Supreme Court disapproved of this Court’s holding Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006), which was the case relied upon by this Court in holding that the Department of Correction’s letter, alone, was sufficient evidence of Rivera’s last release date to sentence him as a habitual felony offender (HFO). See Rivera, 939 So. 2d at 1197. Given the Supreme Court’s reasoning in Yisrael, we now reverse Rivera’s sentence as a HFO because a Department of Correction’s letter, alone, is insufficient to support sentencing as a HFO. See Yisrael, 993 So. 2d at 961. We, therefore, remand for resentencing consistent with the supreme court’s decision in Yisrael. Upon remand, the State may present additional evidence to prove that the defendant qualifies for habitual felony offender sentencing. State v. Collins, 985 So. 2d 985, 990 (Fla. 2008).

Reversed and Remanded.

Hazouri, May and Damoorgian, JJ., concur.

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