Florida Criminal Law Opinions

GORMAN J. ROBERTS, Petitioner,
v.
STATE OF FLORIDA and AL LAMBERTI, as Sheriff of Broward County, Florida, Respondents.

No. 4D09-2376.

District Court of Appeal of Florida, Fourth District.

June 30, 2009.

Petition for writ of habeas corpus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Eric M. Beller, Judge, L.T. Case No. 09-11121CF10A.

Howard Finkelstein, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, Fort Lauderdale, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for respondent State of Florida.

PER CURIAM.

On our own motion we withdraw the opinion issued on June 26, 2009, and substitute the following:

Petitioner Gorman J. Roberts filed this habeas corpus petition seeking release from his detention following a decision by the magistrate to deny release on bond. We grant the petition and remand for further proceedings forthwith.

Petitioner Roberts was arrested for aggravated battery with a deadly weapon, criminal mischief and violation of an injunction for protection from domestic violence. Upon arrest, no bond was set. At a first appearance hearing, the presiding judge held him without bond on each count on the grounds that he was a danger to the community. This finding came after the prosecutor told the judge that petitioner had a prior conviction for loitering and for shooting/throwing a deadly missile. The prosecutor also told the court that petitioner’s offenses violated an injunction previously entered. Defense counsel’s objection and argument that the charges were bondable offenses was overruled summarily by the judge.

The prosecutor did not move for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132. The magistrate failed to consider whether there were any conditions of release which could reasonably protect the community from risk of physical harm. Florida Rule of Criminal Procedure 3.131(b). In these circumstances, petitioner is entitled to habeas corpus relief. See, e.g.,Rodriguez v. Jenne, 963 So. 2d 933 (Fla. 4th DCA 2007). Lee v. State, 956 So. 2d 1292 (Fla. 4th DCA 2007).

Respondent has filed a response to this court’s order to show cause agreeing that the case should be remanded for a hearing on the subject of bond.

Accordingly, we grant the petition for writ of habeas corpus and remand to the trial court for further bond proceedings forthwith and in accordance with this opinion.

POLEN, FARMER and MAY, JJ., Concur.

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LAWRENCE DIGSBY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-0364.

District Court of Appeal of Florida, First District.

Opinion filed June 30, 2009.

An appeal from the Circuit Court for Escambia County, Nickolas P. Geeker, Judge.

Lawrence Digsby, pro se, Appellant.

Bill McCollum, Attorney General and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of all but two of appellant’s claims.

As to appellant’s claim that counsel was ineffective for failing to obtain videotapes which allegedly showed the incident giving rise to the charges (ground D), we reverse and remand for the trial court to either attach portions of the record conclusively refuting the claim or for an evidentiary hearing. As to appellant’s claim that counsel was ineffective for failing to impeach Mr. Swindell with prior convictions (ground M), we reverse and remand with directions that the trial court give appellant leave to amend his facially insufficient claim. See Spera v. State, 971 So. 2d 754 (Fla. 2007) (holding that a trial court must allow the defendant at least one opportunity to amend a facially insufficient postconviction motion if it can be amended in good faith).

AFFIRMED in part, and REVERSED and REMANDED in part, with directions.

ALLEN, PADOVANO and BROWNING, JJ., CONCUR.

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

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ANGELA F. WILLIAMS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-0168.

District Court of Appeal of Florida, First District.

Opinion filed June 30, 2009.

An appeal from the Circuit Court for Nassau County, Robert M. Foster, Judge,

Angela F. Williams, pro se, Appellant.

Bill McCollum, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Angela Williams entered into a negotiated plea of guilty to violating her probation. Based on the negotiated plea, the trial court sentenced her to three years’ imprisonment with credit for time served from the appellant’s most recent arrest. The court did not award Williams any credit for time spent in prison on her original sentence, and in neither the written admission nor the plea colloquy was the issue discussed. Williams now argues that she is entitled to credit for the 18 months she served in prison on the incarcerative portion of her original split sentence and to jail credit for time served in the original sentence.

The appellant’s motion is facially insufficient with regard to the jail credit, we therefore affirm the trial court’s summary denial of the appellant’s jail credit claim without further comment. However, the appellant’s claim for prison credit appears to have merit.

When a defendant is given a split sentence, serves time in prison, is released on probation, and subsequently violates that probation, the defendant is entitled to credit for time served in prison on the original sentence unless the appellant specifically waives the right to credit as part of a negotiated plea. See Waters v. State, 662 So. 2d 332 (Fla. 1995); Wells v. State, 751 So. 2d 703 (Fla. 1st DCA 2000). The record before us contains no documentation that Williams waived her entitlement to credit for prison time served.

On appeal from a summary denial, this Court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2). Because the record does not conclusively refute the appellant’s claim, we reverse the appellant’s claim to prison credit and remand the cause to the trial court for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

WOLF, WEBSTER, and CLARK, JJ., CONCUR.

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

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ALLEN McGRIFF, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-1282.

District Court of Appeal of Florida, First District.

Opinion filed June 30, 2009.

An appeal from the Circuit Court for Duval County, Charles W. Arnold, Judge.

Nancy A. Daniels, Public Defender, M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.

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

THOMAS, J.

Appellant seeks review of his convictions and sentences for attempted second-degree murder with a firearm and aggravated battery with a firearm. He alleges that the trial court reversibly erred in reading the jury instruction on the law of principals in response to a question from the jury and that his prison releasee reoffender sentence is unconstitutional. We agree that the trial court erred in instructing the jury on the law of principals. As such, we reverse and remand for a new trial.

Appellant’s charges arose out of a shooting that occurred at a flea market in Duval County, Florida. During the trial testimony, no evidence was offered that Appellant acted in concert with others in committing the crimes, although there was testimony that he was standing in a group when the shooting occurred. Before the jury retired for deliberations, the jury instructions were read, which did not include the principals instruction. During deliberations, the jury asked the following question: “If defendant was in the group, but we can’t decide if he was [sic] shooter can we convict [sic] of battery?” In response to the question, and over the objection of defense counsel, the trial court read the following instruction on the law of principals:

If the defendant helped another person or persons attempt to commit a crime or commit a crime, the defendant is a principal and must be treated as if he had done all of the things the other persons did if the defendant had a conscious intent that the criminal act be done and, second, the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other persons to actually commit or attempt to commit the crime. To be a principal, the defendant does not have to be present when the crime was committed.

The trial court abused its discretion in instructing the jury on the law of principals. The principals instruction may be given if the evidence adduced at trial supports such an instruction. See Masaka v. State, 4 So. 3d 1274, 1284 (Fla. 2d DCA 2009); Wells v. State, 967 So. 2d 418, 419 (Fla. 1st DCA 2007); Lewis v. State, 693 So. 2d 1055, 1057 (Fla. 4th DCA 1997); Thomas v. State, 617 So. 2d 1128, 1128 (Fla. 3d DCA 1993). If there is no evidence that would support the principals theory, then the reading of the instruction is error. See id. Such an error is not harmless when it is capable of misleading the jury in such a way that the defendant’s right to a fair trial is prejudiced. See Masaka, 4 So. 3d at 1286; Wells, 967 So. 2d at 419.

In the instant case, there was no evidence offered that Appellant worked in conjunction with anyone else to commit the crimes. Such a theory was never argued before the jury, and the instruction on principals was neither requested by the State nor read in the original reading of the jury instructions. The instruction was only given after the jury presented the court with a question regarding its inability to determine whether Appellant was the actual shooter. Where there was no evidence offered that Appellant acted with anyone in committing the shootings, the trial court erred in reading the principals instruction. See Lovette v. State, 654 So. 2d 604, 606 (Fla. 2d DCA 1995) (holding that the trial court committed reversible error in instructing the jury on a principals theory because there was no evidence that the appellant acted in concert with anyone in committing the charged offenses).

Further, the error was not harmless in that it was likely to cause the jury to be confused as to whether they could return a guilty verdict if Appellant was in a group of people but another member was the actual shooter. The jury’s question indicates that there was already some confusion regarding the verdict, and the trial court’s improper reading of the principals instruction could have only furthered the confusion. Additionally, it is not apparent from the verdict form if the jury convicted Appellant on a principals theory. As such, the reading of the instruction is reversible error. See Wells, 967 So. 2d at 419 (finding that reading the principals instruction was not harmless error where the verdict did not reveal whether the jury relied on the principals theory to convict and the instruction was likely to cause confusion). Finally, the error was especially prejudicial because it was done after the closing argument, when the defense had no opportunity to address this new theory of the case. See Knuth v. State, 679 So. 2d 22 (Fla. 2d DCA 1996); King v. State, 642 So. 2d 649 (Fla. 2d DCA 1994), disapproved of on other grounds by Welsh v. State, 850 So. 2d 467 (Fla. 2003).

Accordingly, because the trial court erred in instructing the jury on the law of principals and the error was not harmless, we reverse Appellant’s convictions and sentences and remand for a new trial.

REVERSED and REMANDED.

DAVIS and BROWNING, JJ., CONCUR.

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

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MICHAEL TIMOTHY SHORES, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-0557.

District Court of Appeal of Florida, First District.

Opinion filed June 30, 2009.

An appeal from the Circuit Court for Jackson County, William L. Wright, Judge,

Nancy A. Daniels, Public Defender, David P. Gauldin, Assistant Public Defender, and Alice B. Copek, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

Michael Timothy Shores appeals the upward departure sentence imposed upon resentencing below. Because the trial court identified no valid basis for departure, we reverse and remand for resentencing within the guidelines range. Contending the written reasons for departure—that he violated his probation by engaging in conduct similar to the original offense and had been designated as a sexual predator as a result of the original offense—were invalid grounds for departure, Mr. Shores also appeals the summary denial of his postconviction claim that counsel was ineffective for failing to present mitigation evidence at sentencing. Our reversal for resentencing renders the ineffective assistance of counsel claim moot.

Background

Mr. Shores pleaded guilty to sexual activity on December 1, 1997, as a person 24 years of age or older, with a 17-year-old. He was sentenced to four years in prison followed by five years on probation. As a condition of probation, he was “prohibited from any unsupervised contact with a child under the age of 18, unless authorized by the sentencing court, without another adult present who is responsible for the child[`]s welfare and who has been advised of the crime.” At his probation revocation hearing, he admitted he contacted a 15-year-old, indirectly through a third-party (via mail) and directly with e-mails, telephone calls and letters. After his probation was revoked for having had unsupervised contact with a child under the age of 18, he was resentenced to 15 years in prison.

Alleging this resentencing was predicated upon an improperly-calculated scoresheet, he filed a motion for postconviction relief. In response to the motion, the trial court granted an evidentiary hearing (without objection) to determine whether the original scoresheet correctly identified a sentencing guidelines range of 128.9 months (10.74 years) to 214.8 months (17.9 years). At the hearing, the parties agreed the proper sentencing guidelines range was 84.6 months (7.05 years) to 141.1 months (11.76 years). A corrected scoresheet notwithstanding, the trial court again resentenced him to 15 years’ imprisonment, departing upward from the guidelines, giving two reasons: (1) he violated his probation by engaging in conduct similar to the original offense, and (2) he had been designated a sexual predator on account of the original offense.

Upward Departures Under Section 921.001(6)

On direct appeal, we review the imposition of an upward departure sentence for an abuse of discretion. See Lawson v. State, 812 So. 2d 518, 518 (Fla. 1st DCA 2002). When applicable,¹ section 921.001(6), Florida Statutes (2007), affords discretion to trial courts to impose a departure sentence if at least one reason justifying departure is set forth in writing at the time of sentencing:

A court may impose a departure sentence outside the sentencing guidelines based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence in accordance with s. 921.0016. The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a preponderance of the evidence. When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure. Any sentence imposed outside the range recommended by the guidelines must be explained in writing by the trial court judge.

The State and Mr. Shores agree that none of the factors specified in section 921.0016 apply to the case at bar. But, as they also agree, section 921.0016′s list of factors is not exhaustive. § 921.0016(2), Fla. Stat. (2007) (“Aggravating and mitigating factors to be considered include, but are not limited to, those listed in subsections (3) and (4).”).

The trial court’s first stated reason for departure was that the conduct that led to revocation of Mr. Shores’ probation closely resembled the offense of which he had originally been convicted. The supreme court has, indeed, held that sentencing for a criminal offense that is part of a pattern of criminal behavior² may warrant an upward departure: Keys v. State, 500 So. 2d 134 (Fla. 1986), we recently rejected the argument that a trial judge’s consideration of a defendant’s “escalating course of criminal conduct” was nothing more than consideration of a defendant’s prior criminal history contrary to Hendrix. Hendrix precludes reliance upon only those aspects of a defendant’s prior criminal record which have been factored in for scoring purposes. See Hendrix, 475 So. 2d at 1220. Neither the continuing and persistent pattern of criminal activity nor the timing of each offense in relation to prior offenses and release from incarceration or supervision are aspects of a defendant’s prior criminal history which are factored in to arrive at a presumptive guidelines sentence. Therefore, there is no prohibition against basing a departure sentence on such factors.

Williams v. State, 504 So. 2d 392, 393 (Fla. 1987). There, is, however, a prohibition against basing a departure sentence on conduct occurring after a criminal offense, when resentencing for the offense after a probation violation. See Lambert v. State, 545 So. 2d 838, 842 (Fla. 1989) (“[W]e hold that factors related to violation of probation or community control cannot be used as grounds for departure.”).

Our supreme court has held that even recurrent criminal conduct—absent temporal proximity or escalation³ —does not justify upward departure. See Barfield v. State, 594 So. 2d 259, 261 (Fla. 1992). In the present case, the trial judge found neither temporal proximity nor any pattern of criminal activity: The conduct to which Mr. Shores admitted at the revocation hearing cannot be deemed a crime. Sexual activity with a 17-year-old, by a person 24 years of age or older, was a second-degree felony. See § 794.05(1), Fla. Stat. (1997). But his subsequent, unsupervised contact with a 15-year-old, while grounds for revocation of Mr. Shores’ probation—he does not argue otherwise—did not provide a basis for upward departure.

The trial court also justified upward departure by reference to Mr. Shores’ sexual predator designation. This, too, was improper. The Florida Sexual Predators Act denominates sexual predator designation as merely the recognition of a “status” flowing from, in this case, the original conviction:

It is the purpose of the Legislature that, upon the court’s written finding that an offender is a sexual predator, in order to protect the public, it is necessary that the sexual predator be registered with the department and that members of the community and the public be notified of the sexual predator’s presence. The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.

§ 775.21(3)(d), Fla. Stat. (2007). The state’s brief seems to concede, by implication, the inadequacy of this ground in arguing that “at least one of the reasons relied upon by the trial court in imposing an upward departure sentence is supported by the record” (emphasis added) and focusing exclusively on the first ground for departure, discussed above. Sexual predator designation is an invalid ground for upward departure.

Because the trial court failed to articulate a valid reason for upward departure, we reverse and remand for resentencing, after a new sentencing hearing, within the guidelines range.

Reversed and remanded.

KAHN and VAN NORTWICK, JJ., CONCUR.

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

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Notes:

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KYLE BASS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-6218.

District Court of Appeal of Florida, First District.

Opinion filed June 30, 2009.

An appeal from the Circuit Court for Duval County, John M. Merrett, Judge.

Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant challenges his convictions for second degree murder and tampering with evidence. The appellant’s arguments that the trial court erred in denying his motion for judgment of acquittal on the two charges are without merit, and his conviction for tampering with evidence is affirmed. However, because the trial court gave the standard jury instruction for the lesser-included offense of manslaughter by act, which an average juror would understand as requiring the additional element of intent to kill, the appellant’s conviction for second degree murder is reversed and the case is remanded for further proceedings. See Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009); Washington v. State, 34 Fla. L. Weekly D743 (Fla. 1st DCA April 13, 2009).

ALLEN, WOLF, and DAVIS, JJ., CONCUR.

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

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JERMAINE WRIGHT, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-57.

District Court of Appeal of Florida, Fifth District.

Opinion filed June 26, 2009.

3.850 Appeal from the Circuit Court for Brevard County, Charles M. Holcomb, Judge.

Jermaine Wright, Madison, pro se.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, Jr., R., Senior Judge.

Jermaine Wright challenges the summary denial of his postconviction motion. His first two claims alleged trial counsel was ineffective in questioning a police officer at trial and failing to depose a witness before trial. The next two claims alleged the trial court committed fundamental error by admitting hearsay evidence at trial and then convicting him in the absence of sufficient evidence of guilt. We affirm the denial of relief on these four claims, as each was either conclusively refuted by the record, procedurally barred, or otherwise without merit.

Wright’s fifth and final postconviction claim alleged counsel was ineffective for coercing him to testify and telling him what to say on the stand. He further claimed counsel misadvised that if he testified, counsel would ensure he was sentenced to only three years’ imprisonment on the lesser charge of aiding and abetting. Wright asserted that the outcome of the trial would have been different if counsel had not forced him to testify. The trial court did not address this claim and the limited portions of the record before us do not refute it.

Therefore, we remand for the trial court to either hold an evidentiary hearing on ground five or attach those portions of the record conclusively refuting the claim.

AFFIRMED in part; REVERSED in part, and REMANDED.

SAWAYA and COHEN, JJ., Concur.

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TRAVIS DEVINCEY SMITH, Appellant,
v.
STATE OF FLORIDA, ET AL., Appellee.

Case No. 5D09-170.

District Court of Appeal of Florida, Fifth District.

Opinion filed June 26, 2009.

Appeal from the Circuit Court for Marion County, Sandra Edwards-Stephens, Judge.

Travis D. Smith, Blountstown, pro se.

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

PER CURIAM.

Appellant challenges the lower court’s order denying his petition for writ of abeas corpus. He contends that the trial court improperly dismissed the petition on procedural grounds without addressing the merits. We agree with Appellant and reverse.

Appellant was charged with second-degree murder in an information filed by the statewide prosecutor. In his petition for habeas corpus, Appellant challenged the jurisdiction of the statewide prosecutor, and thus, the jurisdiction of the trial court to adjudicate the charges. The trial court did not reach the merits of the petition, concluding that Appellant waived the issue by not pursuing it in a direct appeal or in a post-conviction motion pursuant to Florida Rule of Criminal Procedure 3.850. The State initially urged that the trial court was correct, but after we ordered supplemental briefing the State acknowledged that the trial court should have addressed the merits of Appellant’s claim that it lacked jurisdiction. Spaulding v. State, 965 So. 2d 350 (Fla. 4th DCA 2007);Brown v. State, 917 So. 2d 272 (Fla. 5th DCA 2005). The State now urges that the trial court’s ruling could be affirmed under the “Tipsy Coachman” doctrine. We are unable to confirm on this record that affirmance is appropriate and decline to apply the doctrine.

On remand, the trial court shall address the merits of Appellant’s petition.

REVERSED and REMANDED.

TORPY and LAWSON, JJ., and COBB, W., Senior Judge, Concur.

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LANCE T. HARTWELL, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-1161.

District Court of Appeal of Florida, Fifth District.

Opinion filed June 26, 2009.

3.850 Appeal from the Circuit Court for Putnam County, Edward Hedstrom, Judge.

Lance T. Hartwell, Bonifay, pro se.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

COBB, W., Senior Judge.

Appellant, Lance T. Hartwell, was convicted and sentenced in four separate cases after all were consolidated for a single jury trial. Hartwell makes several claims for postconviction relief. All but two of them are procedurally barred because they could or should have been raised on direct appeal. Smith v. State, 445 So. 2d 323 (Fla. 1983). Hartwell’s claims that the State did not provide notice of its intent to habitualize him or proper proof of his predicate offenses to support habitualization require reversal.

To refute Hartwell’s claim regarding the lack of notice of habitualization, the trial court attached to its order a notice of intent to habitualize in a different case than the one in which Hartwell was habitualized. The State concedes that this does not conclusively refute Hartwell’s claim. While lack of written notice of habitualization can be harmless error if the defendant had actual notice, whether Hartwell had actual notice would have to be determined in an evidentiary hearing. Massey v. State, 609 So. 2d 598, 600 (Fla. 1992). Therefore, we reverse and remand for either attachment of those portions of the record conclusively refuting Hartwell’s claim or an evidentiary hearing.

Hartwell also alleges that the State did not provide certified copies of his predicate convictions to prove that he qualified to be sentenced as a habitual offender. Hartwell’s claim that the State did not prove his prior convictions at sentencing is facially insufficient because Hartwell does not deny that he qualifies to be sentenced as a habitual offender. Sampson v. State, 832 So. 2d 251 (Fla. 5th DCA 2002). Instead of striking the claim and allowing an amendment as is required by Spera v. State, 971 So. 2d 754 (Fla. 2007), the trial court held that Hartwell’s reply to the State’s response was his amendment to that claim and denied it. The trial court’s denial without affording Hartwell an opportunity to amend was error under Spera. We therefore reverse and remand to allow Hartwell to amend this facially insufficient claim within a reasonable time set by the trial court.

We affirm the denial of postconviction relief in all other respects.

AFFIRMED in part; REVERSED in part; and REMANDED

ORFINGER and LAWSON, JJ., Concur.

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REGINALD V. DAVIS, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-4371.

District Court of Appeal of Florida, Fifth District.

Opinion filed June 26, 2009.

3.800 Appeal from the Circuit Court for Marion County, David B. Eddy, Judge.

Reginald V. Davis, Jr., Chipley, pro se.

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Appellant, Reginald Davis, challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

On June 23, 2004, Appellant pled guilty to three counts of sexual battery on a child under twelve by a person under eighteen years of age in violation of section 794.011(2)(b), Florida Statutes. The trial court sentenced him as a youthful offender under section 958.04, Florida Statutes, to two years of incarceration followed by four years of sex offender probation and also designated him a sexual predator. At sentencing, the trial court authorized Appellant’s participation in the boot camp program, and it is undisputed that he successfully completed the program. After Appellant admitted a violation of probation, the trial court revoked it in 2007 and sentenced him to concurrent five-year terms of incarceration with credit for time served.

Appellant subsequently filed the instant rule 3.800(a) motion, asserting that the five-year sentences were illegal because, as a youthful offender who had completed boot camp during his initial incarceration, he could be sentenced to no longer than 364 days in jail under the 2004 version of section 958.045(5)(c), which was in effect when he was originally sentenced.¹ He also asserted that he did not qualify for sexual predator designation. The trial court denied relief on both grounds.

In denying Appellant’s argument that he was illegally sentenced, the trial court ruled that the sentence was legal under section 958.045(5)(c), as amended in 2006. This was erroneous because it violates the ex post facto clause of the Constitution. SeeMorrison v. State, 978 So. 2d 284, 285 (Fla. 4th DCA 2008) (applying 2006 amendment of section 958.045(5)(c), Florida Statutes, to youthful offender originally sentenced under earlier version of statute upon revocation of probation following successful completion of boot camp, violated ex post facto clause of Constitution); see also Adderly v. State, 958 So. 2d 997 (Fla. 5th DCA 2007); Fettler v. State, 885 So. 2d 411, 412 (Fla. 1st DCA 2004). Because the trial court imposed an illegal sentence, Appellant is entitled to resentencing under the pre-amendment version of section 958.045(5)(c).

The trial court did not err in designating Appellant a sexual predator. Because he as sanctioned as an adult, his criminal conviction triggered designation as a sexual predator. Cf. State v. J.M., 824 So. 2d 105, 108 n.4 (Fla. 2002) (an adult sentence is improper when a juvenile is charged as an adult, but sanctioned as a juvenile).

Accordingly, we affirm Appellant’s designation as a sexual predator, but reverse his sentence following revocation of probation and remand for resentencing.

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER and LAWSON, JJ., Concur.

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Notes:

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