Florida Criminal Law Opinions

THOMAS F. MATHENY, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-3776.

District Court of Appeal of Florida, First District.

Opinion filed June 24, 2009.

An appeal from the Circuit Court for Madison County, Leandra G. Johnson, Judge.

Nancy A. Daniels, Public Defender; and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.

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

BROWNING, J.

A jury found Thomas F. Matheny, Jr. (Appellant) guilty, as charged, of one count of willfully refusing or failing to stop and fleeing a law-enforcement officer, who was driving a patrol vehicle with identifying insignia and who had activated the siren and lights, a violation of section 316.1935(2), Florida Statutes (2007) (Count One); and one count of resisting an officer without violence, a violation of section 843.02, Florida Statutes (2007) (Count Two). The trial court classified Appellant as a habitual felony offender and sentenced him to seven years’ incarceration on Count One and to time served on Count Two. Because Appellant has not shown fundamental error, we affirm his convictions and sentence.

For the first time on appeal, Appellant contends that the evidence is insufficient to prove either of the two charged offenses. Specifically, he asserts that the State failed to show a willful refusal, failure to stop, or flight from law enforcement or willful resisting of an officer. The sufficiency of the evidence was not challenged in the trial court. In fact, at the end of the State’s case, defense counsel (Mr. Hargrove) orally acknowledged that the State had “barely” presented a prima facie case, so that the case should go to the jury on both counts. Because the question of the sufficiency of the evidence was not preserved via a timely, specific challenge in the trial court, Appellant’s claim is not cognizable on direct appeal unless he can demonstrate fundamental error. F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003). Of the two exceptions to the preservation requirement (to challenge the legal sufficiency of the evidence) set forth in F.B., the one applying to death penalty cases obviously is inapplicable here. The second exception applies “when the evidence is insufficient to show that a crime was committed at all.” Id. at 230.

We look to the State’s case to determine whether the evidence is sufficient, in the words of F.B., 852 So. 2d at 230, “to show that a crime was committed at all.” Deputy Kirkland, with the Madison County Sheriff’s Office, testified that around 1:30 A.M. on October 16, 2007, as he was traveling southbound on Highway 53 toward Interstate 10, he observed a pickup truck approaching from the opposite direction in the other lane. The deputy’s radar indicated that the pickup truck was going 83 m.p.h. along a 60-m.p.h. stretch of highway. The truck’s right tires went off the roadway onto the grass shoulder for approximately 100 feet. Intending to effect a traffic stop for speeding, Deputy Kirkland pulled over to the shoulder of the road, turned around, and activated his loud sirens and blue strobe lights. His white automobile had the green markings and star insignia clearly indicating it was a sheriff’s department vehicle, including a scroll bar on top and “wig-wags” in the headlights. As the deputy pursued the pickup truck driven by Appellant, the truck accelerated, and at one point Deputy Kirkland was going 110 m.p.h. trying to catch up with the pickup truck, which was proceeding at over 100 m.p.h. Deputy Fletcher and Corporal Maurice, driving marked vehicles with activated sirens and lights, got involved in the high-speed pursuit and were following Deputy Kirkland. There was no other traffic on the roadway at that hour.

Approximately 1-1/2 minutes into the chase, Appellant slowed to about 65 or 70 m.p.h. and tried unsuccessfully to negotiate a sharp left-hand turn onto Harvey Greene Drive; however, his speed thwarted the turn and forced Appellant to veer back onto Highway 53. A dispatch to the Madison Police Department for assistance informed the police that a truck was eluding the authorities and traveling at a high speed toward the city limits of Madison. Although Appellant was traveling north, he crossed a double yellow line and proceeded over a blind overpass in the southbound lane. As Officer Agner and Sergeant Curtis maneuvered their marked police vehicles so as to block the roadway, Appellant decelerated to about 10 m.p.h. and left the road in an effort to go around the blockade. Shortly afterwards, Appellant’s forward movement was blocked, forcing him to stop on the shoulder of the highway about two miles from where the chase began. Five law-enforcement officers approached with their sidearms drawn and loudly ordered Appellant to get out of the truck due to concerns about officer safety. Appellant did not comply with the several commands to park the pickup truck, shut off the engine, and get out. When Sergeant Curtis opened the driver’s side door and grabbed Appellant’s arm to try to remove him from the vehicle, Appellant remained seated, grabbed the steering wheel of the truck with both hands, and resisted until Sergeant Curtis was able forcibly to disengage Appellant’s grip and pull him to the ground. The officers then arrested Appellant.

Section 316.1935(2), Florida Statutes (2007), makes it a third-degree felony willfully to flee or attempt to elude a law-enforcement officer who is in an authorized law-enforcement vehicle with agency insignia and other prominently displayed jurisdictional markings and activated siren and lights. Certainly, the State presented a prima facie case of Appellant’s willful refusal to stop and flight from law-enforcement officers who were pursuing him in clearly marked patrol vehicles with activated sirens and lights. Likewise, the State presented evidence from which the jury reasonably could conclude that after being ordered to turn off the engine and exit the truck, Appellant willfully continued to resist, oppose, or obstruct the officer by grabbing the steering wheel until he was forced out of his seat. See § 843.02, Fla. Stat. (2007).

While admitting that he “may have been” speeding on the date in question, Appellant testified that he had neither seen the deputies in hot pursuit nor noticed their blue lights in the nighttime until he went up the overpass shortly before being stopped. He denied trying to elude the authorities. Appellant testified he had told the officers that his shift was broken and that if he took his foot off the brake, the truck would move. The conflicts in the evidence relating to the two charges presented classic questions for the jury to weigh and resolve. See Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981); Chaudoin v. State, 362 So. 2d 398, 399 (Fla. 2d DCA 1978). The testimonial evidence allowed the jury to find Appellant guilty of both crimes as a matter of law.

Because Appellant has not met the heavy burden to show fundamental error, we AFFIRM the judgment and sentence.

HAWKES, C.J., and VAN NORTWICK, J., CONCUR.

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

Courtesy of David Edelstein

PERNELL BRICKLEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2878.

District Court of Appeal of Florida, Fourth District.

June 24, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Andrew L. Siegel, Judge, L.T. Case No. 06-7494 CF10B.

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

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

Damoorgian, J.

Pernell Brickley (the defendant) timely appeals his conviction for armed trafficking. We reverse, holding that the trial court erred in declining to give his requested special jury instruction on constructive possession because the standard jury instruction was misleading under the facts of this case.

This case arises out of an attempted controlled drug buy between a confidential informant working with the police and an individual identified as Steven Young. After the police called off the drug buy, an order was issued to stop the vehicle in which Young was a passenger. The vehicle was being driven by the defendant. One of the officers involved in the operation ordered the defendant to stop the vehicle. The defendant and Young were then ordered out of the vehicle. Both complied with the police officer’s instruction. After the defendant and Young exited the vehicle, one of the officers testified that when he went into the car, he saw a gun as well as drugs wrapped in cellophane in the center console. The officer described the center console as an open bin that did not close. Young, to the contrary, testified that the console was closed and the contents were not visible. Upon further inspection, the officer learned that the console contained marijuana and cocaine. Young admitted to placing the gun and drugs in the console. He also testified that the defendant knew about the drug transaction. The defendant, on the other hand, testified that he observed Young place several items in the center console as the vehicle was being stopped. At this point, he testified that he first observed a gun, although he did not see any drugs. The drugs and gun were equal distance from both the defendant and Young.

Based on this evidence, defense counsel requested a special jury instruction on constructive possession where the contraband is found on jointly occupied premises. Specifically, defense counsel requested that the following be added to the standard jury instruction on possession:

To establish constructive possession of a controlled substance, the State must show that Pernell Brickley had (1) dominion and control over the contraband, (2) that he had knowledge that the contraband was within his presence, and (3) that he had knowledge of the illicit nature of the contraband.

If the premises on which the contraband is found are in joint, rather than exclusive possession of Pernell Brickley, knowledge of the presence of the contraband on the premises and Pernell Brickley’s ability to maintain control over the contraband will not be inferred. The State must establish knowledge and Pernell Brickley’s ability to maintain control over the contraband by independent proof of Pernell Brickley’s actual knowledge, or evidence of incriminating statements and circumstances other than mere location of the substance.

The trial court denied his request, noting that the first part was already included in the standard instruction. The trial court then gave the following standard jury instruction on possession:

To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.

Possession may be actual or constructive.

Actual possession means

[a] the thing is in the hand of or on the person, or

[b] the thing is in a container in the hand of or on the person, or

[c] the thing is so close as to be within ready reach and is under the control of the person.

Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control.

Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it.

In order to establish constructive possession of a controlled substance, if the controlled substance was in a place over which Pernel[l] Brickley does not have control, the state must prove Pernel[l] Brickely’s control over the controlled substance, and knowledge of the controlled substance that Pernel[l] Brickley had.

Possession may be joint. That is, two or more persons may exercise control over the article . . . . In that case, each of those persons is considered to be in control of the over the [sic] article.

If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.

And exclusive possession means vested in the interest of the subject. If a person does not have exclusive possession of the controlled substance, knowledge of its presence may not be inferred or assumed.

The jury subsequently found the defendant guilty of armed trafficking, and the defendant now appeals, challenging the trial court’s failure to read the special instruction.

When a trial court denies a defendant’s request for a special instruction, the defendant has the burden of showing on appeal that the trial court abused its discretion in giving the standard instruction. Stephens v. State, 787 So. 2d 747, 755-56 (Fla. 2001). A trial court’s failure to give a requested jury instruction is error if the following three elements are satisfied: “(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.” Id. at 756.

The defendant contends that the trial court erred when it declined to give the requested special jury instruction on constructive possession of the premises because the standard instruction did not sufficiently cover his defense, where he alleged that he did not exclusively occupy the vehicle. The State responds that the trial court did not err for two reasons: (1) The instruction was not supported by the evidence because the evidence clearly showed that the defendant had actual possession of the drugs and gun; and (2) The proposed instruction would have been confusing if read in context with the standard jury instruction because the defendant never requested that the portion instructing on the “joint possession of an article” be deleted, as the defendant had Mitchell v. State, 958 So. 2d 496 (Fla. 4th DCA 2007). We agree with the defendant that the special jury instruction was supported by the evidence and disagree with the State that it would have been misleading or confusing to read it in conjunction with the standard instruction.

When contraband is found in a jointly occupied vehicle, rather than on the actual person, the State must prove by independent evidence the defendant’s knowledge and ability to control. Martoral v. State, 946 So. 2d 1240, 1243 (Fla. 4th DCA 2007); Cruz v. State, 744 So. 2d 568, 569 (Fla. 2d DCA 1999). In Martoral, the officers responded to a call that there was illegal narcotics activity taking place at a residence. Id. at 1242. Upon arrival, the officers noticed the defendant and another man sitting in a truck in the driveway. Id. The defendant was in the driver’s seat. Id. One of the officers approached the vehicle and through the open window of the front passenger seat, observed, in plain view, a small bag of marijuana in a small compartment in the dash above the radio. Id. The marijuana was the same distance from both the defendant and the other man. Id. We held that because the drugs were not on the defendant’s person, this was a case of constructive possession, which required the State to prove the defendant’s knowledge of and dominion and control over the contraband. Id. at 1243. In reaching this decision, we explained that “the concepts of `dominion’ and `control’ involve more than the mere ability of the defendant to reach out and touch the item of contraband.” Id. “Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant exercised dominion and control over the drugs.” Id.

Similarly, the contraband and gun in this case were found in the center console of the vehicle driven by the defendant. The items were equal distance from both the defendant and the passenger, and there was evidence that he had no knowledge of the gun or drugs prior to the stop. Therefore, there was evidence supporting an instruction on constructive possession. See, e.g., Mitchell, 958 So. 2d at 500-01 (holding that the evidence supported a jury instruction on constructive possession when the premises where the contraband was found were jointly occupied). Such an instruction supported the defendant’s theory that the vehicle was jointly occupied and thus, the items were not in his possession. Therefore, the defendant was entitled to have the jury instructed that the State was required to prove the defendant’s knowledge of the presence of the drugs and gun as well as his dominion and control over them.

Moreover, we find no merit to the State’s contention that adding the special instruction would be misleading. While it would be clearer for the jury if the conflicting portions of the standard jury instruction were removed in joint possession cases, adding the special jury instruction to the standard instruction would not have made the law more confusing for the jury in this case.

Accordingly, we reverse and remand for a new trial.

POLEN and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Courtesy of David Edelstein

GERALD DAVID ODOM, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-6422.

District Court of Appeal of Florida, First District.

Opinion filed June 24, 2009.

An appeal from the Circuit Court for Escambia County, Jan Shackelford, Judge.

Nancy A. Daniels, Public Defender; and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General; and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

Gerald David Odom (Appellant) appeals an order revoking his probation based on findings that he willfully, substantially violated three general conditions of probation. Concluding that the record does not demonstrate violations of Conditions (1) and (2), we reverse the revocation order and remand for the trial court to strike these findings and to determine whether the violation of Condition (8) alone justifies the revocation of probation and imposition of the same sentence.

Procedural History

In Circuit Court Case No. 2004-CF-5240, Appellant was charged with burglary of an unoccupied dwelling, dealing in stolen property, and petit theft. In Circuit Court Case No. 2005-CF-0382, he was charged with driving while his driver’s license was revoked as a habitual offender. He pled no contest to petit theft and the lesser-included offenses of trespass and grand theft ($300.00 or more) in the 2004 case and to the charged offense in the 2005 case. On April 29, 2005, the trial court accepted the plea and sentenced Appellant, in the 2004 case, to 12 months’ probation on two counts and to 36 months’ probation for grand theft, all of which were to run concurrently. In the 2005 case, Appellant was sentenced to 12 months’ probation, to be served concurrently with the other case. In accordance with the terms and conditions set forth in section 948.06, Florida Statutes (2005), the following are among Appellant’s 22 general conditions of probation:

(1) Each month you will make a full and truthful report to your Probation Officer on the form provided for that purpose.

(2) You will pay to the State of Florida the amount of $50.00 per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.

(8) You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.

On August 24, 2007, an affidavit was filed alleging violations of General Conditions (1), (2), (8), and Special Condition (17). After a hearing, where Appellant was represented by counsel, the trial court orally announced that Appellant willfully, substantially had violated General Conditions (1), (2), and that part of (8) requiring him to report to probation every month between the first and fifth day of the month. The court revoked Appellant’s probation and sentenced him to concurrent terms of 30 months’ incarceration for the two felonies and to time served for the misdemeanors. The court decided not to base the revocation on Appellant’s failure to satisfy his community-service requirements in a timely manner, for Appellant actually completed his service belatedly. Appellant filed a timely notice of appeal.

Subsequently, Appellant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct purported sentencing errors, in which he specifically challenged the trial court’s three grounds for revoking his probation. The court entered an order granting the motion as to a fourth (jurisdictional) claim and directing that the judgment and sentence be corrected to reflect that the violation of probation and sentence applied only to Count Two (grand theft) of the 2004 case; the order set aside the sentence as to the 2005 case. A corrected judgment and sentence was issued. The trial court denied the remaining three claims, concluding that they were not appropriately before the court and citing Jackson v. State, 983 So. 2d 562 (Fla. 2008).

Standard of Review

An order revoking probation is reviewed for an abuse of discretion. State v. Carter, 835 So. 2d 259, 262 (Fla. 2002) (noting that the appellate court determines “whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [appellant's] violation was both willful and substantial”). To trigger revocation of probation, a violation must be willful and substantial. Burgin v. State, 623 So. 2d 575, 576 (Fla. 1st DCA 1993). Reasonable efforts to comply with a condition of probation cannot be deemed a willful violation. Van Wagner v. State, 677 So. 2d 314, 317 (Fla. 1st DCA 1996). In a revocation proceeding, the State must prove its case by a preponderance of the evidence. Hopewell v. State, 680 So. 2d 600 (Fla. 2d DCA 1996). In very rare circumstances, a trial judge exceeds the broad limits of discretion and commits fundamental error, i.e., error that “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error,” in which instances no contemporaneous objection is required. Reed v. State, 837 So. 2d 366, 370 (Fla. 2002) (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)).

Preservation of Errors Alleged on Direct Appeal

Three potential avenues exist for this Court to consider the merits of the issues raised by Appellant on direct appeal. First, “most trial court errors are subject to the contemporaneous objection rule.” Jackson, 983 So. 2d at 567-68. As the court explained Castor v. State, 365 So. 2d 701, 703 (Fla. 1978):

The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually. To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.

In a similar vein, the Supreme Court of Florida stated later:

The requirement of contemporaneous objection thus not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client’s tactical advantage.

F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003). “Errors that have not been preserved by contemporaneous objection can be considered on direct appeal only if the error is fundamental.” Jackson, 983 So. 2d at 568. Like the record in Jackson, the instant record unequivocally demonstrates that Appellant’s counsel did not make a contemporaneous, specific objection during the revocation hearing to any of the trial court’s rulings challenged in this appeal.

Appellant notes that “a defendant has several different options available to raise sentencing errors.” Id. Therefore, a second option exists if any of the three issues on appeal constitute a “sentencing error” as contemplated by rule 3.800(b)(2). If so, then pursuant to Jackson, the absence of a timely objection at the revocation hearing required Appellant to preserve the issue by filing a postsentence motion under rule 3.800(b)(2), which he did. Jackson, 983 So. 2d at 567-68; Boyd v. State, 912 So. 2d 1293 (Fla. 2d DCA 2005) (concluding that appellant preserved issue challenging the evidentiary basis for imposition of $450 in court costs and $128 in investigative costs by filing a rule 3.800(b)(2) motion); Jones v. State, 898 So. 2d 209 (Fla. 2d DCA 2005) (concluding that filing a rule 3.800(b)(2) motion preserved the issue of the trial court’s failure to specify the particular conditions that were grounds for probation revocation).

The third option arises where the error is not a “sentencing error” and no contemporaneous, specific objection was made. In such instances, no rule 3.800(b) motion is necessary to preserve the error, but the district court of appeal will apply the stringent “fundamental error” rule. Jackson, 983 So. 2d at 567. Although Appellant contends that his three claims constitute sentencing errors of the type contemplated in Jackson and cognizable in a rule 3.800(b)(2) motion, the State correctly responds that these claims are not, in fact, sentencing errors. Rather, Appellant’s claims relate to the guilt phase of the revocation proceedings, not to the ultimate sanctions imposed. Jackson, 983 So. 2d at 572-73 (stating that sentencing errors under rule 3.800(b) “all involve errors related to the ultimate sanctions imposed”). Appellant misplaces his reliance on materially different facts in opinions like Lee v. State, 826 So. 2d 457 (Fla. 1st DCA 2002), in which we concluded that the lack of conformity between the trial court’s oral pronouncement and the subsequent written probation revocation order was an issued preserved in the rule 3.800(b)(2) motion. Cf. Jones v. State, 876 So. 2d 642 (Fla. 1st DCA 2004) (affirming judgment and sentence following probation revocation, where issue of trial court’s revoking probation for appellant’s violating conditions neither orally pronounced nor embodied in written order was not preserved by a contemporaneous objection or a rule 3.800(b) motion to correct the error).

Under the circumstances in Lee, defense counsel could not have known at the time of the revocation hearing about any discrepancies between the oral pronouncements and any future written revocation order. In contrast, all of Appellant’s claims involve either the issue of adequate notice of the conditions or the sufficiency of the evidence to justify revocation. The trial court made oral findings at the conclusion of the revocation hearing; therefore, defense counsel could have raised the three claims then in a timely, specific objection. “[R]ule 3.800(b) is intended to permit defendants to bring to the trial court’s attention errors in sentence-related orders, not any error in the sentencing process.” Jackson, 983 So. 2d at 572. The Jackson court made clear the limited permissible use of this avenue for relief:

The rule was never intended to allow a defendant (or defense counsel) to sit silent in the face of a procedural error in the sentencing process and then, if unhappy with the result, file a motion under rule 3.800(b).

Jackson, 983 So. 2d at 573. Neither was the rule intended to bypass the “contemporaneous objection” requirement or to substitute for a collateral claim of ineffective assistance of counsel. Id. Because his three claims do not involve sentencing errors and were not preserved for appellate review, Appellant’s sole remaining option on direct appeal is to show fundamental error.

Condition (1)The first issue is whether the trial court erred by revoking probation based on a violation of Condition (1), which required Appellant “[e]ach month . . . [to] make a full and truthful report to your Probation Officer on the form provided for that purpose.” “[Probationers are entitled to notice `of what law the probationer is alleged to have violated.'" Andrews v. State, 693 So. 2d 1138, 1141 (Fla. 1st DCA 1997) (quoting Burton v. State, 651 So. 2d 793, 794 (Fla. 1st DCA 1995)). "[T]he language used in a condition of probation is determinative of a probationer’s duties and responsibilities while on probation.” Stanley v. State, 922 So. 2d 411, 414 (Fla. 5th DCA 2006). By its plain words, this condition relates only to the requirement to turn in to the probation officer each month a full, truthful form. In contrast, the affidavit of violation of probation alleged 1) not only Appellant’s failure to make a full, truthful report to the probation officer on the form provided, 2) but also his failure to comply with the probation officer’s instructions to report to the probation office sometime on the first through fifth day of each month.

This second, italicized allegation is not mentioned or required under Condition (1). “[T]he violation must mirror the language of the condition of probation allegedly violated.” Stanley, 922 So. 2d at 415. The written transcript of the revocation hearing confirms Appellant’s assertion that no competent, substantial evidence was adduced indicating that Appellant had failed to make a full, truthful monthly report on the form provided. In fact, the subject of a form to be submitted to the probation officer was not even addressed at the hearing. Thus, the State failed to show a willful, substantial violation of Condition (1). Stanley, 922 So. 2d at 415 (stating that “[v]iolation of probation cases adhere to strict due process requirements attendant to criminal cases,” that “[a] probationer must be violated for the reasons stated in the affidavit filed,” and “the violation must mirror the language of the condition of probation allegedly violated”).

“[A] conviction for an offense that did not take place constitutes fundamental reversible error.” Hobson v. State, 908 So. 2d 1162, 1164 (Fla. 1st DCA 2005); seeF.B., 852 So. 2d at 230-31; Santiago v. State, 847 So. 2d 1060, 1062 (Fla. 2d DCA 2003); Griffin v. State, 705 So. 2d 572, 574 (Fla. 4th DCA 1998) (finding fundamental error where appellant was convicted of a crime that did not take place); Harris v. State, 647 So. 2d 206, 208 (Fla. 1st DCA 1994). Likewise, “[i]t is fundamental error to convict a person of an uncharged offense.” Bennett v. State, 823 So. 2d 849, 852 (Fla. 1st DCA 2002). “The revocation of a defendant’s probation based on a violation not alleged in the charging document is a deprivation of the right to due process” constituting fundamental error. Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997); see Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999); Dulaney v. State, 735 So. 2d 505 (Fla. 1st DCA 1999). By analogy, revoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error. Additionally, it is reversible error to revoke probation on Condition (1) based on a purported violation by non-performance—Appellant’s failure to comply with the probation supervisor’s instruction to report to the office sometime on the first through fifth day of the month—where the supposed instruction is neither mentioned nor required in the unambiguous language of Condition (1). Accordingly, the trial court’s finding of a willful, substantial violation of Condition (1) must be stricken from the revocation order. Smith v. State, 711 So. 2d 100, 102 (Fla. 1st DCA 1998).

Condition (2)

It is undisputed that Appellant failed to pay the full costs of his supervision before his probation was revoked. Once non-payment is shown, the probationer has the burden under section 948.06(5), Florida Statutes (2005), to prove, by clear and convincing evidence, his or her inability to pay. Martin v. State, 937 So. 2d 714, 716 (Fla. 1st DCA 2006). Appellant testified that he had tried to make as many payments toward the costs of supervision as his financial circumstances would allow.

It is undisputed that the trial court made no finding as to Appellant’s ability to pay before probation was revoked. “[B]efore a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.”Stephens v. State, 630 So. 2d 1090, 1091 (Fla. 1994); see Bryant v. State, 546 So. 2d 762 (Fla. 5th DCA 1989). The same principle applies to the requirement to pay the costs of probationary supervision. Section 948.06(5) does not relieve the trial court of its duty to determine that the violation was willful by proving the probationer’s ability to pay. Martin, 937 So. 2d at 716; Blackwelder v. State, 902 So. 2d 905, 907 n.1 (Fla. 2d DCA 2005). Because ability to pay is an essential element for a finding that a probationer willfully violated probation for failure to pay supervisory costs, the revocation of Appellant’s probation based on the alleged violation of Condition (2) constitutes fundamental error. Hobson, 908 So. 2d at 1164. Friddle v. State, 989 So. 2d 1254, 1255 (Fla. 1st DCA 2008), we held that revoking the defendant’s probation based on his failure to pay restitution, without a specific finding that he had the ability to pay, compelled reversal. For the same reason, the finding that Appellant willfully violated Condition (2) must be stricken from the probation revocation order.

Condition (8)

Condition (8) required Appellant to do the following: 1) promptly, truthfully answer all inquiries directed to him by the trial court or the probation officer; 2) allow the probation officer to visit Appellant’s home, employment site, and elsewhere; and 3) comply with “all instructions” given by the probation officer. The question of whether the State presented sufficient evidence to prove a violation of Condition (8) is the type of issue appropriately covered by the “contemporaneous objection” requirement, for it involves a matter that readily could have been brought to the trial court’s attention at the revocation hearing, thereby affording the court an opportunity to consider the challenge. See F.B., 852 So. 2d at 229-30. Nevertheless, this issue was not preserved by a timely, specific objection. This claim does not involve a “sentencing error” cognizable in a rule 3.800(b) claim under Jackson. Therefore, we can review this issue only under the stringent standard of fundamental error. Jackson, 983 So. 2d at 566.

On April 29, 2005, Appellant was placed on 36 months’ probation for grand theft. The trial court accepted the testimony of the probation supervisor, Officer Trevino Snowden, that Appellant’s file was transferred to her on November 28, 2005. On December 7, 2005, Appellant reported to the probation office, where an Officer Noland instructed him on the conditions of probationary supervision. Officer Snowden first met with Appellant on January 6, 2006, when they discussed Appellant’s reporting requirements. He was looking for employment then. Officer Snowden specifically instructed Appellant to report sometime on the first two business days of each month or, stated slightly differently by the DOC, sometime during the first five days of each month. Officer Snowden’s case notes disclosed that Appellant continued to report beyond the first five days of each month, prompting her repeatedly to remind Appellant of the requirement to report at the beginning of each month, as he had been instructed to do. Despite Officer Snowden’s reminders, Appellant reported late on April 7, 2006; July 10, 2006; September 8, 2006; October 13, 2006; November 16, 2006; December 18, 2006; January 8, 2007; and February 26, 2007. When he reported late in the month, Appellant sometimes met with another probation officer. On February 19, 2007, Officer Snowden contacted Appellant’s employer, who stated that the company was short on employees and that the workers were required to work long hours. The employer and Officer Snowden scheduled a February 23 appointment for Appellant, but Appellant did not report until February 26, 2007. On March 21, 2007, when Officer Snowden tried to have personal contact with Appellant at his residence, she was told that Appellant was at work. The supervising officer left a card instructing Appellant to contact her as soon as possible. On March 26, 2007, Officer Snowden spoke to Appellant on the telephone and instructed him to schedule an appointment with her as soon as possible. Appellant needed to report on March 29, 2007, between 8:30-9:00 A.M., and he did report on that date. However, Appellant reported late again on April 30, 2007; May 29, 2007; June 18, 2007; July 20, 2007; and August 17, 2007. For at least 13 months, Officer Snowden did not violate Appellant, despite his late reporting, because she wanted to give Appellant a reasonable chance to comply with the rules. However, it is departmental policy to require all offenders to comply with their conditions of probation no later than 90 days before the termination of supervision.

On the afternoon of August 14, 2007, Officer Snowden spoke to Appellant and inquired about his numerous reporting lapses. Appellant told her that he could not report any sooner than the next Monday due to his employment. Officer Snowden informed Appellant that she would be contacting the trial court. The affidavit of violation of probation was signed on August 16, 2007, and filed on August 21. Officer Snowden had informed Appellant’s employer(s) that Appellant was on probation. The officer never had any communication from Appellant’s employer(s) indicating that Appellant could not report to the probation officer if he was working on that date. Officer Snowden testified that she had instructed Appellant that if he contacted her beforehand, they could reschedule his reporting to the office at a mutually convenient time and date if Appellant’s work or personal matters kept him from adhering to the original schedule. Appellant was employed for most of his period of probation. The trial court accepted the testimony that Officer Snowden and Appellant had no agreement allowing Appellant to report late each month.

Appellant, age 29, testified that his trade is remodeling and painting houses. He had about three different jobs during his 36 months’ probation and tried to work as often as possible. Currently, he was living with his mother. He had no car and was unable to drive due to the revocation of his driver’s license for habitual traffic offenses; he relied on family or friends for transportation. Appellant told Officer Snowden about his lack of reliable transportation. Appellant had been on probation before and understood the importance of following the rules and the serious consequences of willful, substantial non-compliance. Appellant testified that on the months when he had reported late, he lacked transportation and “had permission” to report late. When he worked for his landlord, Ron King, Appellant lived in Milton and had to pay for rides to get to Pensacola. Appellant testified that Officer Snowden and a previous probation supervisor were aware of his difficulties reporting between the first and fifth of each month. Appellant acknowledged that Officer Snowden had told him to call her beforehand if he could not report during the required period, but he asserted that the conversation occurred “at the very end.” Appellant testified that he had called his supervisor every month when he would report late or else had left a message with someone else at the probation officer. Appellant was not sure whether he had informed Officer Snowden about leaving messages for her. He “figured” that she had gotten the messages.

Citing Hutchinson v. State, 428 So. 2d 739 (Fla. 2d DCA 1983), and Morales v. State, 518 So. 2d 964 (Fla. 3d DCA 1988), Appellant contends that the requirement for him to report to his probation office sometime between the first and fifth day of each month is a new, special condition that his probation supervisor, and not the sentencing court or Condition (8), imposed. The State counters that revocation is proper because Appellant failed to “comply with all instructions” given to him by the probation officer. Probation may be revoked for violation only of a condition that was imposed by the trial court, not the probation supervisor; that is, “a probation officer cannot prescribe new conditions of probation.” Hutchinson, 428 So. 2d at 740; Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978).

A comparison of the key facts and the language of the particular conditions demonstrates that Appellant’s case law is materially distinguishable. In Morales, the Third District Court concluded that the trial court’s general admonition to “comply with all instructions” did not encompass a specific new requirement imposed solely by his probation supervisor for Morales to set an appointment at a mental-health center for alcohol and drug counseling. 518 So. 2d at 964. Similarly, in Hutchinson, the Second District Court determined that the generalized requirement to comply with “all instructions” given by the probation supervisor did not cover the officer’s specific new instruction to Hutchinson to make immediate contact with an alcohol community treatment service for counseling and therapy if deemed necessary by the agency. 428 So. 2d at 740.

The instant facts are different. By its express language, Condition (8) required Appellant to comply with all instructions and to allow visits by his probation officer at home, at the place of employment, “or elsewhere.” The court accepted Officer Snowden’s testimony that she had instructed Appellant that he was expected to meet with her monthly at the probation office on one of the first five days of each month. This visitation/reporting requirement, which is an essential aspect of the supervisory duties of probation, does not constitute a new, special condition of probation. Rather, it is a reasonable, necessary procedure for implementing the official “visitation” or meeting requirement that clearly is set forth in the written condition. Holterhaus v. State, 417 So. 2d 291, 292 (Fla. 2d DCA 1982) (stating that specific court approval is not necessary for “normal supervisory directions” given by the probation officer); Watkins v. State, 368 So. 2d 363, 365-66 (Fla. 2d DCA 1979) (concluding that a court-approved probation condition, which is substantially like Condition (8), clearly and unambiguously required Watkins to report pursuant to a schedule devised by the probation officer to facilitate supervisory duties, so that Watkins’ unauthorized failure to report constituted a valid basis for probation revocation). Because Appellant was adequately apprised of the requirements of Condition (8) and the grounds for the affidavit of violation as to this condition, and competent, substantial evidence supports this violation, Appellant has not met his burden to show any error, let alone fundamental error.

Because it is unclear from the record whether the trial court would have revoked probation and imposed the same sentence based solely on Appellant’s violation of Condition (8), we are constrained to REVERSE the revocation order and REMAND for further proceedings. Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997);Mordica v. State, 618 So. 2d 301, 305 (Fla. 1st DCA 1993).

HAWKES, C.J., and VAN NORTWICK, J., CONCUR.

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

Courtesy of David Edelstein

MARLON MONROE, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-4595.

District Court of Appeal of Florida, Fourth District.

June 24, 2009.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Sandra K. McSorley, Judge, L.T. Case No. 502006CF 01636AXXXMB.

David F. Pleasanton, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, J.

Two issues have been raised in this appeal from a first-degree murder conviction. The first involves evidence of a confession by testimony from a minister. The second concerns whether the murder was committed in Broward County rather than Palm Beach County where the case was tried.

As to the clergy testimony, the minister testified that he warned defendant several times that he would not treat anything incriminating as confidential. Having been asked by defendant to accompany him to the police station for questioning, he testified that he warned defendant against disclosing anything that “was bad” and that if defendant reported anything that “was bad” the minister would have to tell the police about it. Specifically, the minister said:

“be careful what you are about to say to me, because any information that could be damaging, I will be privileged [sic] to the information, and I cannot promise you that I could keep it, because I will become an accessory to whatever.”

He added that if defendant told him something that could get him in trouble with the law, he would have to divulge the information to police.

At that point defendant told the minister that he had killed the victim. Defendant thereupon asked the minister if he could keep the substance of the conversation a secret, but the minister said no. Defendant then told the minister not to bother coming into the police station with him. Defendant entered the police station alone.

The trial court denied his motion to suppress his statements to the minister, holding that he had waived any privilege of confidentiality about the conversation. The court found that after the minister had warned defendant against speaking, he “no longer had a reasonable expectation that the communication was going to remain private under those circumstances.” The court noted that defendant’s history as a police officer in Jamaica affected her determination that defendant had waived any privilege because it indicated his “knowledge and understanding, his intellect, and his capacity to understand.”

In reviewing a trial court’s denial of a motion to suppress, we “accord[] a presumption of correctness to the trial court’s findings of historical fact, reversing only if the findings are not supported by competent, substantial evidence, but review[] de novo whether the application of the law to the historical facts establishes an adequate basis for the trial court’s ruling.” Parker v. State, 873 So.2d 270, 279 (Fla. 2004). Section 90.505(1)(b) explicitly requires that the communication to a member of the clergy be “not intended for further disclosure.” Moreover, § 90.507 provides that:

“A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person . . . voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.”

§ 90.507, Fla. Stat. (2008). The record supports the trial court’s factual finding that defendant knew when he voluntarily made the disclosure to the minister that it would not be held confidential and would be subject to disclosure to the police. We find no error in the admission of the confession.

As to venue, the issue is less clear. The Constitution, provides:

“In all criminal prosecutions the accused shall … have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient … .” Art. I, § 16(a), Fla. Const. (1998). The State is required by rule to allege the venue of the crime charged. Fla. R. Crim. P. 3.140(d)(3) (“Each count of an indictment … shall contain allegations stating as definitely as possible the time and place [e.s.] of the commission of the offense”). The indictment here charged the murder was committed in Palm Beach County but did not mention Broward County as another possible locus of the killing.

The evidence appears indeterminate. The victim was last seen alive in Broward County around 4:00 pm on the day before her body was found. Someone last spoke to her by phone around 5-6:00 pm on that same day. Her body was found in an abandoned auto in Palm Beach County around 8:00 the next morning. That auto had been first seen in the area around 9:00 on the evening before discovery of the body. Another person saw it in the same place around 3:00 on the morning before discovery. Nothing about these circumstances points definitively to either place for the murder.

The medical examiner placed the time of death at sometime after 2:00 pm on the day before her body was found. The first responding officer found her body cold to the touch with rigor mortis. An investigator from the medical examiner’s office found her body cool to the touch.

The lead detective testified there was no evidence indicating she was killed in Palm Beach County. He added that there was simply no evidence indicating where she had been killed. The minister testified that defendant’s confession was that he killed the victim at their apartment in Broward County. There is no other direct evidence as to the place of the murder.

At the end of the evidence, defendant moved for a judgment of acquittal, arguing the lack of evidence as to premeditation. He did not raise any question about the sufficiency of the evidence as to venue. Later in the conference to settle jury instructions, defendant requested a special charge on venue but did not furnish the trial judge with any special text, so the judge gave the standard instruction on venue. After the jury found him guilty, defendant did not seek a new trial on the basis of the failure to prove venue as charged.

Defendant did not raise venue either during or after the trial. He did not raise the issue in his motion for judgment of acquittal.¹ He filed no motion for a new trial based on the failure to prove venue as charged. He did nothing in the trial court to alert the Judge or the State that he had any issue regarding venue.

On appeal now, however, he argues that the failure to prove venue is a substantive error of fundamental proportions not waived by his failure to raise it in the trial court.² Black v. State, 385 So.2d 1372 (Fla. 1980), the supreme court confronred an indictment that failed to allege venue. The issue was whether the conviction could be sustained in spite of the failure to allege venue even though defendant had not been adversely affected by the omission in preparing for trial. The State had furnished defendant with a bill of particulars stating venue. The court ruled that an indictment without an allegation of venue “was fundamentally defective and void” as a matter of substance “and not of form.” Black, 385 So.2d at 1375.

Little more than four years after Black, the supreme court confronted the following certified question:

Is the error in the failure of an indictment to specify the place where the crime allegedly occurred so fundamental that it may be urged on appeal, though not properly presented at the trial court, where the defendant is not hindered in the preparation or presentation of his defense and the situs of the crime is proved at trial? [e.s.]

Tucker v. State, 459 So.2d 306, 307 (Fla. 1984). The court first observed:

“Rather than attempt to draw any distinctions among degrees of fundamental error, we revisit Black to determine whether it is in the best interests of justice to continue to define the allegation of venue to be a `fundamental defect which renders the indictment void.’”

Tucker, 459 So.2d at 307. In answering the certified question the court held that the pleading failure was not reversible error where defendant was not adversely affected by it and venue was sufficiently proved at trial. The court receded from Black, stating that the failure to allege venue is now to be considered a defect of form, not of substance. Tucker, 459 So.2d at 309. In short, a failure to plead venue in an indictment may not amount to fundamental error in a given case.

Here, the body was found in Palm Beach County — suggesting, we suppose, a possible inference she was killed where she was found. Hence the indictment charged venue as being in Palm Beach County. The only evidence at trial specifically about the place of the murder was the confession to the minister that he killed her in Broward County. Defendant did not take the stand, and so there was no opportunity to cross examine him about the venue matter.

We believe this venue issue may be seen in two different formulations: (1) a failure to allege venue jointly in both Broward and Palm Beach Counties, or (2) a failure to prove what was alleged. We know from Tucker that formulation (1) is not necessarily fundamental error and can therefore be waived. We must decide whether formulation (2), a variance between the charge and proof of venue, can also be waived.

The State’s argument, that the issue was waived by his failure to raise it, brings us to the modern status of the venue requirement in criminal cases. Defendant may waive his privilege of venue because it does not involve the power of the court to hear the case. Lane v. State, 388 So.2d 1022, 1026 (Fla. 1980). While it is an important right of the accused in criminal procedure, it is no longer deemed an element of the offense itself and, indeed, may be proved simply by a preponderance of the evidence. McClellion v. State, 858 So.2d 379, 382 (Fla. 4th DCA 2003). In fact, if the failure of the State to prove venue had been raised at trial, the judge had discretion to allow the State to reopen its case to present evidence of venue.³ McClellion, 858 So.2d at 381. McClellion held that venue is a personal privilege of defendant which he may waive, citing both Tucker and Lane.

A rule of criminal procedure provides:

“No indictment … shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment … or for any cause whatsoever, unless the court shall be of the opinion that the indictment . is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction … to substantial danger of a new prosecution for the same offense.”

Fla. R. Crim. P. 3.140(o). Tucker explained this policy thus:

“Any requirement that venue be alleged in an indictment is a procedural rule stemming from common-law applications of due process considerations. In Florida, this requirement arose as a judicial interpretation of a statute which merely required adequate notice. … [U]nder earlier pleading standards, lack of a venue allegation raised the danger of inadequate protection from double jeopardy. This common law requirement is made a part of the modern procedural rules in Florida Rule of Criminal Procedure 3.140(d)(3), but it is also to be read in pari materia with subsection (o) of that same rule, quoted above.

“Nor does any policy argument support absolute adherence to that archaic rule of pleading. Modern discovery procedures have vitiated the danger of prejudice in the preparation of a defense and have led to a relaxation of strict pleading requirements.” [c.o.]

459 So.2d at 308-09. The very heart of this analysis is that a defect arising in the form of prosecution — as opposed to defects of substance or matters of procedure that are structural to all criminal prosecutions — may not be grounds as fundamental error to reverse a conviction unless such defect misleads the accused in preparing a defense or exposes him to another prosecution for the same offense.

We see no indication that the venue defect in this case misled him in preparing his defense, so that leads us to inquire whether it exposes him to another prosecution for the same offense. Tucker explicitly considered whether the failure to allege venue exposed defendant to another prosecution for the same offense. The court said:

“Those facts alleged in the indictment indicate a specific date and a specific victim; other details were provided in a bill of particulars. Finally, the evidence adduced at trial was more than adequate to sustain a Blockburger defense to any possible future prosecution. Blockburger v. United States, 284 U.S. 299 (1932).”

459 So.2d at 308.

We are unable to discern any possibility that defendant is in any danger of being convicted again for this offense in Broward County. The present Indictment identifies a named victim and a specific time of the killing, and the evidence supporting guilt at trial is more than sufficient to sustain a double jeopardy defense in any future prosecution. See Tucker, 459 So.2d at 308. We do not think any failure either to plead dual venue or any divergence of proof so significantly affected the trial that a verdict of guilt could not have been obtained otherwise. Because he waived the issue by failing to raise it in the trial court, we reject his argument that any failure to prove venue in Palm Beach County was reversible error.

Affirmed.

GROSS, C.J., and MAASS, ELIZABETH T., Associate Judge, Concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. Even if he had moved for a judgment of acquittal on account of the failure to prove venue, his remedy may not have been acquittal but merely a new trial. Powell v. State, 181 So. 901 (Fla. 1938); McKinnie v. State, 32 So. 786 (Fla. 1902); Warrace v. State, 8 So. 748 (Fla. 1891); McClellion v. State, 858 So.2d 379, 382 (Fla. 4th DCA 2003).

2. To be deemed fundamental, an error must “reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Walls v. SState, 926 So.2d 1156, 1180 (Fla. 2006). We are cautioned to use fundamental error very guardedly. Farina v. State, 937 So.2d 612, 629 (Fla. 2006) (“We have cautioned appellate courts to `exercise their discretion concerning fundamental error `very guardedly.’ [F]undamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.’ `’).

3. Because defendant was charged by Indictment rather than Information, the trial court could not have simply allowed the State to amend the charging document at trial to conform to the proof. See Fla. R. Crim. P. 3.140(j) (allowing only an Information to be amended).

—————

Courtesy of David Edelstein

JAMIE LEE TASKER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-3072.

District Court of Appeal of Florida, First District.

Opinion filed June 24, 2009.

An appeal from the Circuit Court for Suwannee County, William R. Slaughter, II, Judge.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

VAN NORTWICK, J.

In this appeal of an order revoking probation, Jamie Lee Tasker challenges the assessment on his scoresheet of forty points for victim injury as a result of sexual contact. The scoresheet at issue was prepared for the initial sentencing hearing where probation was ordered following completion of a jail term. The issue of the scoring of victim injury points was not raised at that initial sentencing nor was it raised in the three subsequently held hearings regarding allegations that Tasker violated the conditions of his probation. It was only after Tasker’s probation was revoked and this appeal filed that the issue of the scoring victim injury points for sexual contact was raised. During the pendency of this appeal, appellate counsel filed a motion to correct sentence, pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure, challenging the assessment of forty points. The trial court denied the motion.

Under our case authority, appellant has not preserved the issue of the assessment of victim injury points. As we explainedFitzhugh v. State, 698 So. 2d 571, 573 (Fla. 1st DCA 1997), “an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.” See also Bowman v. State, 974 So. 2d 1205 (Fla. 1st DCA 2008). Importantly, section 924.06(2), Florida Statutes (2007), provides that “an appeal of an order revoking probation may review only proceedings after the order of probation.” We acknowledge other districts have held to the contrary. See Stubbs v. State, 951 So. 2d 910 (Fla. 2d DCA 2007)(holding that trial court erred in refusing to allow defendant to challenge the inclusion of victim injury and legal constraint points at sentencing following revocation of probation); Spell v. State, 731 So. 2d 9 (Fla. 2d DCA 1999)(holding defendant could challenge victim injury points after revocation of community control); Bogan v. State, 725 So. 2d 1216 (Fla. 2d DCA 1999)(holding that defendant could challenge assessment of victim injury points in appeal of revocation of probation despite the fact that defendant did not raise the issue at the original sentencing hearing or in a prior appeal); see also Routenberg v. State, 802 So. 2d 361 (Fla. 2d DCA 2001)(holding that a claim that victim injury points for penetration were incorrectly assessed on scoresheet could be raised in a rule 3.800(a) motion even after violation of probation); and Wright v. State, 707 So. 2d 385 (Fla. 2d DCA 1998)(explaining defendant did not waive right to challenge scoresheet points for victim injury for penetration by not raising issue at original sentencing hearing). We certify conflict with Stubbs, Spell, and Bogan.

AFFIRMED; conflict certified.

WOLF AND KAHN, JJ., CONCUR.

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

Courtesy of David Edelstein

Leopole Julmice, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-2491.

District Court of Appeal of Florida, Third District.

Opinion filed June 24, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Jorge J. Perez, Judge, Lower Tribunal Nos. 04-12549, 04-24128, 04-24726.

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

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

Before COPE, RAMIREZ, and SUAREZ, JJ.

RAMIREZ, J.

Leopole Julmice appeals his conviction and sentences for four counts of attempted second-degree murder as lesser included offenses of the charged offenses. The sole issue on appeal is whether the trial judge erred in preventing defense counsel from striking a white male juror based on the court’s finding that the juror clearly indicated that he could be fair. Because the court engaged in the wrong analysis when confronted with the prosecution’s objection, we reverse.

I.

During the voir dire the trial judge had the following conversation with Juror Grant:

THE COURT: Mr. Grant, how are you, sir?

PROSPECTIVE JUROR GRANT: Good, your Honor.

THE COURT: You are actively duty in the military?

PROSPECTIVE JUROR GRANT: Yes.

THE COURT: U.S. Navy?

PROSPECTIVE JUROR GRANT: Yes.

THE COURT: You are on leave I imagine?

PROSPECTIVE JUROR GRANT: I am at United States southern command.

THE COURT: So, you are at Southern Command?

PROSPECTIVE JUROR GRANT: Yes.

THE COURT: That’s your post.

Let’s see, you are married?

PROSPECTIVE JUROR GRANT: Yes.

THE COURT: Your wife is a housewife?

PROSPECTIVE JUROR GRANT: Yes.

. . .

THE COURT: You never served as a juror before?

PROSPECTIVE JUROR GRANT: No.

THE COURT: And have you, or close friend, family member ever been victim of a crime?

PROSPECTIVE JUROR GRANT: Yes, your Honor.

THE COURT: What was that?

PROSPECTIVE JUROR GRANT: Vehicle broken into a couple of occasions.

THE COURT: That was here in Miami-Dade County?

PROSPECTIVE JUROR GRANT: Yes.

THE COURT: Did they ever catch the people responsible?

PROSPECTIVE JUROR GRANT: No, they did not.

THE COURT: You have been a witness in trial proceedings?

PROSPECTIVE JUROR GRANT: In the Navy, some Navy proceedings administrative discharge court-martial.

THE COURT: When was the last time you were a witness in the trial proceeding?

PROSPECTIVE JUROR GRANT: It’s been probably twelve, thirteen years.

THE COURT: Okay. You have friends or relatives who are attorneys?

PROSPECTIVE JUROR GRANT: Yes, your Honor.

THE COURT: What kind of attorneys?

PROSPECTIVE JUROR GRANT: Mostly civil.

THE COURT: And have you, or close friend, family member ever been arrested or accused of a crime?

PROSPECTIVE JUROR GRANT: No, your Honor.

THE COURT: Could you be fair and impartial in this case?

PROSPECTIVE JUROR GRANT: Yes, your Honor.

THE COURT: Thank you.

During the selection process defense counsel attempted to exercise a peremptory challenge on Juror Grant. The prosecution objected to the strike stating: “there is one white person on the panel, defense counsel struck every other white person thus far.” Defense counsel proffered the following race-neutral reasons for striking Juror Grant.

DEFENSE COUNSEL: Grant is a member of the arm forces. He’s a commander in Florida, upon questioning his response was he had been involved in the court-martial process. These individuals are removed from the military, and they are disciplinarians. His involvement in the military, his involvement with court-martial, his position in the commander in the military, we could exercise a peremptory challenge.

PROSECUTOR: I believe counsel specifically asked him about all those things, he said he would be fair.

DEFENSE COUNSEL: I have no question whether he can be fair. I need to have a reason which is valid for, in other words it’s improper, it’s not a white person on trial.

THE COURT: The Court would note Mr. Grant was extensively asked by the Court and by attorney for the State, and may be even defense, he said he could be fair. The fact he was involved in court-martial is not clear whether he could have been for the defense or for the prosecution that wasn’t brought out, but one thing the Court was very impressed with, he would be fair in that he could be impartial, In fact, the Court essentially rejects the fact his active duty would be a disqualification, and would find that it’s pretestrial [sic] under the circumstances, the Court finds he is a white male and will not accept the peremptory challenge as to Brian Grant.

DEFENSE COUNSEL: Is the Court making the finding it’s prestestrial [sic] reason, the fact the individual also been a victim of a crime, according to his own report in the jury questionnaire as to the car broken into.

THE COURT: It’s given the fact pattern of attempting to strike every white potential juror that’s been set forth.

DEFENSE COUNSEL: All the victims in this case are black police officers.

PROSECUTOR: That is not correct.

DEFENSE COUNSEL: Four of the five.

THE COURT: I already made my ruling.

DEFENSE COUNSEL: I am trying to make the record, four of the police officers that were black were victims in this case.

THE COURT: That is fine, anything further?

DEFENSE COUNSEL: No, Judge. It’s a peremptory challenge.

THE COURT: I understand. Okay. That brings us to James Collier.

At the conclusion of the voir dire defense counsel renewed his objection to the trial judge’s ruling denying him the right to use a peremptory challenge as to Juror Grant.

At the conclusion of the evidence and after defense counsel’s motion for judgment of acquittal was denied, defense counsel renewed his objection to the trial judge’s decision to deny him the right to exercise a peremptory challenge on Juror Grant. At that point, the state once again argued that the reason given was not a race-neutral reason and that defense counsel’s previous strikes had exhibited a pattern of striking white jurors. After hearing argument of counsel the court once again placed on the record that the reason why he was denying the strike was because there was no race-neutral reason given. This is evidenced by the following statement made by the trial judge:

The court will note in that matter, on one hand a pattern up to that point of seeking to strike a white male from the juror, that changed that course, but the Court found that was the case, and that there was no race-neutral reason given. In addition, the defense’s assertion given this juror’s service in the military was a commander in the United States Navy, posted at the southern command, he’s been involved in a court martial, the court finds that has no bearing, no relationship to this trial, and it’s not a valid basis. The court will renew that finding, that it was not a proper attempt and proper peremptory challenge.

After deliberations the jury found defendant guilty of four counts of attempted second degree murder, which were lesser included offenses of the charged offenses, and false imprisonment which was a lesser included offense of the kidnapping count. The jury found defendant not guilty of the burglary count. The court sentenced defendant to life imprisonment as to the attempted second degree murder counts and five years as to the false imprisonment count. All of the sentences were ordered to run consecutive with each other.

II.

Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996), the Supreme Court of Florida established the following analysis for determining the racial, ethnic, and/or gender neutrality and genuineness of a peremptory challenge:

[Step 1.] A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike.

[Step 2.] At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation.

[Step 3.] If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.

When defense counsel moved to exercise a peremptory challenge on Juror Grant, the state requested a race-neutral reason for the strike arguing that defense counsel had used his two previous peremptory challenges against white male jurors. These had involved a juror who was an attorney and had been a victim of a crime. The other juror was stricken because his daughter’s fiancé was a police officer. The trial court properly requested a valid race-neutral reason for the peremptory strike. It is undisputed that defense counsel proffered race-neutral reasons for the strike of Juror Grant. The court was then required to reach Step 3 and make a determination whether the explanation was pretextual.

The proper starting point in any analysis of Melbourne issues is the principle that on appeal, peremptory challenges are presumed to be exercised in a nondiscriminatory manner. See Porter v. State, 708 So. 2d 338 (Fla. 3d DCA 1998); Dean v. State, 703 So. 2d 1180 (Fla. 3d DCA 1997). Furthermore, throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination. Melbourne, 679 So. 2d at 764; Davis v. State, 691 So. 2d 1180 (Fla. 3d DCA 1997).

In Melbourne, the Florida Supreme Court stated that the trial court’s decision on the ultimate issue of pretext “turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.” Melbourne, 679 So. 2d at 764-65. However, the trial court in our case denied defense counsel the right to excuse Juror Grant because it concluded that he could be a fair juror, and therefore defense counsel’s reason for striking the juror was not race-neutral. The reasons given for exercising a peremptory challenge need not be equivalent to a challenge for cause. See Symonette v. State, 778 So. 2d 500, 503 (Fla. 3d DCA 2001)(“The fact that such a juror [peremptorily challenged] asserts that he or she can, nevertheless, be fair and impartial, does not mean that the state must be satisfied with the response.”); White v. State, 754 So. 2d 78, 80 (Fla. 3d DCA 2000).

The facts in this case are similar to the facts Greene v. State, 718 So. 2d 334 (Fla. 3d DCA 1998), where, pursuant to the state’s objection, defense counsel gave a race-neutral reason for striking the juror. The trial judge made the following ruling: “All right. The Court determines that the reasons given are not ethic [sic] neutral recognizable by the law as I understand it, and the Court is going to disallow the peremptory challenge and the juror will be seated.” Id. at 335. In reversing defendant’s conviction, this Court held that at no time did the trial judge address the genuineness of the reasons offered by defense counsel and, therefore, the court improperly discontinued the Melbourne analysis after the second step because she did not find the proffered reason to be ethnic-neutral. The court went on to explain:

A conclusion that the proffered reasons are not ethnic-neutral is not synonymous with a finding of pretext. The former requires only a superficial analysis to determine facial, ethnic neutrality, whereas the latter requires a judicial assessment of credibility of both the proffered reasons and the attorney or party proffering them. Likewise, the standard of review is different as to each. When reviewing a trial court’s determination that a proffered reason is not ethnic-neutral, this Court will simply review the facial neutrality of the reason. On the other hand, the trial court’s decision on the ultimate issue of pretext “turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.” Melbourne, 679 So.2d at 764.

Greene, 745 So. 2d at 335.

Similarly, in our case, counsel gave a race-neutral reason when he stated that the juror was a uniformed Navy officer and the alleged crime victims were uniformed police officers. Based on the incorrect premise that there was no race-neutral reason, the trial court also found pretext. However, the reason was race-neutral and the denial of the peremptory strike cannot be justified simply because the trial judge felt the juror could be fair.

In step (3) of the Melbourne procedure, the relevant circumstances that the court is to consider in determining whether the explanation is pretextual include such factors as the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged venireperson; or singling out the venireperson for special treatment. Melbourne, 679 So. 2d at 764 n.8; Young v. State, 744 So. 2d 1077 (Fla. 4th DCA 1999);Overstreet v. State, 712 So. 2d 1174 (Fla. 3d DCA 1998). We have not hesitated to reverse a trial court’s finding on the ultimate issue of pretext where the record does not support that finding. Fernandez v. State, 746 So. 2d 516 (Fla. 3d DCA 1999); Randall v. State, 718 So. 2d 230 (Fla. 3d DCA 1998); Overstreet, 712 So. 2d at 1174.

In the case of Hamdeh v. State, 762 So.2d 1030 (Fla. 3d DCA 2000), defense counsel was denied the right to exercise a peremptory challenge of a juror who had indicated that he had talked to people in the community about the case. After hearing the proffered reason given by defense counsel, the trial judge concluded that he did not feel the reason given by defense counsel was genuine. Similar to the court in this case, the trial judge pointed to nothing in the record which would have supported the conclusion that defense counsel’s reason for striking the juror was not genuine. In reversing defendant’s conviction, this Court held that since there was no record support for the trial court’s finding of pretext, it was error to deny defense counsel the right to strike the juror.

In this case there is nothing in this record to suggest that defense counsel’s reason for striking a uniformed Navy officer in a case with uniformed police officers as the alleged victims was not genuine. Because the court wrongfully concluded that defense counsel’s reason was not race-neutral, it never conducted a sufficient inquiry to determine the genuiness of the reason. We therefore reverse and remand for a new trial.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

SHOMBIE S. HARRIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-571.

District Court of Appeal of Florida, Second District, Lakeland.

Opinion filed June 19, 2009.

Appeal from the Circuit Court for Hillsborough County, Ronald N. Ficarrotta and Manuel Lopez, Judges.

Daniel L. Castillo, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

BY ORDER OF THE COURT:

Judge Khouzam has substituted for Judge Stringer on the panel in this proceeding for purposes of considering the post-opinion motions. She has viewed and listened to the recording of the oral argument conducted on December 2, 2008.

Appellee’s motion for rehearing en banc is denied. Appellee’s motion for rehearing and certification is denied. Judge Khouzam would grant rehearing.

On the court’s own motion, the opinion issued January 23, 2009, is withdrawn and the attached opinion is substituted therefore. No further motions will be entertained in this proceeding.

WHATLEY, Judge.

Harris appeals his judgments and sentences for possession of cocaine, possession of marijuana, and possession of paraphernalia, arguing that the trial court erred in denying his motion to suppress. We agree and reverse.

Harris was driving his pickup truck in a lawful manner. Two law enforcement officers were behind Harris in separate vehicles and both officers attempted to obtain the tag number from Harris’s vehicle. Their testimony, which is supported by the evidence, was that a trailer hitch partially blocked the tag and they could not read the letters on the tag from a distance of thirty to fifty feet. The officers stopped Harris’s vehicle based on the obscured tag. After the stop, the officers smelled an odor of fresh marijuana coming from inside the vehicle. Thereafter, marijuana was found in Harris’s pocket and cocaine was found in the glove box of the truck.

Harris asserts the trial court erred in denying his motion to suppress because he was improperly stopped for violating section 316.605, Florida Statutes (2006). The relevant portion of the statute reads as follows:

[A]ll letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

§ 316.605(1) (emphasis added).

The only language in the statute that would apply to the case at bar is the phrase, “other obscuring matter.” However, we conclude the doctrine of ejusdem generis causes this language to apply only to matter on the tag itself. Pursuant to the “`ejusdem generis’ canon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.” Black’s Law Dictionary 514 (6th ed. 1990). Here, a reading of the language in the statute shows that the license plate must be free from obscuring matter, be it grease, grime, or some other material placed over the plate. However, it would not include a trailer hitch that is properly attached to the truck’s bumper.

The dissent reads the “plainly visible” from 100 feet language as if such language was separate from “defacement, mutilation, grease, and other obscuring matter.” We believe that section 316.605(1), which is all one sentence and contains 196 words, is neither clear nor concise, and therefore, the doctrine of ejusdem generis is applicable. Further, the “plainly visible” language applies to license plates obstructed by defacement, mutilation, grease, or “other obscuring matter.” The sole issue is the meaning of “other obscuring matter.” This phrase, under the doctrine of ejusdem generis applies to obstructions “on” the tag such as grease, grime or rags.¹ Matters external to the tag, such as trailer hitches, bicycle racks, handicap chairs, u-hauls, and the like are not covered by the statute. If the legislature chooses to bring such items external to the license plate within the statute, simple and concise language can accomplish the task.

We are not unmindful that Florida now has a variety of different license plates of various colors and design. Some of these place letters in the middle of the tag, where the trailer hitch was located in this case, and some place a symbol, such as an orange, in the middle of the tag where a trailer hitch might not obscure letters or numerals.

Although there are no cases on point in Florida, State v. Ronau, 2002 WL 31743012 (Ohio Ct. App. 2002), the court held that the trial court did not err in finding that the stop of a truck was improperly based on the fact that the trailer hitch was blocking a portion of the license plate. We recognize that Ronau appears to be the minority position. See People v. White, 93 Cal. App. 4th 1022, 1026 (Cal. Ct. App. 2001) (holding that license plate that is partially obstructed from view by a trailer hitch violates law, which provides that plates must be maintained in a condition so as to be clearly legible, and such violation provided officer with a lawful basis to stop vehicle); State v. Hill, 34 P.3d 139, 147 (N.M. Ct. App. 2001) (where law required plate to be “maintained free from foreign material and in a condition to be clearly legible,” truck’s plate was in violation of law where truck’s trailer hitch obscured plate’s renewal sticker); State v. Smail, 2000 WL 1468543 (Ohio Ct. App. 2000)(concluding that pursuant to law, which provided that “license plates . . . shall not be covered by any material that obstructs their visibility,” the middle numbers of a license plate were not in “plain view” and stop of truck was lawful where license was obstructed by a ball hitch).

We conclude that Harris’s vehicle was improperly stopped pursuant to section 316.605. Accordingly, we reverse Harris’s judgments and sentences.

Reversed and remanded.

WILLIAMS, CHARLES E., ASSOCIATE JUDGE, Concurs.

—————

Notes:

1. It is clear the rag Wright v. State, 471 So. 2d 155 (Fla. 3d DCA 1985), was in contact with the vehicle’s license plate.

—————

KHOUZAM, J., dissents with opinion.

I respectfully dissent. The majority relies on the phrase “other obscuring matter” as the only language in the statute that would apply to the obstruction of the alphanumeric designation of the tag in this case. I do not read the statute to be limited to matter on the tag itself. In my view, the construction of the statute in the majority opinion disregards other critical terms and phrases contained in the statute as emphasized below:

[A]ll letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

§ 316.605(1) (emphasis added).

Based on a plain reading of the statute, I read the foregoing to require the alphanumeric designation on the plates to be plainly visible and legible at all times 100 feet from the rear or the front of the vehicle. This would include obstructions caused by items placed in front of license tags, such as trailer hitches.

If a statute is unambiguous, we do not resort to statutory construction. See State v. Hobbs, 974 So. 2d 1119, 1122 (Fla. 5th DCA 2008) (opining that for purposes of statutory interpretation, the maxim ejusdem generis should only come into play when it is necessary to construe an ambiguous statute, not to create an ambiguity in a clearly worded statute). Further, it is inappropriate to use the maxim ejusdem generis “if, as a result, the court fails to give meaning to all of the words used by the legislature.” Id. at 1121. The interpretation of section 316.605 set forth in the majority opinion now before us for rehearing disregards the terms “clear” and “distinct” and the phrase “so that they will be plainly visible and legible at all times 100 feet from the rear or front.” In my view, there is no need to apply the maxim ejusdem generis to interpret this unambiguous statutory provision.

“A statute should not be construed to bring about an unreasonable or absurd result, but rather to effectuate the obvious purpose and objective of the legislature. The law favors a rational and sensible construction of statutes so as to avoid an unreasonable or absurd result.” George v. State, 203 So. 2d 173, 175-76 (Fla. 2d DCA 1967) (citations omitted). It would be unreasonable to read section 316.605(1) as meaning that a plate is visible if it cannot be read by an officer following safely in his or her patrol car.

To follow the reasoning in the majority opinion, items displayed in front of the license tag that obscure the plate would not be in violation of the statute and would not provide law enforcement with a lawful basis to stop the vehicle, so long as the items are not affixed to the tag itself. This is neither a plain nor reasonable interpretation of the statute.

Law enforcement officers should not be precluded from stopping a vehicle when they are unable to read a license plate because such a restriction would hinder them in fulfilling their duties to carry out the significant state interest of protecting citizens. I find Wright v. State, 471 So. 2d 155 (Fla. 3d DCA 1985), instructive. InWright, an officer noticed that the license plate on the rear of a parked vehicle was partially obscured by a dirty rag. Id. at 156. The officer approached and asked the defendant to exit the vehicle. Id. at 157. The court found that the officer had the authority, even the duty, to investigate why the license tag was obscured in violation of the motor vehicle statute. Id. Like the rag in Wright, the trailer hitch here obscured the critical alphanumeric designation of the tag.² In fact, in this case the officers testified they were in separate vehicles travelling together, parallel to each other, when they first saw Harris’s truck. Both officers testified that they attempted to determine the tag number from the rear and were unable to do so because the tag was obscured by a trailer hitch. As in Wright, I would find that the officers had the authority to investigate why Harris’s tag was obscured.

In light of the foregoing, I would affirm the trial court’s denial of the motion to suppress. The trial court correctly applied the plain language of the statute and properly determined that Harris was in violation of the statute because the license plate was partially obscured by a trailer hitch and was not plainly visible at distances well under 100 feet.

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

—————

Notes:

2. It appears that the rag in Wright was not affixed to the face of the license plate. The defendant told the officer that the rag was being used because the gas tank leaked, and that the rag must have blown over the license plate. 471 So. 2d at 157. The defendant lifted the license plate and the officer observed that the gas tank had a regular cap in place. Id.

—————

Courtesy of David Edelstein

RICHARD SPIVEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-2638.

District Court of Appeal of Florida, Fifth District.

Opinion filed June 19, 2009.

Appeal from the Circuit Court for Orange County, Lawrence Kirkwood, Judge.

James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Richard Spivey was involuntarily committed under the Jimmy Ryce Act in 2006, after his release from prison on a charge of lewd and lascivious exhibition in the presence of a person under age sixteen. In 2008, Spivey petitioned for release pursuant to section 394.920, Florida Statutes, based on a doctor’s report concluding that “it is safe for [Spivey] to be at large and that he will not engage in acts of sexual violence if released.” Undergirding this opinion is the examiner’s conclusion that Spivey’s diagnosed behavior — exhibitionism — is not sexually violent conduct.

At the probable cause hearing, the trial court reviewed the report and denied the petition, finding that Spivey had not met his burden of establishing probable cause. On appeal, Spivey argues that the trial court erred in ruling that he had not established probable cause to believe that he would no longer engage in sexual violence upon release, making it safe for him to live at large. The State first argues that the report was not “evidence” that could be considered in making the probable cause determination. Alternatively, the State argues that the report did not support a probable cause finding. We agree with the trial court’s conclusion that Spivey did not meet his burden of establishing probable cause, and affirm.

Background and Facts

In February 2008, the Florida Civil Commitment Center (“FCCC”) issued its second annual review of Richard Spivey, recommending that he continue treatment at FCCC because he had “yet to fully address relevant treatment issues… that may be associated with his offending history.”

In May 2008, Spivey petitioned for release pursuant to section 394.920, Florida Statutes (2008), alleging in part the following:

Committed Person was evaluated by Dr. Dean Cauley, and he opined that he no longer has a mental condition that causes him to engage in acts of sexual violence. Thus, because Committed Person’s condition has so changed, Dr. Cauley concluded that it is now safe for him to be released to the community. See verified evaluation report submitted by Dr. Cauley….” Contrary to Spivey’s assertion, Dr. Cauley’s report was not made under oath or otherwise “verified.” In the report, Dr. Cauley was critical of the FCCC’s diagnosis and treatment. Although he noted that Spivey had been committed as a sexual predator, Dr. Cauley took issue with that conclusion. In Dr. Cauley’s view, Spivey was neither sexually violent nor attracted to children; he merely liked to expose himself.

At the probable cause hearing, the State made no objection to the trial court relying on Cauley’s report to make its probable cause determination.

Discussion

Two of the procedural safeguards provided by the Jimmy Ryce Act are section 394.918′s procedure for annual review and section 394.920′s right to petition for release. Larimore v. State, 2 So. 3d 101, 116 (Fla. 2008). Section 394.920 states,

Petition for release.—A person is not prohibited from filing a petition for discharge at any time after commitment under this part. However, if the person has previously filed such a petition without the approval of the secretary or the secretary’s designee and the court determined that the petition was without merit, a subsequent petition shall be denied unless the petition contains facts upon which a court could find that the person’s condition has so changed that a probable cause hearing is warranted.

The trial court correctly concluded that in the absence of any authority explaining the procedure under section 394.920, it would follow the procedure outlined in section 394.918, which states in pertinent part:

Examinations; notice; court hearings for release of committed persons; burden of proof.—

1) A person committed under this part shall have an examination of his or her mental condition once every year or more frequently at the court’s discretion. The person may retain or, if the person is indigent and so requests, the court may appoint, a qualified professional to examine the person. Such a professional shall have access to all records concerning the person. The results of the examination shall be provided to the court that committed the person under this part. Upon receipt of the report, the court shall conduct a review of the person’s status.

* * *

(3) The court shall hold a limited hearing to determine whether there is probable cause to believe that the person’s condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing, but the person is not entitled to be present. If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue.

(4) At the trial before the court, the person is entitled to be present and is entitled to the benefit of all constitutional protections afforded the person at the initial trial, except for the right to a jury. The state attorney shall represent the state and has the right to have the person examined by professionals chosen by the state. At the hearing, the state bears the burden of proving, by clear and convincing evidence, that the person’s mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence.

(Emphasis added). A petitioner must meet his or her burden of establishing probable cause under section 394.918 by presenting evidence in the form of testimony or affidavits. E.g., Allen v. State, 927 So. 2d 1070, 1074 (Fla. 2d DCA 2006); Westerheide v. State, 888 So. 2d 702, 706 (Fla. 5th DCA 2004). Although Spivey’s petition alleged that Dr. Cauley’s report was “verified,” it was not, and thus did not constitute sworn evidence. However, by failing to lodge a proper evidentiary objection below, the State clearly waived this issue. See, e.g., Murphy v. State, 667 So. 2d 375, 376 (Fla. 1st DCA 1995) (recognizing challenges to unverified or unsworn testimony are waived unless made contemporaneously).

Considering the substance of the report, Dr. Cauley’s conclusion that Spivey would not engage in sexual violence if released was based on his opinion that Spivey had never engaged in sexual violence. Central to his opinion was his erroneous legal conclusion that Spivey’s diagnosed behavior — exhibitionism — is not sexually violent. He stated, in pertinent part:

Mr. Spivey does not suffer from Paraphilia NOS — non consent or from Pedophilia or any condition other than Exhibitionism. Although he has been committed as a sexual predator…. Mr. Spivey is not sexually attracted towards rape; in fact he has never committed a rape. His is not sexually attracted towards children. He is sexually aroused by exposing himself to unsuspecting strangers. Indecent exposure is not rape or pedophilia. The facility seems to believe that the target of the offense determines the disorder; however the truth is that the arousal itself defines the disorder…. His effort was not to isolate and violently assault the victim; it was to expose himself to the victim. Typically, such non-contact nuisance crimes do not reach the threshold of indefinite civil detention.

Clearly, Dr. Cauley equated sexually violent behavior with crimes involving violent contact with a victim or sexual attraction to children. Thus, he expressly excluded exhibitionism, even if it was done in the presence of a child, because in his opinion, the child was not the target. While Dr. Cauley’s opinion may or may not be clinically correct, it is legally flawed. In the Jimmy Ryce Act, the Legislature defined a “sexually violent offense” as including a “lewd, lascivious or indecent assault or act upon or in the presence of a child in violation of s. 800.04 or s. 847.0135(5).” § 394.912(9)(e), Fla. Stat. (2008). And, section 800.04(7), Florida Statutes, expressly criminalizes lewd exhibition in the presence of a child under sixteen.

In short, Dr. Cauley’s conclusion that Spivey was not likely to engage in acts of sexual violence was legally insufficient because it expressly excluded lewd exhibition in the presence of children, which was the offense for which Spivey was most recently imprisoned. Dr. Cauley never stated that Spivey was not likely to re-offend by engaging in exhibitionism with child victims if released into the community. Accordingly, we find that the report was insufficient to establish probable cause.

AFFIRMED.

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

Courtesy of David Edelstein

STATE OF FLORIDA, Appellant,
v.
BRADLEY JAMES VANDERHOFF, Appellee.

Case No. 5D08-2507.

District Court of Appeal of Florida, Fifth District.

Opinion filed June 19, 2009.

Appeal from the Circuit Court for Marion County, Hale R. Stancil, Judge.

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

James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellee.

ORFINGER, J.

The State appeals the sentence imposed on Bradley James Vanderhoff after he entered an open no contest plea to three counts of attempted murder of a law enforcement officer. The State argues that the trial court erred by imposing downward departure sentences and by failing to apply the twenty-year minimum mandatory prison sentence required by the 10/20/Life statute, section 775.087(2), Florida Statutes (2005). We reverse, as we conclude the trial court was without authority to waive the twenty-year minimum mandatory sentence mandated by statute.

The information, charging Vanderhoff with three counts of attempted first-degree murder of a law enforcement officer, alleged that he possessed and discharged a firearm in the course of committing the crimes. As a result, the twenty-year minimum mandatory provision of section 775.087(2) was implicated. Immediately prior to jury selection, Vanderhoff entered an open plea to the court after there was a discussion concerning the potential sentences he faced if convicted:

THE COURT: If he is convicted or [sic] charged, he is facing 10/20/Life, he is facing life in prison; right? Minimum of 10; isn’t that right, [State]?

THE STATE: Sir?

THE COURT: There is a minimum of 10?

DEFENSE COUNSEL: A minimum of 20, Your Honor, because there is a [firearm] discharge.

THE STATE: 20, Judge. And that’s — on the score sheet, he has no priors, Judge. By the score sheet, it’s 117. But that doesn’t take into account 10/20/Life. No prior criminal history, Judge.

THE COURT: He has what?

THE STATE: He has no prior criminal history, Judge.

THE COURT: But you can’t use an isolated incident like this to go below the guidelines; right?

THE STATE: Actually, you can, Judge. If it’s — Judge, if [Defense counsel] showed you it was an isolated incident, that it was unsophisticated in its execution, and he had remorse, you could deviate, and you could go below.

THE COURT: Anyway, Y’all want to go to trial, I guess; don’t you? THE STATE: Judge, let me tell you this; From where I’m sitting, I know it’s isolated. I know it’s unsophisticated. The only thing that I think [Defense counsel] would have to prove to you is remorse, and I’ll just leave it at that.

….

DEFENSE COUNSEL:… I think Mr. Vanderhoff is in a position now with the understanding, with some of our offrecord discussions, that he may be prepared to tender a plea this afternoon with the understanding by all the parties, Judge that you will not impose a sentence at this point. We will order a presentence investigation. We would schedule a sentencing at a later date when the Court has the ability to certainly review what the Probation and Parole Department finds and recommends. And we would be able to subpoena what witnesses we need for the board at that sentencing hearing, as well. And allow the State to do the same on their behalf, if that’s what they want to do.

Is that right, Mr. Vanderhoff?

THE DEFENDANT: Yes, Sir.

DEFENSE COUNSEL: Is that what you want to do here this afternoon, sir?

THE DEFENDANT: I want to be home with my kids. I want to be able to raise my kids.

DEFENSE COUNSEL: Let me first preface this by saying this: There are no agreements as to what any type of sentence this Court might impose. You understand that?

THE DEFENDANT: Yes, sir.

DEFENSE COUNSEL: The Court will rely on the presentence investigation report that’s ordered, that’s done by the Department of Probation and Parole, and you, in fact, assist in getting that done through Probation. And the Court will take into consideration any other evidence or witnesses that we want to present on your behalf prior to the Court sentencing you. Do you understand that?

THE DEFENDANT: Yes.

DEFENSE COUNSEL: You understand that this Court has the authority and power to sentence you how it sees fit. If there are mitigating circumstances that the Court finds, he may sentence you [sic] or he may sentence you up to life in prison. You understand that, as well?

THE DEFENDANT: Yes.

DEFENSE COUNSEL: And that pretty much goes from (sic) anything in between. Now you score, as the State’s indicated, a minimum of 117 months in the Department of Corrections. There is a mandatory sentence of 20 years that applies to each one of those counts. Do you understand that?

THE DEFENDANT: Yes.

DEFENSE COUNSEL: And we have talked about presenting some mitigating circumstances to the Court. The court may find those mitigating circumstances. They may find that there are no mitigating circumstances to sentence you, other than pursuant to the guidelines and/or the statutes that deal with the 10/20/Life minimum mandatory.

THE DEFENDANT: Right.

DEFENSE COUNSEL: Is that your desire? Do you want to tender a plea open to the Court at this time:

THE DEFENDANT: I’m scared to death, but yes.

….

THE COURT:… We have also — the way the charges are, it’s a 10/20/Life, and the State, I believe, concedes there are two mitigating factors, lack of criminal history—

DEFENSE COUNSEL: Well, Judge, I don’t want to speak for them, but what they indicate —

THE STATE: I’ll say it. One of the ways you can do a downward departure is if you find three things: Isolated incident, it was unsophisticated in its execution, and he shows remorse. I can tell you it is isolated. No criminal history. Nothing like this in his past. And he had no plan. It was unsophisticated. What was he going to do naked after taking a shot? He wasn’t going anywhere.

THE COURT: Anyway, I guess those are three factors, and that will be addressed later on.

….

THE COURT: Okay. Has anyone led you to believe that I or the sentencing judge is going to do — impose any particular sentence?

THE DEFENDANT: No, sir.

THE COURT: I mean, it could range from probation to community control up to life imprisonment, basically.

THE DEFENDANT: I understand, sir.

THE COURT: And you believe this to be in your best interest under the circumstances?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. All right. Sir, your plea is accepted….

(Emphasis added).

Despite the State’s earlier advice to the contrary, at the sentencing hearing held several weeks later, the State informed the trial court that it was required to impose the twenty-year minimum mandatory sentence mandated by section 775.087(2). Notwithstanding the statute, the trial court sentenced Vanderhoff to twelve years of probation, explaining:

THE COURT:… All right. You know this is a very difficult case. And it’s troubling because of the seriousness of the charges. But we do have a better understanding I think now what — what happened and some of the reasons perhaps why it happened. Mental health issues obviously come to, you know, come into play. Fortunately, no one was seriously injured.

You were able to remain on bond apparently since this incident without violating any condition of your bond, which is important to the Court. But, also, it’s quite frankly, I mean, to be honest with you, I think it’s in your favor because I think if you were still incarcerated, I mean, that would — probably the Court probably would feel a little different, too. I mean, you do score — you could go to prison for life on this. There are some reasons the Court finds to depart from the guidelines. And it says the offense was committed in an unsophisticated manner, and was an isolated incident for which the defendant has shown remorse. That’s one of the statutory reasons. Also, it does speak of mental disorder but — amenable treatment and physical — some problems to some extent. I’m giving some weight to that also.

….

And then if you violate it, you are going to end up in prison more than likely. You are still facing a prison sentence of up to 10/20/Life sentence.

(Emphasis added). The State again objected to the trial court’s failure to impose the twenty-year minimum mandatory sentence required by section 775.087, Florida Statutes, and this appeal followed.

Because Vanderhoff discharged a firearm in the commission of the attempted murders, section 775.087(2)(a)2., Florida Statutes (2005), required the trial court to impose a twenty-year mandatory minimum sentence on each count. Arutyunyan v. State, 863 So. 2d 410, 412 (Fla. 4th DCA 2003); see § 775.087(2)(c), Fla. Stat. (2005) (“If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed….”); § 775.087(2)(d), Fla. Stat. (2005) (“It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms… be punished to the fullest extent of the law….);see generally State v. Calzada-Padron, 708 So. 2d 287, 287 (Fla. 2d DCA 1996) (recognizing that section 775.087 contains no provision permitting trial court to exercise discretion in imposing three-year minimum mandatory prison sentence once defendant has been convicted of certain enumerated felonies).

The 10/20/Life statute, section 775.087(2), Florida Statutes (2005), removed most sentencing discretion from the judicial branch, and instead, placed it in the executive branch by establishing a mandatory minimum sentencing scheme. See Green v. State, 792 So. 2d 643 (Fla. 1st DCA 2001); see also § 775.087(2), Fla. Stat. (2005); § 27.366(1), Fla. Stat. (2005). The discussion that occurred between the State, defense counsel and the trial court prior to Vanderhoff’s plea, makes it clear that the parties incorrectly assumed that a mitigating factor that would justify a downward departure under the Criminal Punishment Code, could also allow the trial court to waive a minimum mandatory sentence.¹ This is error, as only the State Attorney has the discretion to waive the minimum mandatory sentence implicated here. See §§ 27.366, 775.087(5), Fla. Stat. (2005). While the State certainly contributed to the confusion that preceded the entry of Vanderhoff’s plea, we cannot say it intentionally waived the minimum mandatory sentence. Further, the State corrected its earlier misadvice to the court prior to sentencing. At that point, Vanderhoff should have been permitted to withdraw his plea, either on his defense counsel’s motion or the court’s own initiative.

Florida Rule of Criminal Procedure 3.172(c)(1) requires the trial judge to determine that a defendant understands the reasonable consequences of the plea, including “the maximum possible penalty, and any mandatory minimum penalty provided by law….” See Ashley v. State, 614 So. 2d 486, 488 (Fla. 1993). The trial court clearly misinformed Vanderhoff, in part due to the State’s and defense counsel’s advice, that it could depart from the 10/20/Life statute and sentence him from “probation to community control up to life imprisonment.” Consequently, Vanderhoff should be allowed to withdraw his plea. See, e.g., Boles v. State, 827 So. 2d 1073, 1074 (Fla. 5th DCA 2002) (observing that generally, when defendant is incorrectly advised of maximum sentence, he should be allowed to withdraw plea);Mantle v. State, 592 So. 2d 1190, 1193 (Fla. 5th DCA 1992) (explaining that if record reveals reasonable basis to conclude defendant was misled by statement at plea hearing made by judge or by one or both attorneys, he should be permitted to withdraw plea); see also Fernandez v. State, 782 So. 2d 944 (Fla. 4th DCA 2001)(vacating defendant’s convictions and sentences where record revealed defendant was misled by judge that he was facing 40 years as habitual offender when actually facing no more than 30 years when he pled no contest).

We reverse the sentences imposed and remand this matter for further proceedings consistent with this opinion.

REVERSED and REMANDED.

PALMER, C.J. and LAWSON, J., concur.

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Notes:

1. Because we conclude that the trial court’s failure to impose the minimum mandatory sentence required by section 775.087(3) is dispositive, we do not consider the downward departure from the sentencing guidelines.

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Courtesy of David Edelstein