Florida Criminal Law Opinions

WILLIS FOSTER, DOC No. 389641, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-1716.

District Court of Appeal of Florida, Second District.

Opinion filed June 19, 2009.

Appeal from the Circuit Court for Collier County, Franklin G. Baker, Judge.

James Marion Moorman, Public Defender, and Robert Augustus Harper, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Willis Foster appeals his convictions for aggravated battery with a deadly weapon causing harm, attempted second-degree murder with a firearm, and possession of cocaine. He asserts that reversible error occurred in regard to the manner in which the trial court instructed the jury on a note submitted to the court by the jurors during deliberations. Because any error in this regard was harmless, we affirm.

During deliberations, the jury sent a note to the trial court. In turn, the trial court discussed the handling of the note with the prosecutor, defense counsel, and Foster. After this discussion, the trial court instructed the jury in the deliberation room rather than in open court. Although the prosecutor and defense counsel were present in the deliberation room when the jury was instructed, Foster was not present. Instructing the jury in this manner was fraught with peril. Issues that arise from utilizing such a procedure can be avoided by returning the jury to the courtroom and instructing the jury in the presence of the prosecutor, defense counsel, and the defendant. Nonetheless, in this case any error that resulted was harmless. See, e.g., Meek v. State, 487 So. 2d 1058 (Fla. 1986).

Affirmed.

ALTENBERND and CASANUEVA, JJ., Concur.

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

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T.A., a child, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2971.

District Court of Appeal of Florida, Fourth District.

June 17, 2009.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County, Gary L. Sweet, Judge, L.T. Case No. 432007CJ000754A.

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

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

Per Curiam.

Appellant was charged with grand theft and petit theft after a teacher at a day care center discovered that $593 was stolen from her purse located in a closet of her classroom. We affirm the juvenile court’s finding that appellant committed grand theft. We reverse, however, the court’s denial of appellant’s motion for judgment of dismissal as to the charge of petit theft. The finding of guilt on this charge, which resulted from appellant’s rummaging through the closet of another teacher, was not supported by competent substantial evidence. We therefore remand this cause to the juvenile court with instructions to dismiss the petit theft charge.

Affirmed in part; Reversed in part.

TAYLOR, MAY and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Lazaro Ivan Ponce-Lopez, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-1764.

District Court of Appeal of Florida, Third District.

Opinion filed June 17, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Israel Reyes, Judge, Lower Tribunal No. 06-33624.

Samek and Besser and Lawrence E. Besser, for appellant.

Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.

Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.

COPE, J.

This is an appeal of a conviction for the offense of trafficking in cannabis. Lazaro Ivan Ponce-Lopez entered a guilty plea, reserving the right to appeal the denial of his motion to suppress evidence.

The Miami-Dade County Police Department received an anonymous tip that marijuana was being grown in the residence of defendant-appellant Ponce-Lopez. Detectives went to the residence and observed an abandoned car in the driveway. One detective saw windows with the blinds closed and heard an air conditioner unit that was continuously running without cycling off.

The detectives went up the sidewalk to the front door with a drug detection dog. The dog did not alert. The detectives and the dog began to walk back down the sidewalk toward the street. They passed near the garage door. The dog alerted, pulling the detectives from the sidewalk toward the garage door. At the garage door, the dog alerted to contraband. At that point, one of the detectives could smell the odor of live marijuana plants coming from the garage. A search warrant was obtained and the officers found marijuana and equipment for the growing of marijuana.

We affirm the denial of the motion to suppress evidence on authority of State v. Jardines, 33 Fla. L. Weekly D2455 (Fla. 3d DCA Oct. 22, 2008), jurisdiction accepted, 3 So. 3d 1246 (Fla. 2009).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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STATE OF FLORIDA, Appellant,
v.
WILLIAM ANDERSON, JR., Appellee.

No. 4D08-1422.

District Court of Appeal of Florida, Fourth District.

June 17, 2009

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Sandra K. McSorley, Judge, L.T. Case No. 2007-CF007514AXX.

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

Thomas Montgomery of Thomas Montgomery, P.A., Belle Glade, for appellee.

PER CURIAM.

The state appeals from a final order granting William Anderson, Jr.’s, motion for discharge based upon a speedy trial violation. Because Anderson never filed the requisite “Notice of Expiration of Speedy Trial Time” as the applicable rule specifically requires, we reverse.

The state filed a three-count Information against Anderson charging him with possession of cocaine, possession of marijuana, and reckless driving.

Rule 3.191(a), Fla. R. Crim. P., provides that “[e]very person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony.” Anderson’s speedy trial period expired on November 14, 2007.

On November 21, 2007, Anderson filed a motion for discharge. In a hearing on March 19 and 20, 2008, the state acknowledged that it received the motion for discharge but argued that such a motion was insufficient because it was not preceded by a “Notice of Expiration of Speedy Trial Time” which would have triggered a fifteen day recapture period as provided in rule 3.191(p). That rule provides:

Remedy for Failure to Try Defendant within the Specified Time.

* * * (2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.

(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

The trial court granted Anderson’s motion for discharge holding that the state’s argument was “no more than form over substance.” The state now appeals. We reverse based on State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003), in which this court explained that strict compliance with the rule is not optional:

[A] notice, not a motion, is required to trigger the expiration of recapture period. *** Because the trial court is responsible for setting an immediate hearing, the notice must be brought to the court’s attention. When the notice is styled as a motion for discharge, a clerk accepting it for filing may not distinguish it from the myriad of motions filed in the clerk’s office. We cannot expect the non-lawyer personnel of the clerk’s office to pour over motions to determine whether they seek a speedy trial discharge, requiring the court’s immediate attention. Moreover, the state attorney’s office may not treat a motion for discharge with the same urgency as a notice. Strict compliance with the rule is a practical necessity.

Id. at 438-39.

As we stated in Demars, the rule is specific and easy to follow. We therefore reverse the order of discharge and remand for further proceedings. We acknowledge that the First District has reached a contrary result Quallo v. State, 856 So. 2d 1100 (Fla. 1st DCA 2003), and certify conflict.

Reversed and remanded; conflict certified.

GROSS, C.J., WARNER and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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STATE OF FLORIDA, Appellant,
v.
WILLIAM ANDERSON, JR., Appellee.

No. 4D08-1422.

District Court of Appeal of Florida, Fourth District.

June 17, 2009

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Sandra K. McSorley, Judge, L.T. Case No. 2007-CF007514AXX.

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

Thomas Montgomery of Thomas Montgomery, P.A., Belle Glade, for appellee.

PER CURIAM.

The state appeals from a final order granting William Anderson, Jr.’s, motion for discharge based upon a speedy trial violation. Because Anderson never filed the requisite “Notice of Expiration of Speedy Trial Time” as the applicable rule specifically requires, we reverse.

The state filed a three-count Information against Anderson charging him with possession of cocaine, possession of marijuana, and reckless driving.

Rule 3.191(a), Fla. R. Crim. P., provides that “[e]very person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony.” Anderson’s speedy trial period expired on November 14, 2007.

On November 21, 2007, Anderson filed a motion for discharge. In a hearing on March 19 and 20, 2008, the state acknowledged that it received the motion for discharge but argued that such a motion was insufficient because it was not preceded by a “Notice of Expiration of Speedy Trial Time” which would have triggered a fifteen day recapture period as provided in rule 3.191(p). That rule provides:

Remedy for Failure to Try Defendant within the Specified Time.

* * * (2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.

(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

The trial court granted Anderson’s motion for discharge holding that the state’s argument was “no more than form over substance.” The state now appeals. We reverse based on State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003), in which this court explained that strict compliance with the rule is not optional:

[A] notice, not a motion, is required to trigger the expiration of recapture period. *** Because the trial court is responsible for setting an immediate hearing, the notice must be brought to the court’s attention. When the notice is styled as a motion for discharge, a clerk accepting it for filing may not distinguish it from the myriad of motions filed in the clerk’s office. We cannot expect the non-lawyer personnel of the clerk’s office to pour over motions to determine whether they seek a speedy trial discharge, requiring the court’s immediate attention. Moreover, the state attorney’s office may not treat a motion for discharge with the same urgency as a notice. Strict compliance with the rule is a practical necessity.

Id. at 438-39.

As we stated in Demars, the rule is specific and easy to follow. We therefore reverse the order of discharge and remand for further proceedings. We acknowledge that the First District has reached a contrary result Quallo v. State, 856 So. 2d 1100 (Fla. 1st DCA 2003), and certify conflict.

Reversed and remanded; conflict certified.

GROSS, C.J., WARNER and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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STATE OF FLORIDA, Appellant,
v.
JAMES DAVIS, Appellee.

No. 4D08-1216

District Court of Appeal of Florida, Fourth District

June 17, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michael G. Kaplan, Judge, L.T. Case No. 07-11973 CF10A.

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

Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.

STEVENSON, J.

This is an appeal by the State of an order dismissing a felony DUI charge against defendant James Davis. The dismissal was entered as a sanction for the State’s loss of the video recording of Davis’s performance of roadside sobriety tests. Finding that dismissal was too harsh under the circumstances present here, we reverse and remand for further proceedings.

The defendant was stopped at a DUI checkpoint in Pembroke Pines. The probable cause affidavit reflects that Officer Charles Herring of the Pembroke Pines Police Department observed the following: the smell of alcohol on the defendant’s breath; the defendant’s eyes were bloodshot and his face flushed; the defendant’s speech was slurred and his movements slow and deliberate; and the defendant had difficulty retrieving his wallet. The probable cause affidavit also indicates that the defendant admitted to consuming two beers and that he was taking oxycodone. As a result, Officer Herring asked the defendant to perform roadside sobriety tests. These roadside sobriety tests were recorded by the digital video camera in the officer’s car. The defendant refused to submit to a breathalyzer.

When the State failed to provide the defense with a copy of the video recording of the roadside sobriety tests, the defendant filed a motion to compel its production, which was granted. When the State still failed to provide the defense with a copy of the video, the defendant filed a motion seeking dismissal of the felony DUI. At a subsequent evidentiary hearing on the motion, the officer testified that the defendant’s roadside sobriety test had accurately been recorded to the system’s hard drive, but that for reasons he could not explain, the recording was lost during the transfer of the recording from the hard drive to a DVD. The officer insisted that he had viewed the recording during his attempt to transfer it to the DVD, it was consistent with his testimony and it demonstrated that the defendant was impaired. The defendant took the position that the recording would have impeached the officer’s testimony that he was impaired and would have been helpful to the defendant. With this evidence before it, the trial court concluded that, while there was no bad faith on the part of the police surrounding the loss of the recording, due process concerns required the dismissal of the felony DUI charge as the defendant was prejudiced by the loss of the evidence “since there exists no comparable evidence.”

Where lost or unpreserved evidence is “material exculpatory evidence,” the loss of such evidence is a violation of the defendant’s due process rights and the good or bad faith of the State is irrelevant. State v. Muro, 909 So. 2d 448, 452 (Fla. 4th DCA 2005); Kelley v. State, 486 So. 2d 578, 581 (Fla. 1986) (“‘[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.’” (quotingBrady v. Maryland, 373 U.S. 83, 87 (1963))). Lost or unpreserved evidence is “material” in this sense “if the omitted evidence creates a reasonable doubt that did not otherwise exist.” State v. Sobel, 363 So. 2d 324, 327 (Fla. 1978) (citing United States v. Agurs, 427 U.S. 97, 109 (1976)).

In the instant case, we find no error in the trial court’s conclusion that the lost video of the defendant’s roadside sobriety tests was “material” and that the defendant was prejudiced by the tape’s loss. The defendant refused to take a breathalyzer and, consequently, whether he was driving while under the influence must be determined by resort to whether he demonstrated physical signs of impairment. An evaluation of an individual’s impairment is necessarily somewhat subjective and the tape would have provided a jury with the opportunity to assess for itself whether the defendant was impaired. The significance of a tape of a DUI stop vis-a-vis the testimony of the officer and the defendant was addressed by the Oregon appellate court State v. Zinsli, 966 P.2d 1200 (Or. Ct. App. 1998):

In general, the prosecution of a DUII [driving under the influence of intoxicants] case depends heavily on the opinion of the arresting officer in determining whether a defendant’s “mental or physical faculties were adversely affected . . . to a noticeable or perceptible degree.” State v. Gaylor, 19 Or. App. 154, 163-64, 527 P.2d 4 (1974). Here, in the absence of the videotape, a jury would have only . . . [the arresting officer's] interpretation of defendant’s performance of the FSTs [field sobriety tests], demeanor, appearance and speech patterns, which, as noted, were to some extent not noticeably affected by alcohol. Of course, defendant may, but does not have to, offer his own version of the events to rebut [the arresting officer's] conclusions and the Intoxilyzer results. However, defendant’s testimony is not an acceptable substitute, because defendant’s testimony carries the risk that the jury will view that testimony as extraordinarily selfserving, whereas that risk is not present in the videotape evidence. Accordingly, the videotape evidence is unique because it would provide defendant with an objective video replay of the events from which a jury could draw its own conclusions.

Id. at 1205 (emphasis omitted).

This, then, brings us to the sanction imposed—dismissal. The State’s loss of material exculpatory evidence need not always result in dismissal of the criminal charge. Lancaster v. State, 457 So. 2d 506 (Fla. 4th DCA 1984) (holding defendant’s due process rights were violated by loss of burned vehicle underlying an arson charge, reversing conviction, and remanding with instructions that defendant be retried, but that, at retrial, State was barred from calling as witnesses the experts who had examined the truck); State v. Herrera, 365 So. 2d 399, 401 (Fla. 3d DCA 1978) (noting that “state’s intentional or negligent suppression of material evidence favorable to the defendant . . . constitutes a denial of due process” and “may call for a new trial, the exclusion of certain of the state’s evidence at trial, or the dismissal of the prosecution against the defendant”). And, while it is true that a trial court’s choice of sanction is to be reviewed on appeal for an abuse of discretion, dismissal of a charge is “an extreme sanction that should be used with caution” and should be limited to “cases where no other sanction can remedy the prejudice to the defendant,” State v. Carpenter, 899 So. 2d 1176, 1182 (Fla. 3d DCA 2005). That is not the case here and, consequently, we hold that dismissal of the charge was too harsh a sanction.

In so holding, we are aware of the decision State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990). There, the police had failed to record the defendants’ field sobriety tests. The defendants claimed that the failure to record the sobriety tests required dismissal of the DUI charges as the police should have recorded the sobriety tests and their failure to do so was the product of bad faith, i.e., a belief that recording field sobriety tests did not help in prosecuting DUIs and was, in fact, favorable to the defense. The county court dismissed the charges. The Second District reversed, holding that dismissal was not required as the police had no duty to record the sobriety tests. The court then went further, stating that, had the field sobriety tests been recorded and the recordings not been preserved, it would have affirmed the dismissals as such evidence was “material” and its loss was a violation of the defendants’ due process rights regardless of any bad faith on the part of the State. In so concluding, the court wrote that the defendants had presented evidence indicating that the tapes would have impeached the field sobriety test reports and the testimony of the officers. The nature of this evidence is not, however, apparent from the opinion. The Second District’s statements regarding the propriety of dismissal in the face of unpreserved field sobriety tests are dicta and nothing in the opinion indicates that the court considered whether lesser sanctions would have sufficed.

The State suggests that an appropriate lesser sanction is to simply try the case without informing the jury that the tape existed. We agree with the defendant, however, that this provides the defendant no remedy at all for the loss of the tape. There are, however, other possibilities. One is for the trial court to preclude the State from utilizing the roadside sobriety tests. See Lancaster, 457 So. 2d at 506. Another possibility would be instructing the jury that they may infer that the lost evidence is exculpatory. See, e.g., State v. Leslie, 708 P.2d 719, 728 (Ariz. 1985) (en banc) (stating that defendant is entitled to have the jury instructed that it “may infer that the true fact is against the interest of the state” where the state fails to preserve material evidence that may have exonerated the defendant) (citation omitted);Deberry v. State, 457 A.2d 744, 754 (Del. 1983) (requiring State to stipulate on retrial that if defendant’s clothing, lost by the State, were introduced, it would not contain any evidence incriminating him). Such an instruction would be akin to the so-called Valcin¹ instruction given in Florida civil cases. See, e.g., Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So. 2d 547, 551 (Fla. 4th DCA 2005).

Having concluded that dismissal was too harsh a sanction, we reverse the order dismissing the felony DUI charge and remand the case to the trial court with instructions that it consider a sanction short of dismissal to address the loss of the tape. We leave it to the trial court to determine what lesser sanction is appropriate.

Reversed and Remanded.

HAZOURI and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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B.E., a juvenile, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-1132.

District Court of Appeal of Florida, Third District.

Opinion filed June 17, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Roger A. Silver, Judge, Lower Tribunal No. 07-1161.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and William M. Bennett, Certified Legal Intern, for appellant.

Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

Before COPE, RAMIREZ, and SUAREZ, JJ.

PER CURIAM.

B.E., a juvenile, appeals the trial court’s adjudication of delinquency and disposition entered following an adjudicatory hearing. We affirm because the trial court did not err when it denied B.E.’s motion for judgment of acquittal.

The sole issue raised in this appeal is whether the trial court erred in denying B.E.’s motion for a judgment of acquittal based on the State’s alleged failure to establish corpus delicti for the charge of possession of marijuana so as to make B.E.’s confession admissible. Before a confession is admitted, the State has the burden of proving by substantial evidence that a crime was committed. State v. Allen, 335 So. 2d 823, 824 (Fla. 1976), the Florida Supreme Court declared that “the State has the burden of proving by substantial evidence that a crime was committed, and that such proof may be in the form of circumstantial evidence.” The State, however, does not have to prove the identity of the defendant as the guilty party. See Burks v. State, 613 So. 2d 441, 443 (Fla. 1993).

In this case, the State’s theory was constructive possession of marijuana. The prosecution presented competent, substantial evidence to establish each element of constructive possession of marijuana. It is uncontroverted that possession of marijuana is a crime. Thus, someone, either B.E. or the resident of the premises, was in constructive possession of the illicit substance. For the purpose of showing corpus delicti, it is immaterial which of the two suspects was guilty of the constructive possession. Consequently, the State was able to introduce B.E.’s statement acknowledging ownership of the marijuana.

Affirmed.

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STATE OF FLORIDA, Appellant,
v.
VERNON COOK, Appellee.

No. 4D08-104.

District Court of Appeal of Florida, Fourth District.

June 17, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Marc Gold, Judge, L.T. Case No. 07-4462CF10A.

Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.

No appearance for appellee.

MAY, J.

The State appeals a judgment withholding adjudication and placing the defendant on probation for possession of cocaine. It argues the trial court erred in refusing to adjudicate the defendant guilty, pursuant to section 775.08435(1)(c), Florida Statutes (2007). We agree and reverse.

The State charged the defendant with possession of cocaine (Case No. 07-4462CF10A). The defendant’s scoresheet listed a possession of cocaine offense, a third degree felony, in his prior record. At the plea hearing, the prosecutor advised the court that the defendant had entered a plea in another case (Case No. 07-6980CF10A) before a different judge and had received a withhold of adjudication even though that charge arose after the present charge. The prosecutor then offered the defendant an adjudication and eighteen months probation.

The trial court noted that the present case had an older case number and involved an earlier arrest. The court therefore concluded it was the defendant’s first offense. The prosecutor argued that the defendant was ineligible for a second withhold of adjudication. Defense counsel acknowledged that the defendant had received a prior withhold and 18 months probation on the second charge, but argued he was still entitled to have the adjudication withheld because the present case was actually the first offense. The trial court told the defendant that if he pled open to the court, the court would consider withholding adjudication. The defendant entered an open no contest plea.

The trial court then withheld adjudication and sentenced the defendant to 15 months probation because it was his first offense and had occurred prior to the other charge. The State objected to the sentence, and filed this appeal.

The law is straightforward on this issue. A “court may not withhold adjudication of guilt upon the defendant for . . . [a] third degree felony offense if the defendant has a prior withholding of adjudication for a felony offense that did not arise from the same transaction as the current felony offense.” § 775.08435(1)(c), Fla. Stat. (2007). The only exceptions to this rule are when the prosecutor requests “in writing that adjudication be withheld” or if the “court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in s. 921.0026.” § 775.08435(1)(c)1. & 2. Thus, the statute limits the amount of felonies for which adjudication can be withheld. State v. Fulmore, 2 So. 3d 365 (Fla. 4th DCA 2008).

Regardless of which crime occurred first, once a defendant has been graced with a withhold of adjudication, section 775.08435(1)(c) prohibits a second withhold of adjudication if the felony offense did not “arise from the same transaction” and neither exception applies. We therefore reverse and remand the case to the trial court for either re-sentencing or for legally sufficient written reasons to withhold adjudication in accordance with section 921.0026, Florida Statutes.

Reversed and Remanded.

STEVENSON and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Jorge Luis Tapanes, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-978

District Court of Appeal of Florida, Third District.

Opinion filed June 17, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge, Lower Tribunal No. 06-5217.

Jorge Luis Tapanes, in proper person.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.

LAGOA, Judge.

Appellant, Jorge Luis Tapanes (“Defendant”), appeals the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s order.

In February of 2006, Defendant was arrested and charged with possession with intent to sell sixty-one live marijuana plants (count 1).¹ Defendant pled nolo contendere as to count 1 and was sentenced to credit for time served.

Defendant was later charged in federal court with possession with intent to distribute fifty or more marijuana plants. This federal case was not pending at the time of Defendant’s 2006 state court conviction, and arose from a separate act committed by Defendant following his 2006 conviction. On August 24, 2007, following a jury trial in federal court, Defendant was convicted. During his 2008 federal sentencing, Defendant received an enhancement based on the 2006 state court conviction.

As a result of this enhancement in federal court, Defendant filed a Rule 3.850 motion alleging ineffective assistance of counsel in the state court proceeding. Defendant asserted that his March 2006 plea was involuntarily entered into as a result of defense counsel’s misadvice regarding the consequences of his plea. Defendant alleges that his counsel advised him that the nolo contendere plea could not be used against him in future prosecutions. Defendant further states that if his counsel had advised him that the plea to the state charge could later be used to enhance a future federal conviction, he would have foregone the plea and proceeded to trial. As such, Defendant alleges that his counsel provided affirmative misadvice as to the direct consequences of his plea.

In denying Defendant’s motion, the trial court concluded that “[p]ursuant to Hogan v. State, 931 So. 2d 996 (Fla. 3d DCA 2006), [counsel's] misadvice regarding the collateral future sentence-enhancing consequence of a plea is not a cognizable claim.” This appeal ensued.

We affirm the trial court’s denial of the Defendant’s post-conviction motion based on the authority of State v. Dickey, 928 So. 2d 1193 (Fla. 2006). In Dickey, as in this case, the issue involved allegedly incorrect advice about the sentence enhancing consequences of a crime not yet committed. The Florida Supreme Court in Dickey specifically held that “allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant’s plea for future criminal behavior in an otherwise facially sufficient motion are not cognizable as an ineffective assistance of counsel claim.” Id. at 1198.

Accordingly, because Defendant was not entitled to the relief sought, we affirm the trial court’s order.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Cesar Rivero, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-340

District Court of Appeal of Florida, Third District.

Opinion filed June 17, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, John Schlesinger, Judge. Lower Tribunal No. 98-20270

Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

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

Before SHEPHERD, CORTIÑAS, and SALTER, JJ.

SALTER, J.

Cesar Rivero appeals a circuit court order denying his motion for relief under Florida Rule of Criminal Procedure 3.850 without an evidentiary hearing. We affirm.

Rivero claimed in a motion filed in August 2007 that “newly discovered evidence” regarding plea negotiations in 1999 warranted an evidentiary hearing. The procedural history of his trial and conviction, together with the equivocal nature of the comments alleged to constitute the “newly discovered evidence,” demonstrate that no new evidentiary hearing was required.

In 1999, Rivero was convicted of second-degree murder with a firearm and was sentenced to 34 years in state prison. This Court affirmed the conviction and sentence the following year. Rivero v. State, 763 So. 2d 336 (Fla. 3d DCA 2000). In 2002, Rivero filed a motion under Rule 3.850 claiming ineffective assistance of his trial counsel. During an evidentiary hearing on that motion in 2005, Rivero’s trial counsel said:

But again, your plea was, at the time I think was very high. I even thought it was high, and I tried to get it lower. You wouldn’t go lower. I think we even approached Judge Rothenberg at the last minute, but she wasn’t very receptive to offering something, and Mr. Rivero was not interested in taking a plea. I mean, obviously if it was probation or five years, maybe he would have taken it, but if I go off memory, I think your plea offer was maybe you went down to 18 years. I’m not sure, but it was around 20 years, around there (emphasis supplied).

Following the evidentiary hearing, the trial court denied the motion. Rivero appealed, and we affirmed. Rivero v. State, 939 So. 2d 109 (Fla. 3d DCA 2006).

In 2007, Rivero filed another motion under Rule 3.850, this time alleging that his trial counsel’s 2005 testimony was newly-discovered evidence of ineffective assistance of counsel during the 1999 plea negotiations. The motion included affidavits from Rivero, his mother, and his sisters, all of which stated that they were advised of pretrial plea offers carrying a sentence of more than 20 years, particularly in a range from 24 to 32 years, and that they were never advised of an offer carrying an 18 to 20 year sentence. No affidavit from Rivero’s trial counsel was attached to confirm with any degree of certainty¹ that a plea offer of 18, 20, or any other number of years less than 24, was ever made by the State.

The circuit court denied the 2007 motion because there was no allegation or proof that the “newly discovered evidence” was unknown to the court, parties, or counsel at the time of trial and could not have been discovered with due diligence within the two year period allowed by Rule 3.850.Morgan v. State, 912 So. 2d 642 (Fla. 5th DCA 2005) (citing State v. Gunsby, 670 So. 2d 920 (Fla. 1996)).² We agree.

Affirmed.

CORTIÑAS, J., concurs.

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Notes:

SHEPHERD, J., dissenting.

For the reasons set forth below, I would reverse the summary denial of Rivero’s Florida Rule of Criminal Procedure 3.850 motion for further proceedings.

In 1999, Rivero was convicted of second-degree murder with a firearm and was sentenced to thirty-four years in state prison. On June 28, 2000, we affirmed Rivero’s conviction and sentence. Rivero v. State, 763 So. 2d 336 (Fla. 3d DCA 2000). Our mandate issued on July 18, 2000. In October 2002, Rivero filed a Rule 3.850 motion, alleging his trial counsel was ineffective by failing to adequately develop his defenses and failing to present a self-defense theory at trial. On September 15, 2005, the trial court held an evidentiary hearing on the motion. While testifying at the hearing, Joel Defabio, Rivero’s trial counsel, remarked, “[I]f I go off memory, I think your plea offer was maybe you went down to 18 years. I’m not sure, but it was around 20 years, around there.” (emphasis added). The trial court denied the pending motion,³ and we affirmed. See Rivero v. State, 939 So. 2d 109 (Fla. 3d DCA 2006).

A year later, on August 31, 2007, Rivero filed another Rule 3.850 motion, this time alleging newly discovered evidence on the ground that Defabio never conveyed a plea offer to him in the range stated at the September 15, 2005 evidentiary hearing, and that he first became aware of this fact on that date.⁴ He further alleged that if his attorney had communicated the offer to him before trial, he would have accepted it. Four affidavits were attached to Rivero’s motion—his own, his mother’s, and his two sisters’—all of which stated they were advised of plea offers carrying a sentence of more than twenty years, particularly in the range from twenty-four to thirty-two years, but were never advised of an offer carrying an eighteen to twenty-year sentence.

The trial court denied Rivero’s Rule 3.850 motion without evidentiary hearing. In its written order, the trial court noted “there is no newly discovered evidence.” In support of its finding, the court placed its sole reliance upon Morgan v. State, 912 So. 2d 642 (Fla. 5th DCA 2005). The majority does the same here. However, as the State concedes, Morgan does not support affirmance in this case.

In Morgan, Morgan claimed the court should have considered his claim of “`newly discovered evidence,’ based upon his allegation that the [S]tate presented him with a plea offer of 17 to 22 years, but his trial counsel failed to communicate the offer to him and had he done so, Morgan would have accepted it.” Id. at 643. The Fifth District Court of Appeal expressed no concern over the “degree of certainty” of the offer. See supra p. 3. Instead, the court focused on the second prong of the “newly discovered evidence” exception to the two-year limit for filing a motion to vacate a judgment under Florida Rule of Criminal Procedure 3.850(b),⁵ whether the evidence “could . . . have been ascertained with the exercise of due diligence.” Morgan, 912 So. 2d at 643. Noting that “Morgan’s motion was filed fourteen years . . . after the issuance of the mandate” in the case, and that “Morgan offer[ed] no allegation about how he obtained the information about a plea offer[ or] why he could not have obtained it earlier,” the court affirmed the trial court’s denial of relief. See id. at 643. In our case, of course, Rivero acted well within two years after he knew of the alleged failure of his counsel and fully explained why he could not have ascertained the alleged failure at an earlier time.⁶ Morgan is not apposite.

As an alternative ground for affirmance, the State argued below that the statement by Defabio, and those contained in the affidavits, do not demonstrate the State made a firm offer that was not communicated. Although not relying on this argument for affirmance, the majority expresses a similar discomfort. The range expressed by counsel for Rivero was less than half of that alleged by Morgan in Morgan, the case relied upon by the majority. While it is true Rivero did not obtain an affidavit from his former trial counsel, there is nothing to be made of that at this point—absent perhaps engaging in impermissible evidence weighing or a credibility ascription.⁷ Unlike in Morgan, here, the defendant states he was unaware of the eighteen to twenty-year plea offer at the time of trial and only became aware of it September 15, 2005. Neither the trial court order nor the attachments refute his claim.

On appeal from a summary denial, this Court must reverse unless the record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A). I would reverse and remand for an evidentiary hearing to resolve whether a firm offer was made, and, if so, the credibility of Rivero’s contention that he was unaware of the offer until September 15, 2005. I would further order the trial court to attach record excerpts conclusively showing Rivero is entitled to no relief if it were to again summarily deny the postconviction motion. See Langdon v. State, 947 So. 2d 460 (Fla. 3d DCA 2006).

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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