Florida Criminal Law Opinions

CHARLIE BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-5019.

District Court of Appeal of Florida, Fourth District.

June 17, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Cynthia G. Imperato, Judge, L.T. Case Nos. 03-005645 CF10A & 05-000352 CF10A.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

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

PER CURIAM.

Appellant, Charlie Brown, appeals the trial court’s order revoking his probation in two cases and imposing a sentence of 8.125 years as a habitual offender. The trial court found that Brown willfully and substantially violated six conditions of his probation — although we are compelled to find that the state proved only two of the six violations. Because we are unable to conclude that the trial court would have revoked Brown’s probation as to the two violations actually proven, we reverse the order revoking probation and remand this case to the trial court for further proceedings.

In 2003, Brown was charged with failure to register as a sex offender. In 2005, while the 2003 case was pending, he was charged with possession of heroin. Initially Brown was found to be mentally incompetent to stand trial. Subsequently, when he was found to be competent to proceed, he pled guilty to both charges and was sentenced concurrently to two years in prison followed by three years of probation. In April of 2007, a violation of probation affidavit was filed in both of the original cases alleging that Brown had violated probation by committing the two new offenses of obstruction without violence and failure of a sex offender to give notification of a change of address (counts I and II); changing his residence (on February 28, 2007) without the consent of his probation officer (count III); failing to report to the probation office after being instructed to report (count IV); changing his residence (on February 26, 2007) without the consent of his probation officer (count V); and failing to produce valid identification to the Department of Highway Safety and Motor Vehicles (“DHSMV”) for purposes of registration after being instructed to do so (count VI).¹

On appeal, Brown concedes that the record supports the trial court’s finding that a violation occurred by twice moving without the probation officer’s consent (counts III and V).

As to counts I and II, there was scant evidence that appellant had been arrested for the new offenses, let alone that he actually committed the crimes. Although the prosecutor referred to a probable cause affidavit and said it was “self-authenticating,” no documents of any kind were ever admitted into evidence.² The only testimony offered by the state came from Brown’s probation officer who testified that Brown committed two new criminal acts while on probation. The probation officer’s fleeting testimony (“He committed a criminal offense without violence, failed to notify sex offender,…”) renders the record devoid of anything that could reasonably lead to a finding that Brown committed two new crimes while on probation. In the light most favorable to the state, the probation officer’s twelve words of testimony, offered to support counts I and II, were pure hearsay and not supported by competent, nonhearsay proof. This court has consistently held that probation cannot be revoked solely on the basis of hearsay evidence. E.C. v. State, 675 So.2d 192 (Fla. 4th DCA 1996).

Count IV of the third amended affidavit for violation of probation alleged that Brown failed to report as directed “as of March 7, 2007.” The probation officer’s testimony regarding this alleged violation did not establish that Brown failed to abide by the requirement. In fact, it may show the opposite. In any case, the probation officer’s testimony was convoluted, contradictory and inconclusive. The state failed to prove this allegation under any standard.

As to the requirement that Brown register with the DHSMV (count VI), Brown testified that he went to the driver’s license office and was told that he needed a birth certificate in order to get a Florida identification card or otherwise register with the DHSMV. Brown’s unrefuted testimony was that he was unable to obtain a birth certificate in his home state of Georgia because the facility from which he could obtain a copy had burned down. The state offered no evidence of any nature to suggest that Brown’s failure to register or otherwise obtain a valid DHSMV identification card was willful.

We reverse the violations of probation on counts I and II (commission of the two new crimes), count IV (failing to report to the probation office after being instructed to report) and count VI (failing to produce valid identification to the DHSMV for purposes of registration after being instructed to do so) because there was simply insufficient evidence to show willful and substantial violations of probation. We affirm the violations of probation on counts III and V (changing residence without first procuring consent of the probation officer). We remand for the trial court to reconsider Brown’s probation revocation and subsequent sentence because it is unclear whether the trial judge would have decided this matter in the same manner if faced with these two violations rather than the six as Brown was originally found to have committed. Wilson v. State, 967 So.2d 1107 (Fla. 4th DCA 2007).

Reversed and remanded.

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

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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BERNY SERRANO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-3338.

District Court of Appeal of Florida, First District.

Opinion filed June 17, 2009.

An appeal from the Circuit Court for Levy County, Stan R. Morris, Judge.

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

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

KAHN, J.

A jury convicted appellant Berny Serrano of first-degree murder, home invasion robbery, and conspiracy to commit home invasion robbery. In this direct appeal of his convictions and sentences, Serrano challenges the denial of three motions to suppress his statements as well as certain rulings regarding testimony at trial. For the reasons that follow, we affirm Serrano’s convictions and sentences in all respects.

I. BACKGROUND

On January 5, 2005, nineteen-year-old Jacob Langworthy was found unconscious in his ransacked home in Levy County, a single gunshot wound to his head. Jacob died the next day. The ensuing police investigation quickly centered on appellant, then a seventeen-year-old high school sophomore. Eventually, a grand jury indicted appellant for Langworthy’s murder as well as home invasion robbery and conspiracy to commit home invasion robbery.

Evidence at appellant’s trial, which spanned four days between April 23 and 27, 2007, established that appellant conspired with four accomplices — fellow high school students Courtney Grant, Kenny Gross, Michael Hill, and Theophilus Lee — to rob Langworthy after school on January 5, 2005, and to steal a cache of money and drugs they expected to find in his home. Each of the four accomplices testified appellant called Langworthy in advance (to make sure he was home) and showed them a handgun as the five drove to Langworthy’s house. Two of appellant’s schoolmates testified appellant told them he planned to rob someone after school on January 5; another student testified appellant quietly showed him the handgun during his first-period art class the day of the shooting.

Grant, Gross, Hill, and Lee all testified they were unarmed as they ransacked the house while appellant held Langworthy at gunpoint and demanded that Langworthy tell them where drugs and money were hidden. According to Hill, when he fled the house behind the other three accomplices, he left appellant standing over Langworthy with a gun and, once outside, heard a sound similar to a “thud” from inside the home. Appellant told both Gross and Grant he shot Langworthy in the head. Each of the four accomplices entered a plea, and each was serving a ten-year prison sentence at the time of appellant’s trial.

Langworthy’s neighbor, Elizabeth Mullins, saw “a young white man” matching appellant’s description run from the home after hearing a sound similar to the report of a gunshot inside. Langworthy’s grandmother, Phyliss Ann McCallum, who interrupted the robbery when she parked her car out front, saw Grant, Gross, and Lee run from the house shortly before hearing a gunshot from inside and then seeing Hill run out of the house. McCallum ran inside to find Langworthy seriously wounded on the floor and appellant, a gun in his hand, running out of the back door. Appellant’s stepfather, Reinardo Pineiro, testified he owned the type of gun used to shoot Langworthy — a .22 caliber handgun — and that the gun went missing around the time of Langworthy’s murder.

The jury convicted Serrano of first-degree murder with a firearm, conspiracy to commit home invasion robbery while armed with a firearm, and home invasion robbery with a firearm. The court sentenced him to a mandatory life imprisonment on the first count, and lesser sentences on the remaining charges.

The first three issues on appeal concern the denial of appellant’s motions to suppress incriminating statements made to police as well as an inculpatory letter he wrote to the trial judge. The remaining issue concerns the judge’s determination that the four accomplices could testify that, to their knowledge, their clothes were free of gunshot residue or blood.

The first suppression issue concerns Serrano’s confession during a one-hourtwenty-five-minute interrogation at police headquarters on January 6, 2005, the day after the shooting. Sgt. Scott Tummond with the Levy County Sheriffs Office began the interrogation by describing the incriminating evidence police had gathered to that point in the investigation. When Tummond finished his summary, he explained appellant’s rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and sought Serrano’s acknowledgement of each of his rights — to remain silent, to talk to a lawyer before questioning and have a lawyer present during questioning, and to stop answering questions at any time. Appellant acknowledged each of those rights and, according to the transcript of the interview, signed a Miranda form.

Tummond then read aloud a portion of the form dealing with appellant’s decision to waive his Miranda rights and sought appellant’s acknowledgment of the waiver. Once appellant acknowledged the waiver, another officer, Sgt. Robert Schultz, said:

What we need to do, we need to get your side of it. We’ve got everybody else’s side. We need to get your side to be fair and honest. That’s what we need. That’s why we’re here. This is your opportunity, okay? That’s what we need to do and this is for your benefit and for our benefit.

Appellant said in response, “I agree to tell you my side right now.” Tummond then asked him, “You’re willing to sit down with these two gentlemen and tell them your side?” Appellant replied, “I’ll tell them my side but not answer the questions without my lawyer.”

After obtaining answers to thirteen further biographical questions related to the Miranda form, Schultz told appellant, “Okay. So my understanding is, make it clear, is that you wanted to make a statement. You wanted to tell your side of the story but you’re not willing to answer my questions; is that right?” Appellant did not respond audibly, but Schultz said, “Okay. Tell me whatever you want to tell me.” Appellant proceeded to tell Schultz that the other four suspects asked him to participate with them in a robbery but that he declined and went home after school instead. This account comprises twenty-six lines of transcript.

Schultz then said, “Okay. So again, you don’t want me to ask no questions, right? That’s your official — you don’t want me asking no clarification questions. You just want to make your statement, right?” Appellant then contradicted his previous position, saying, “Well, go ahead, you can ask some questions.”

At that juncture, an assistant state attorney present during the interrogation admonished appellant, “They previously told you you had the right to have an attorney here before you’re asked any questions. Earlier you said you did want one before any questions were asked. But then you said you would give a statement. Now, you’re saying that you will answer his clarification questions?” Appellant said, “Depending on the question,” and Schultz said, “Fair enough.” The prosecutor told him again, “Like they told you before, you have the right to stop at any time. Do you understand that?” Appellant said he understood, and Schultz pressed forward with substantive questions that appellant answered. At length, Serrano fully confessed to shooting Langworthy.

The second motion sought suppression of incriminating statements appellant made to an officer at the county jail on January 18, 2005, twelve days after his arrest. The record indicates that, during a meeting convened with Capt. Chuck Bastak at appellant’s request, appellant offered to tell Bastak the location of the murder weapon in exchange for a promise that jail officers would arrange a contact visit with his mother and a haircut. No lawyer was present during Bastak’s taped conversation with Serrano, although Bastak and another officer advised appellant of his right to counsel several times before appellant said anything regarding the gun, as the transcript indicates. At length, after acknowledging several of Bastak’s and another officer’s admonitions of his right to counsel, appellant proceeded to tell Bastak where to find the gun, although, incidentally, the record reflects that the police did not find the gun there.

A third suppression motion concerned a letter appellant wrote to the trial judge, in which he confessed his participation in the robbery but claimed the gun discharged accidentally and that he did not intend to kill Langworthy. The letter suggested Serrano’s religious beliefs impelled him to confess his involvement in the episode, even if he did not intentionally pull the trigger. In the letter, Serrano asked the trial judge to “maybe send . . . home” his accomplices and to “get [him] into a courtroom whenever possible.”

The trial court denied all three suppression motions after a hearing. At trial, the State played audio recordings of appellant’s interrogation and his conversation with Bastak and introduced into evidence Serrano’s letter to the judge. For the reasons that follow, we conclude that the court properly denied each suppression motion. We furthermore find no abuse of discretion in the trial court’s decision to permit the accomplices to testify regarding the absence of visible blood or gunshot residue on their clothing.

II. ANALYSIS

A. Motions to Suppress

Appellant first argues the trial court erred in denying his motions to suppress evidence of the January 6, 2005, confession, evidence of the January 18, 2005, conversation with Bastak regarding the murder weapon, and the letter he wrote to the trial judge. Contrary to appellant’s position, we find no error in admission of this evidence.^* We will address each motion to suppress in turn.

Appellant first sought suppression of his confession to detectives the day after the shooting. A suspect undergoing custodial interrogation, faced with questions designed to elicit incriminating testimonial responses, has the right to confer with counsel beforehand and may elect to have counsel present during questioning.Miranda, 384 U.S. at 436. A suspect may waive his or her Miranda rights but, during subsequent questioning, may think better of the waiver and decide to consult with an attorney. In Davis v. United States, the U.S. Supreme Court held that a suspect who wishes to invoke previously waived Miranda rights and to confer with an attorney “must unambiguously request counsel” in order for police officers to cease an interrogation already in progress. 512 U.S. 452, 459 (1994). The Court held that only a clear, unequivocal, and unambiguous request for counsel will suffice: “If the suspect’s statement [regarding the need for a lawyer] is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Id. at 462.

After Davis, the Florida Supreme Court, writing in State v. Owen, explained that

[a] suspect must articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent. If the statement is ambiguous or equivocal, then the police have no duty to clarify the suspect’s intent, and they may proceed with the interrogation. . . .

Owen, 696 So. 2d 715, 718 (Fla. 1997) (quoting Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994)). Owen applies only where the suspect undergoes questioning after validly waiving the right to counsel pursuant to a proper Miranda warning at the outset of interrogation. Id. at 719; see Almeida v. State, 737 So. 2d 520, 523 n.7 (Fla. 1999) (recognizing that Owen rule “applies only where the suspect has waived the right earlier during the session”); accord Davis, 512 U.S. at 461 (holding that “after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney”).

Subsequent cases hinge on whether a suspect has made an equivocal or unequivocal assertion of the right to counsel. See, e.g., Walker v. State, 957 So. 2d 560, 571 (Fla. 2007) (concluding that suspect’s statement, “I think I may need a lawyer,” and subsequent question asking detectives whether he needed counsel, were not unequivocal requests for attorney and did not require cessation of interrogation); Jones v. State, 748 So. 2d 1012, 1019-20 (Fla. 1999) (concluding that suspect who confessed after telling jail guards he wanted “to talk to his mother, his attorney, and [a detective]” did not unequivocally invoke right to counsel).

Owen prohibits further interrogation after an unequivocal assertion of the right to counsel. 696 So. 2d at 718-19. Nothing in the case law, however, necessarily prevents police officers from asking harmless questions to clarify a suspect’s assertion of the right to counsel, even if a reviewing court determines, in hindsight, that the suspect unequivocally requested an attorney. Miranda applies, for Fifth Amendment purposes, only to questions designed to elicit incriminating testimonial responses: questions ” the police should know [are] reasonably likely to evoke an incriminating response from a suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980); see Edwards v. Arizona, 451 U.S. 477, 485-86 (1981) (“The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.”).

Because a suspect’s yes-or-no response to a question seeking verification of even an unequivocal clear invocation of the right to counsel could hardly be characterized as incriminating or testimonial, an officer’s question to confirm the suspect’s wishes, without more, does not violate clearly established law. See Owen, 696 So. 2d at 718 (describing effect of unequivocal assertion of right to counsel upon propriety of further “interrogation”); Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992) (noting that, “if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin or, if it has already begun, must immediately stop” (emphasis added)). This approach squares with the rule in Edwards “that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogationeven if he has been advised of his right.” 451 U.S. at 484 (emphasis added). Because a question clarifying the suspect’s wishes does not amount to interrogation, under the view of interrogation taken in Innis and subsequent cases, nothing in the case law prohibits such a question. A clarifying question must, of course, remain narrowly focused on verifying the request for counsel; officers may not “engage[] in conduct they could reasonably anticipate would elicit an incriminating response.”Cuervo v. State, 967 So. 2d 155, 164 (Fla. 2000) (holding confession inadmissible where defendant said, through Spanish interpreter during interrogation, he would “declare nothing,” but where officers subsequently asked series of questions “explaining” that defendant had opportunity to talk if he wanted, among other things).

Here, appellant acknowledged his rights and waived them. The trial court found equivocation in appellant’s subsequent assertion of his right to counsel because he initially said, “I agree to tell you my side right now,” then said, “I’ll tell [you] my side but not answer the questions without my lawyer,” and finally said, “Well, go ahead, you can ask some questions.” Although the trial court reached an ultimately correct conclusion in denying the motion to suppress, the language of the order does not strictly follow the case law, as the appropriate legal analysis focuses on the particular statement invoking the right to counsel and whether that statement, in and of itself, is ambiguous or equivocal. See Owen, 696 So. 2d at 718 (“A suspect must articulate his desire to cut off questioning with sufficient clarity . . . . If the statement is ambiguous or equivocal, then the police . . . may proceed with the interrogation.” (quoting Coleman, 30 F.3d at 1424) (emphasis added)). We find no ambiguity in appellant’s original position: he would make a statement but not answer questions without a lawyer. People make unequivocal statements all the time but subsequently change their minds; the mere fact that appellant eventually agreed to answer questions does not render his original position equivocal.

Nonetheless, we conclude that appellant’s Miranda rights were not violated and that his eventual confession was admissible. After appellant made an exculpatory statement, Detective Schultz said, “So again, you don’t want me to ask no questions, right? That’s your official — you don’t want me asking no clarification questions. You just want to make your statement, right?” Until that point, appellant’s desire not to answer questions without a lawyer had been clear and unambiguous. Had the interrogation proceeded, appellant’s testimonial responses would have been inadmissible. See Owen, 696 So. 2d at 718-19. Schultz’s question, however, did not fall under the ambit of Miranda; he merely asked appellant to confirm he would not undergo interrogation, and appellant’s response — “Well, go ahead, you can ask some questions” — was non-testimonial.

We find nothing in the case law to prohibit such a question under these circumstances, nor does the record suggest that Schultz’s follow-up question “badgered” appellant into confessing, as appellant argues.

Rather, far short of bespeaking any sinister intention on the detective’s part, the record reflects that Schultz merely attempted to conclude the encounter by confirming what appellant wanted to do. The outcome might be different had Schultz, instead of confirming Serrano’s wishes, advised him to submit to interrogation or asked him to reconsider his position. On this record, though, we find no evidence that Schultz’s question, whether or not hindsight might characterize it as superfluous, was improper. We note that an assistant state attorney in the room immediately interjected with an admonition to appellant that he had the right not to answer questions and could have a lawyer present; appellant acknowledged those rights but persisted. The context belies any suggestion appellant felt badgered or beleaguered. Had such an atmosphere prevailed, appellant would hardly have so readily agreed to proceed with an interrogation, once given the opportunity to rethink his strategy. The trial court properly determined that appellant’s confession was admissible.

As to appellant’s recorded conversation with Bastak, the detective whom he told where to find the murder weapon (essentially admitting his involvement in the murder), we likewise find no error. The record indicates that appellant wanted to hug his mother and have a haircut in jail and requested a meeting with Bastak to exchange information about the murder for these accommodations. Appellant has not, however, demonstrated that his statement was inadmissible as the product of coercion. The law recognizes that one may ultimately confess to a crime because of an insurmountable internal conflict that impels one inexorably toward confessing. That alone, however, absent a showing of affirmative coercion by the police, does not require suppression. See generally Colorado v. Connelly, 479 U.S. 157, 170-71 (1986) (holding that “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that. Respondent’s perception of coercion flowing from the `voice of God,’ however important or significant such a perception may be in other disciplines, is a matter to which the United States Constitution does not speak”). Furthermore, even one who has previously invoked his Miranda rights may waive them by “initiating] further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85.

Appellant’s conversation with Bastak is not analogous in any determinative respect to the custodial interrogation in Ramirez v. State, a case upon which appellant substantially relies. 739 So. 2d 568 (Fla. 1999). In Ramirez, the seventeen-year-old defendant’s “Miranda warnings were not given until [the defendant] had made significant admissions of guilt. Then, immediately before administering the Miranda warnings, one of the detectives minimized their significance by suggesting in a casual, offhand manner that he did not expect Ramirez to invoke his rights” and assured him he was not under arrest. Id. at 576. The record in this case does not reflect that Bastak or the other officer present did or said anything remotely analogous to the egregious conduct of the officers in Ramirez. To the contrary, Bastak and another officer scrupulously admonished appellant several times of his right to have counsel present. The meeting was convened at appellant’s unilateral request, for the express purpose of offering information about the murder in exchange for certain accommodations. The trial court properly determined appellant’s inculpatory statements during this meeting were admissible. See Edwards, 451 U.S. at 485-86 (“Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial.”); Traylor, 596 So. 2d at 966 (noting that suspect “is free to volunteer a statement to police on his or her own initiative at any time on any subject in the absence of counsel”).

We likewise find no error in the trial court’s refusal to keep from the jury appellant’s letter to the trial judge. Appellant argues on appeal that the letter was inadmissible because it represented an attempt to negotiate a plea. See § 90.410, Fla. Stat. (2006) (providing that evidence of offers to plead guilty or statements related to such offers is inadmissible). Upon review of the letter, we find no support for this construction. On the face of the letter and in the context of the record, we cannot conclude that the letter reflects an attempt to plea-bargain or that it was written under circumstances suggesting plea negotiations had begun or would begin, as the law would require for suppression. See Stevens v. State, 419 So. 2d 1058, 1062 (Fla. 1982). Rather, the letter contains admissible, “[unsolicited, unilateral utterances." Id. 419 So. 2d at 1062.

We have found no error in any of the rulings discussed above. Were we to find error, however, it would have been harmless. The record reflects no reasonable possibility that, considered alone or together, the January 6 confession, the conversation about the gun, or the letter contributed to the jury's verdict, in light of the substantial quantum of admissible incriminating testimony the jury heard at trial. See State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986) (holding that, to show error was harmless, State must show "there is no reasonable possibility that the error contributed to the conviction"). Apart from the evidence at issue in the motions to suppress, Hill testified that, as the other accomplices fled Langworthy's home, he left appellant in the house, holding a gun to Langworthy's head, and heard a loud noise from inside the home as he ran away; Gross and Grant both testified that appellant admitted to them he shot Langworthy in the head as the group fled the scene; eyewitnesses testified that an armed young man matching appellant's description fled the house shortly after a gunshot crackled through the neighborhood; and appellant's stepfather testified he owned, and was missing, the type of handgun used to shoot Langworthy. The substantial evidence of guilt leads to the conclusion that appellant would have been convicted without the benefit of the evidence for which he sought suppression.

B. Evidentiary Rulings Regarding Accomplices' Testimony

At trial, the prosecutor asked each of appellant's accomplices whether, "to [his] knowledge,” there was blood or gunshot residue on the clothes he wore during the robbery. In each instance, trial counsel objected and argued the question called for an expert forensics opinion that each witness — a former high school student without formal postsecondary education — was unqualified to render. We find no error in the trial court’s decision to permit the testimony at issue.

The evidence code precludes testimony by a lay witness relating inferences or opinions that “require a special knowledge, skill, experience, or training.” § 90.701(2), Fla. Stat. (2006). “Lay witness opinion testimony is admissible if it is within the ken of an intelligent person with a degree of experience.” Floyd v. State, 569 So. 2d 1225, 1232 (Fla. 1990). Any witness, however, may testify as to matters within the witness’s personal knowledge, including personal observations. See § 90.604, Fla. Stat. (2006).

Although the questions at issue, if taken further, might well have entered the province of expert opinion testimony, we cannot conclude the trial court committed an abuse of discretion in permitting the lay witnesses to testify regarding their bare observations. Indeed, one would be hard-pressed to conclude the questions called for opinion testimony at all; the questions merely sought the witnesses’ observations, and the qualifier, “to your knowledge,” removed the inquiries from the realm of opinion testimony. See id. Even if the questions called for opinion testimony, however, the qualifier rooted their subject matter “within the ken of an intelligent person with a degree of experience.” Floyd, 569 So. 2d at 1232. We find no error in the questions as narrowly phrased under the particular circumstances presented here.

AFFIRMED.

BENTON, J., CONCURS IN RESULT WITH OPINION and BROWNING, J., DISSENTS WITH OPINION.

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Notes:

BENTON, J., concurring in result.

Any conceivable error in the admission of any of the statements the defendant gave was harmless beyond a reasonable doubt. As regards the assertedly expert opinion testimony, I agree with the analysis in the majority opinion.

BROWNING, J., dissenting.

In Ramirez, 739 So. 2d at 568, the Florida Supreme Court held that whether a juvenile’s confession is voluntary after a waiver of Miranda rights is controlled by a “totality of the circumstances” test. Because I believe the totality of the circumstances precludes admission of Appellant’s statements of January 6, 2005, January 18, 2005, and June 16. 2005, I must dissent.

Ramirez

In Ramirez the court addressed a juvenile’s waiver of Miranda rights as follows:

The “totality of the circumstances” to be considered in determining whether a waiver of Miranda warnings is valid based on the two-pronged approach of Moranmay include factors that are also considered in determining whether the confession itself is voluntary. See Sliney, 699 So. 2d at 669; see also State v. Sawyer, 561 So.2d 278, 284-85 (Fla. 2nd DCA 1990). The factors that we consider relevant here include: (1) the manner in which the Miranda rights were administered, including any cajoling or trickery; see Miranda, 384 U.S. at 476, 86 S.Ct. 1602; Brewer v. State, 386 So. 2d 232, 237 (Fla. 1980); (2) the suspect’s age, experience, background and intelligence, see State v. S.L.W., 465 So. 2d 1231, 1232 (Fla.1985) (quoting Fare, 442 U.S. at 724-25, 99 S.Ct. 2560); Doerr v. State, 383 So. 2d 905, 907 (Fla.1980); (3) the fact that the suspect’s parents were not contacted and the juvenile was not given an opportunity to consult with his parents before questioning, see Doerr, 383 So. 2d at 907; (4) the fact that the questioning took place in the station house, see Drake, 441 So. 2d at 1081; and (5) the fact that the interrogators did not secure a written waiver of the Miranda rights at the outset, see Sliney, 699 So.2d at 669 n. 10; Traylor, 596 So. 2d at 966.

Ramirez, 739 So. 2d at 575.

January 6, 2005 Statement

First, and of overarching importance, the state blatantly failed to comply with section 985.207(2), Florida Statutes (2005).¹ The record reveals no attempt by the Sheriff’s Department to contact Appellant’s parents when he was taken into custody, or at anytime thereafter. In Ramirez, when addressing a similar, but less egregious, failure, the court pointed out “the statute [39.037(2)] would be rendered meaningless if all that is required are perfunctory attempts to contact a juvenile’s parents” and “the State . . . must bear the burden of demonstrating statutory compliance.” Ramirez, 739 So. 2d at 578. Alarmingly, the Sheriff’s Department did not attempt any contact with Appellant’s parents, in contrast to a telephone message left on the defendant’s parents’ answering machine in Ramirez. In fact, during Appellant’s long incarceration before trial (six months), the record is silent as to whether Appellant’s parents were ever contacted by the authorities. Under Ramirez it is the State’s burden to prove record compliance with section 985.207(2), and it utterly failed to do so, or even attempt to do so, for that matter. In my view, this factor alone compels reversal, but even assuming arguendo that it does not, I find other circumstances that augment that failure and, under the “totality of the circumstances” test certainly compel reversal of Appellant’s conviction.

That next deficiency occurred when Appellant unequivocally asserted his right to counsel by stating he would “not answer questions without my lawyer.” At that point in time, the deputies should have ceased questioning Appellant until a lawyer was appointed. Spradley v. State, 442 So. 2d 1039, 1042 (Fla. 2nd DCA 1983). Nor can the State plausibly maintain, as determined by the majority opinion, that Appellant’s election of counsel was not unequivocal, because Sgt. Tummond made the following record statement to Appellant:

I’m not asking nothing [sic] about your case or what the charges — you already said you don’t want nobody to say nothing …..

* * *

You have the right to have an attorney here before you’re asked any questions. Earlier you said you did want one before any questions were asked.

(underlining added). This exchange vividly reveals what Sgt. Tummond knew before Appellant made his statement adverse to his interest. Accordingly, Sgt. Tummond and the other deputies present should have stopped and provided Appellant with counsel right then and there. For this failure, Appellant’s statements should be inadmissible.

Statement of January 18, 2005

Appellant’s statement of January 18, 2005, is inadmissible, just like his January 6, 2005, statement, and the trial judge should have excluded it. This statement was given after Appellant asked for a meeting and offered to tell the State the location of the murder weapon in exchange for a visit with his mother and a haircut. Before consummating this exchange, Capt. Bastak asked Appellant if he had an attorney. When Appellant told him the attorney who had contacted him (presumably a public defender) would not be representing him, Bastak told him “you technically have an attorney” and proceeded to take Appellant’s statement. How a defendant “technically has an attorney” is a mystery to me. It is apparent from the record that the public defender’s office had a conflict and never intended to represent Appellant. The public defender’s office was at that very time representing co-defendants, who as early as January 5, 2005, had “fingered Appellant” as the shooter and were busy seeking to mitigate their sentences’ severity by giving adverse testimony against Appellant. However, despite this obvious conflict, a “conflict attorney” was not appointed for Appellant until May 19, 2005, a useless gesture by that time because Appellant’s statements already had been given.

Statement of June 6, 2005

Finally, I would suppress Appellant’s June 6, 2005, letter to the trial judge. The letter represented a pro se filing when Appellant was represented, finally, by conflict-free counsel. The letter should have been rejected and returned, as a pro se filing is not acceptable when a defendant is represented by counsel. See Logan v. State, 846 So. 2d 472, 479 (Fla. 2003); Mourra v. State, 884 So. 2d 316, 320-21 (Fla. 2nd DCA 2004).

General Consideration

A new trial, in this circumstance because of Appellant’s alleged heinous acts, is sure to raise a “hue and cry” that a known criminal is being released on a technicality. However, a recent Duval County case that drew the attention of this Court, and the public, reveals the reasons for a strict application of Ramirez to a juvenile’s confession after a waiver of Miranda rights, and the mischief that can flow from a failure to do so. See Curtis v. State, 876 So. 2d 13 (Fla. 1st DCA 2004). Before Curtis was charged, a fifteen-year-old juvenile, Brenton Butler, was charged with killing the same woman during an armed robbery. Butler was identified as the killer by the deceased woman’s husband, an eyewitness. Butler was induced to waive his Miranda rights after the police violated section 39.037(2), Florida Statutes, by failing to call Butler’s parents, as here; and Butler later confessed to the murder. At trial, Butler’s confession was deemed voluntary over objection, admitted as evidence, and presented to a jury that had the good judgment to acquit him. In all probability, a guilty verdict would have resulted in the destruction of Butler’s meaningful life. However, to the credit of the jury, and not of the judiciary, a great injustice was avoided, as revealed by subsequent events. After Butler’s acquittal, the real perpetrator of the murder was identified, tried, and found guilty of the murder on irrefutable hard forensic evidence. See Curtis.

This occurrence is a prime example of why Ramirez should be strictly applied without hesitation here. One cannot know whether Appellant is innocent, as was Butler; however, I can assert that due process, the right to counsel, calling a juvenile’s parents as required, and giving Miranda warnings should be strictly required for the reasons exhibited by the misdeeds surrounding the Butler prosecution, and these requirements were violated here. Our system is designed to free the innocent and not secure convictions by recognized unreliable procedures, as were applied here.

In my view, although I think Ramirez requires reversal, a minor’s confession should be considered involuntary and inadmissible as a matter of law unless a parent, guardian, or counsel is present and consents to a waiver of his or her Miranda rights. Florida law, on the one hand, will not allow a juvenile to contract for goods and services, but will allow the same juvenile to “contract” away his Miranda rights, a far more serious consequence in most circumstances. See Chap. 743, Fla. Stat.; Gautier v. Bradway, 99 So. 879 (Fla. 1924). Surely, if Miranda rights mean anything, a juvenile should not be allowed to waive them absent the consent of a parent, attorney, or legal guardian. A minor’s natural immaturity is recognized when contracting for goods and services, and it is common knowledge that a judgmental imbalance exists when a minor is dealing with an adult, and especially with a police officer. Surely, due process rights are just as important as the right to contract. That imbalance should be recognized and respected when Miranda rights are waived, just as in the case of a contract. In my view, one day this will be the law, because allowing a juvenile to confess to a crime after individually waiving his or her Miranda warnings is inconsistent with what we all know to be the status of human behavior and the fair administration of justice and due process.

For these reasons, I would grant Appellant a new trial and mandate exclusion from evidence Appellant’s statements of January 6, 2005; January 18, 2005; and his letter of June 6, 2005. Thus, I dissent from this Court’s failure to do so.

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

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Notes:

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Courtesy of David Edelstein

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GREGORY SCHLICHER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-3003.

District Court of Appeal of Florida, Fourth District.

June 17, 2009.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County, Robert R. Makemson, Judge, L.T. Case No. 432007CF363S.

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

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

DAMOORGIAN, J.

Gregory Schlicher timely appeals his judgment of conviction and sentence on drug-related charges. Schlicher argues that the trial court reversibly erred by denying his motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c), motion for judgment of acquittal, and motion to sever. We find merit to Schlicher’s claim that the trial court reversibly erred by denying his motion for judgment of acquittal on Counts 1-3 and 5-8, and reverse his convictions and sentences on those counts. We affirm Schlicher’s conviction and sentence on Count 4 without discussion.

This case arises from a lengthy drug investigation by the Martin County Sheriff’s Office. During the investigation, the police discovered Schlicher’s involvement in a drug ring. Ultimately, Schlicher was arrested and charged with six counts of Conspiracy to Purchase Cocaine (Counts 1-3 and 6-8), one count of Soliciting the Sale or Delivery of Cocaine (Counts 4) and one count of Soliciting the Purchase of Cocaine (Count 5). The eight counts related to eight separate dates during the months of December 2006 and January 2007 on which drug transactions allegedly took place

After his arrest, Schlicher filed a motion to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c), arguing that the charges in the information were vague and indistinct. The motion to dismiss was followed by a motion to sever the eight charges on the grounds that Schlicher would be prejudiced by a single trial on all eight charges. The trial court heard and denied both of these motions.

During the trial, the State presented a number of police witnesses who testified that the police were conducting an investigation, primarily through wiretaps, of a cocaine trafficking organization headed by Jose Tzoc-Caxaj (Jose). Schlicher was not the target of the investigation, but came to be known to police when he purchased cocaine from Jose. Schlicher admitted to police that he had purchased cocaine consistently from Jose for his own use, but maintained that he was not a drug dealer. The State also introduced recordings of the wiretapped conversations between Jose and Schlicher. These conversations are, in large part, the basis of the charges against Schlicher.

At the close of the State’s evidence, Schlicher moved for a judgment of acquittal. After the jury returned a guilty verdict on the charges, Schlicher moved for a new trial arguing that the verdict was contrary to the weight of the evidence. The trial court denied these motions.

Schlicher now appeals the denial of his motion for judgment of acquittal. “In reviewing a motion for judgment of acquittal, a de novo standard of review applies.”Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). If there is competent, substantial evidence of each element of the charged crime, the denial of a motion for judgment of acquittal will be affirmed. Johnson v. State, 969 So. 2d 938, 955 (Fla. 2007).

First, Schlicher incorrectly contends that the State’s case against him was purely a circumstantial evidence case, which requires a more stringent standard of review. State v. Law, 559 So. 2d 187, 188 (Fla. 1989) (“Where the only proof of guilt is circumstantial . . . a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.”). At trial, the State introduced recorded conversations allegedly between Jose and Schlicher. The recorded conversations are direct evidence, not circumstantial evidence. Moreover, Schlicher’s argument that the State could not prove that one of the voices belonged to him goes to the sufficiency of the evidence, not whether it was circumstantial. Thus, the heightened standard does not apply. See Pagan, 830 So. 2d at 803.

Schlicher next argues that the State failed to prove that he committed the crime of conspiracy to purchase cocaine, for which he was charged in Counts 1-3 and 6-8 of the information. A conspiracy exists where there is an express or implied agreement between two or more persons to commit a criminal offense, and an intention to commit the offense. Leigh v. State, 967 So. 2d 1102, 1104 (Fla. 4th DCA 2007); Pino v. State, 573 So. 2d 151, 152 (Fla. 3d DCA 1991). The agreement may be inferred from the circumstances; direct proof is not necessary. Leigh, 967 So. 2d at 1104; Pino, 573 So. 2d at 152. Florida courts have generally affirmed convictions for conspiracies to buy or sell drugs where the “defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase.” Leigh, 967 So. 2d at 1104 (citing Pino, 573 So. 2d at 152).

Logic demands that the agreement that constitutes the conspiracy must be an agreement to commit the same criminal offense. Green v. State, 999 So. 2d 1098, 1098 (Fla. 5th DCA 2009) (where the court affirmed the defendant’s conviction for conspiracy to purchase cocaine because the co-conspirators had a common purpose to commit the crime of purchase of cocaine). In a buy-sell transaction, that agreement usually does not exist because the buyer and seller each intend to commit a different criminal offense. As a result, there is no criminal conspiracy to pursue a common goal. Such is the case here, where Schlicher and Jose were on opposite sides of the drug transactions.¹ Accordingly, there was no evidence of an express or implied agreement between Schlicher and Jose to commit the common criminal offense of purchase of cocaine.

The State relies on Leigh to support its argument that Schlicher’s conspiracy convictions should be upheld. This case, however, is factually distinguishable from the present case. In Leigh, two or more defendants were engaged in the sale or purchase of drugs from a third party. Leigh, 967 So. 2d at 1103-04; see also Pino, 573 So. 2d at 152. The defendants were convicted based on their conspiracies with codefendants who were on the same side of the transactions. Leigh, 967 So. 2d at 1105; see also Pino, 573 So. 2d at 152. This Court reasoned that, in order to carry out either the joint purchase or the joint sale of drugs, there must have been a prior agreement among the defendants to achieve that sale, or else the sale would not have occurred. Leigh, 967 So. 2d at 1105 (citing Pino 573 So. 2d at 152). Here, there was no such agreement between Schlicher and a co-conspirator on the same side of the transaction.

The First District Court of Appeal has expanded the notion of a conspiracy to purchase drugs, although it is not clear how far. Pallin v. State, 965 So. 2d 1226 (Fla. 1st DCA 2007), the court upheld a conviction for conspiracy to purchase cocaine where the defendant knew that his suppliers were engaged in an ongoing agreement between themselves to purchase cocaine and then to supply the defendant with cocaine. Id. at 1227. “This relationship necessarily required [the defendant's] suppliers to purchase and possess cocaine so that he could then purchase or possess a smaller portion of the cocaine.” Id. The court determined that this was sufficient to prove that the defendant and his suppliers shared a common objective to purchase or possess cocaine with the intent to purchase. Id. The court reasoned that the defendant could not purchase cocaine from his suppliers unless his suppliers purchased that cocaine from someone else. Id. The court agreed with the view of the United States Court of Appeals for the Eighth Circuit that “`evidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of conspiracy to distribute.’” Id. at 1228 (citing United States v. Miller, 91 F.3d 1160, 1162 (8th Cir. 1996) (quoting United States v. Eneff, 79 F.3d 104, 105 (8th Cir. 1996))). The court then held that the evidence that the seller had sold resale quantity cocaine to the buyer on multiple occasions was sufficient to sustain the conviction for conspiracy to purchase cocaine. Id.

In plain language, the First District has created a rule of law that a repeat buyer and repeat seller almost always have an implicit agreement that the seller will continue to purchase drugs from his supplier so that he can continue to sell drugs to the buyer. This is a broad expansion of conspiracy, and we are unable to find any other Florida court that has applied the reasoning from Pallin. We do not have to decide whether to accept the reasoning from Pallin, however, because the State did not produce any evidence that Schlicher knew that Jose was engaged in an ongoing relationship with a supplier to purchase cocaine so that he could sell the cocaine to Schlicher. Moreover, the State never argued such a theory during the trial.

A detailed description of each recorded conversation between Schlicher and Jose that was introduced at trial and the undercover officers’ observations about those conversations would unduly burden this opinion. However, suffice it to say that viewing the evidence in the light most favorable to the State, we hold that the State did not produce sufficient evidence that Schlicher and Jose had an express or implied agreement to purchase cocaine, and that both shared the common intent to purchase cocaine. Rather, the State’s evidence established that the alleged co-conspirators had different criminal intents. Accordingly, the trial court erred in denying Schlicher’s motion for a judgment of acquittal on Counts 1-3 and 6-8, the conspiracy charges.

We also reverse Schlicher’s conviction and sentence on Count 5, in which he was charged with soliciting the purchase of cocaine on December 22, 2006. At trial, the State played a recorded conversation between Schlicher and Jose that took place on December 22, 2006. Schlicher called Jose several times and Jose did not answer his phone. When Schlicher finally reached Jose, they agreed to meet up around 1:00 p.m. At 4:16 p.m., Schlicher called Jose back and asked him “[w]hat’s the chances of you giving me some work until after — until Monday so that we don’t run out over this big weekend?” Jose responded, “[y]ou know I can’t do that bro.” A few hours later, Schlicher called Jose again and asked if Jose could “hook up eight ball powder” for him. Jose said “no” and Schlicher replied “Okay. I had to try. Thank you.” A detective from the Martin County Sheriff’s Office identified the voices in the recordings as those of Schlicher and Jose. He also testified that “work” was a code word meaning either the sale of cocaine or the cocaine itself, and that an “eight ball powder” is an eighth of an ounce of cocaine powder.

Viewing this evidence in the light most favorable to the State, there was no competent, substantial evidence that Schlicher solicited Jose to purchase cocaine. The trial court instructed the jury that, in order to prove solicitation of the purchase of cocaine, the State had to prove two elements beyond a reasonable doubt: (1) that Schlicher solicited another person or persons to commit the purchase of cocaine; and (2) that, during the solicitation, Schlicher commanded, encouraged, hired or requested another person or persons to engage in specific conduct which would constitute the commission of the purchase of cocaine or attempt to commit the purchase of cocaine. The State did produce evidence that Schlicher solicited the sale of cocaine, but this was not the crime with which Schlicher was charged in Count 5.

Affirmed in part; Reversed in part.

WARNER and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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The State of Florida, Appellant,
v.
John Stephen Walters, Appellee.

No. 3D07-2825

District Court of Appeal of Florida, Third District.

Opinion filed June 17, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Jorge Perez, Judge, Lower Tribunal No. 05-39171-A.

Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.

Rothman & Associates and Jeanne T. Melendez and David Rothman, for appellee.

Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.

ROTHENBERG, J.

The State appeals from a downward departure sentence imposed by the trial court after John Stephen Walters (“the defendant”) entered a guilty plea to one count of organized fraud in the first degree, one count of grand theft in the first degree, and fifty-two counts of money laundering in various degrees. We reverse.

The defendant, through one of his companies, A Auto Insurance Corp., was the seller involved in a December 2002 real estate closing. The defendant’s property, which was in foreclosure, was sold for $2 million, $1.059 million of which was due to Bank One, the holder of an outstanding mortgage. However, as a result of a falsified letter in the closing file, neither Bank One nor its law firm, Butler & Hosch, P.A., was aware of the closing.

Paul Menzel, who knew the defendant, was selected by the defendant as the closing agent. The title insurance company entrusted Menzel with delivering a $997,654.28 check made out to the trust account of the Butler & Hosch law firm, but instead of delivering the check to Butler & Hosch, Menzel delivered the check to the defendant. The defendant is not, and never was, associated with the Butler & Hosch law firm.

On February 3, 2003, the defendant created a Florida corporation named “Butler & Hosch Real Estate Corp.” The defendant then incorporated Butler & Hosch Corp. in Mississippi. The next day, February 7, the defendant opened four new bank accounts at Ocean Bank, one of which was named the “Butler & Hosch Corp. Operating Account.” There, he deposited the stolen $997,654.28. For the next six months, the defendant conducted more than fifty transactions, spending the money for his personal benefit. On August 7, 2003, the defendant transferred the remaining funds, $242,864.34, to one of his other companies’ accounts. The defendant was arrested in December 2005, and taken into custody.

The current victim in this case is Fidelity National Title Insurance Company, Title One (“Fidelity”), which informed the trial court through counsel that obtaining restitution was very important to Fidelity. From 2006 through October 2007, Fidelity, the State, and the defendant engaged in plea discussions. The record before this Court reflects that, for the most part, the negotiations were between the defendant and Fidelity, and focused on the payment of restitution and the defendant’s cooperation in providing information to Fidelity regarding other sums of money Fidelity was attempting to recover.

Despite these discussions, on September 12, 2007, the prosecutor assigned to the case informed the parties and the trial court that the State’s offer was six years in prison. Although defense counsel’s comments were not directed towards the Assistant State Attorney handling the case, he accused the State of negotiating in bad faith, stating that he and his client were led to believe that further incarceration could be avoided and therefore, he had not prepared the case for trial. The Assistant State Attorney advised the trial court that notations in his file made by a previous prosecutor indicated that a six-year sentence was contemplated to close out the case. The trial court reset the case for a status report in thirty days.

On October 12, 2007, the State informed the trial court that negotiations between the State and the defendant had been unsuccessful, it was withdrawing from all negotiations with the defendant, and all previous plea offers had been withdrawn.

At the subsequent hearing conducted on October 16, 2007, over the State’s objection, the defense introduced a series of e-mails generated by the State, Fidelity, and counsel for the defendant during previous plea discussions. The defendant argued that the facts of the case compelled a downward departure where the scoresheet minimum sentence was 108 years. The State objected to any below guidelines offer. The defendant entered a guilty plea to all counts charged— organized fraud, grand theft, and money laundering. The trial court imposed a downward departure sentence of six months in the county jail (time already served), a $200,000 down payment (made on October 15, 2007), fifteen years’ reporting probation during which the defendant must make quarterly restitution payments of $10,000, and a number of other special conditions. The trial court entered written reasons in support of the departure sentence, and this appeal followed.

A trial court’s determination of whether it could legally depart from the sentencing guidelines will be upheld on appeal if the trial court applied the correct rule of law and competent substantial evidence supports that determination. State v. Salgado, 948 So. 2d 12, 15 (Fla. 3d DCA 2006).¹ Here, the trial court provided the following statutory reasons in support of the downward departure sentence: (1) the offense was unsophisticated, isolated, and the defendant showed remorse; and (2) Fidelity’s need for restitution outweighs the need for incarceration. The trial court also based its decision upon its finding that:

It is apparent to the Court that [the defendant], like this Court, reasonably and justifiably relied upon the clear intent of the parties, as well as of the victim, that if a substantial portion of the restitution were raised and paid by the accused, he would not go back to jail.

Because the record does not support the two statutory reasons offered, and the justifiable reliance ground is based on inadmissible evidence, and is factually unsupported, we reverse.

THE FIRST STATUTORY GROUND FOR DEPARTURE

Section 921.0026(2)(j), Florida Statutes (2007), provides that where an offense was committed “in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse,” a downward departure from the sentencing guidelines is justified. This ground for departure is valid only where substantial competent evidence supports all three elements. Salgado, 948 So. 2d at 16. In this case, however, the record is devoid of any evidence in support of a finding that the defendant’s offenses were unsophisticated or isolated.

“[A] crime is committed in an unsophisticated manner when the acts constituting the crime are `artless, simple and not refined.’” Id. at 17 (quoting Staffney v. State, 826 So. 2d 509, 512-13 (Fla. 4th DCA 2002)). Here, the defendant pled guilty to organized fraud, grand theft, and money laundering— hardly the types of crimes characterized by artless, simple, or unrefined acts. At a minimum, the defendant’s offenses involved: (1) a complicated real estate transaction; (2) the recruitment and complicity of Menzel; (3) a falsified letter that kept Bank One and its representatives unaware of the closing; (4) the formation of a Florida corporation deliberately named to mislead the bank officers/employees called upon to clear the payment; (5) the filing for corporate status of the “Butler & Hosch Corp.” in Mississippi; (6) the opening of four bank accounts named to conceal the defendant’s crimes; (7) the illegal deposit of nearly $1 million into one of the accounts; and (8) the systematic drawing upon the stolen funds from the account while posing as a legitimate account holder. The record reflects that the defendant employed his business knowledge in a series of sophisticated and calculated steps to achieve his criminal ends. Thus, the trial court’s finding that “[t]here was nothing sophisticated about this case” has no support in the record, and borders on the preposterous.

Nor were these acts isolated. The defendant pled guilty to over fifty separate money laundering transactions over the course of more than six months. During that time, the defendant managed to spend over $700,000 of stolen funds for his personal benefit, drawing upon the account of his sham corporation. As a result, the trial court’s characterization of these facts as “essentially . . . spending the money [the defendant] and others stole” cannot stand.

Accordingly, due to the utter lack of evidentiary support for the trial court’s finding that the defendant’s crimes were unsophisticated and isolated, the trial court’s first reason does not justify the downward departure sentence imposed.

THE SECOND STATUTORY GROUND FOR DEPARTURE

A downward departure sentence is also justified where “[t]he need for payment of restitution to the victim outweighs the need for a prison sentence.” § 921.0026(2)(e), Fla. Stat. (2007). A downward departure based upon this ground requires evidence of the victim’s need, as opposed to a mere preference, State v. Quintanal, 791 So. 2d 23, 24 (Fla. 3d DCA 2001), and the trial court must consider the defendant’s ability to pay, as well as the impact of the plan on the victim.Demoss v. State, 843 So. 2d 309, 312 (Fla. 1st DCA 2003). Because no competent substantial evidence supports the trial court’s finding that Fidelity had a pressing need for restitution, no evidence indicates whether the defendant has the ability to make continued payments pursuant to the schedule, and no evidence reveals whether completion of the restitution payments would significantly affect Fidelity’s interests, under these circumstances, the downward departure ground provided in section 921.0026(2)(e) was improper.

$997,654.28 is an attention-grabbing amount of money. However, where the record does not reflect a pressing need for restitution, a downward departure sentence is not justified, and this Court is compelled to reverse. State v. Prasad, 889 So. 2d 204, 205 (Fla. 4th DCA 2004). Beyond the assertions of Fidelity’s counsel to the effect that restitution was very important, and the defendant’s incarceration was not desired, Fidelity did not show that the extent of the harm suffered as a result of the defendant’s crimes was greater than normally expected, or how restitution would operate to mitigate that harm. See id. (noting that a downward departure under section 921.0026(2)(e) requires a greater than normal harm and a showing that restitution could mitigate that harm). The record reflects that Fidelity has fully compensated the original victims in this case, making them whole, and Fidelity’s loss was not proven to be outside the realm of normal expectations. Therefore, Fidelity, a corporation in the business of planning for and managing economic losses, has, at best, expressed its preference for restitution, and a downward departure is not justified.²

In addition, because the record does not contain any evidence of the defendant’s ability to make continuing restitution payments, this downward departure sentence pursuant to section 921.0026(2)(e) must be reversed. In fact, the record evidence requires a finding to the contrary. When the defendant planned and carried out these crimes, his property was in foreclosure, he was in arrears in his child support obligations, he owed money to two different attorneys, and he was otherwise in debt.

The defendant and the trial court make much of the fact that the defendant was able to “raise” $200,000 in a little over a year to pay towards restitution.³ However, the record does not reveal whether this amount was “raised” out of previously stolen funds, a job, by selling some of the property obtained by use of the stolen proceeds, or through some other income source. Because the record is devoid of any evidence regarding the defendant’s ability to pay the restitution ordered, the trial court’s downward departure sentence pursuant to the second offered ground is not factually justified. See Demoss, 843 So. 2d 309 at 312 (holding that when considering the efficacy of restitution, the trial court must evaluate the defendant’s ability to pay). We also note that the defendant did not testify and that the unsworn statements of counsel do not constitute evidence. See State v. Champion, 898 So. 2d 1111, 1112 (Fla. 2d DCA 2005) (holding that counsel’s unsworn statements cannot support a downward departure).

THE JUSTIFIABLE RELIANCE ISSUE

At the October 16 hearing in this case, the defendant sought to introduce into evidence a series of e-mails exchanged between the State, counsel for the defendant, and Fidelity’s counsel to support his argument that throughout plea discussions, the State led the defendant to believe that no further incarceration was contemplated, and that restitution was the predominant goal of the State at sentencing. The State immediately objected to the introduction of these e-mails, arguing that they were irrelevant, and the State should not be penalized for pursuing plea negotiations prior to sentencing. Over the State’s objection, the trial court allowed the e-mails into evidence. The State argues in this appeal that the introduction of the e-mails was error. We agree.

First, and contrary to the defendant’s argument, even a cursory review of the hearing transcript reflects that the State preserved this issue for appellate review. Second, there is no question as to the inadmissibility of the e-mails, which contained statements from each of the parties regarding proposed sentencing frameworks, counter-proposals, and other concerns. Section 90.410, Florida Statutes (2007), provides that “[e]vidence of statements made in connection with any of the pleas or offers is inadmissible” outside of perjury/false statement prosecutions. While statements of offers made during plea negotiations may be admitted to reveal the bias of a non-party witness, Cruz v. State, 437 So. 2d 692, 695 (Fla. 1st DCA 1983), disapproved on other grounds by Edwards v. State, 548 So. 2d 656 (Fla. 1989), the law forbids the introduction of statements made by a party (here, the State) in order to bind that party to a statement or offer made prior to reaching an agreement. Thus, the trial court erred in admitting evidence of plea negotiations in the form of e-mails exchanged between the parties.

Nevertheless, even when read in the light most favorable to the defendant, the e-mails in the record merely show that negotiations were primarily between defense counsel and Fidelity and that the terms agreed to by Fidelity and the defendant were not ultimately accepted by the State. The record, including the erroneously admitted e-mails, do not reflect, as the trial court found, that the State was in “complete accord” with the concept that Fidelity’s need for restitution greatly outweighed the need for imprisonment, nor the argument that the defendant and his counsel justifiably relied upon the State’s representations that the case would resolve without additional jail time being imposed.

The record contains the transcript of a status hearing conducted on August 7, 2007, which clearly reflects that almost two years after the defendant’s arrest, no agreement had been reached on the case and that the State was seeking prison time. In response to the trial court’s inquiry on the status of the case and whether the parties could resolve the case, defense counsel responded as follows:

Well, typically the alleged victim would like to have their money. We think we can apiece [sic] that aspect. The State on the other hand would like to have blood. We don’t know if we can apiece [sic] the State on that. They want prison time. If we can resolve this case, we will know pretty soon. I would suspect we will know in two weeks.

(Emphasis added). Based upon this representation, the trial court left the case on its September 12, 2007 “sounding” calendar and September 24, 2007 trial calendar.

The August 8, 2007 e-mail generated the following day was sent by defense counsel to counsel for Fidelity and states that the prosecutor assigned to the case agreed to allow defense counsel and counsel for Fidelity to work towards a possible resolution of the criminal and civil cases, and if they were able to agree on a possible resolution, they would schedule a meeting with the prosecutor to see if the criminal case could be worked out. In the e-mail, defense counsel outlined his proposed resolution of the two cases.

The subsequent e-mails between counsel for the defendant and Fidelity reflect their ongoing discussions. Interestingly, counsel for Fidelity cautions counsel for the defendant that their plea discussions are “privileged and can not be used in any state, federal, civil or criminal, discovery, pre-trial, trial, or appellate proceeding for any purpose.”

At the September 12, 2007 “sounding,” when asked about the status of the case, defense counsel informed the trial court that while he and Fidelity’s counsel appeared to be in agreement, the State’s plea offer was six years incarceration and he was not ready for trial. As detailed earlier, the prosecutor stated that their prior negotiations did not result in a plea offer by the State. The trial court set the case for another status report in thirty days.

On October 12, 2007, the prosecutor reminded the trial court that the State had previously extended a six-year plea offer to the defendant, which did not result in an agreement. The State then informed the trial court that all plea offers were being withdrawn, and the State was withdrawing from further plea negotiations with the defendant. Both counsel for the defendant and Fidelity addressed the trial court, outlined how, by agreement, they proposed to resolve the case, and urged the trial court to accept their negotiated plea. The State objected, told the trial court that the defendant scored 108 years, reminded the trial court that it had withdrawn from plea negotiations, and argued that if the trial court imposed a sentence below the guidelines, it would be an illegal sentence. The matter was set for the following week for “report re: plea.”

Thus, the record in this case, including the inadmissible e-mails, reflects that even as late as August 7, 2007, it was clear that the State was seeking prison time to resolve the case. Although discussions continued after the August 7, 2007 hearing, the State made it clear on October 12, 2007, that no agreement had been reached and it was withdrawing from further negotiations with the defendant. The defendant’s claim, and the trial court’s finding of justifiable reliance is, therefore, unsupported by the record.

Moreover, the attorneys involved in this case were well-aware that suggestions, proposals, and other statements exchanged during plea negotiations are not binding until the parties finalize their bargain, which without question, did not occur in this case. Accordingly, the trial court’s finding that the defendant justifiably relied upon certain representations made by the State during the negotiation process is devoid of support of any kind.

CONCLUSION

The two statutory grounds for a downward departure provided by the trial court are simply not supported by the record. The crimes involved in this case were highly sophisticated, not isolated, and the corporate victim in this case showed a mere business preference, not a need, for restitution. The record basis for the trial court’s finding that the defendant justifiably relied upon the State’s position during plea negotiations consisted of a series of wholly inadmissible e-mail messages exchanged between the parties, and the content of those messages, even if properly considered, does not evidence justifiable reliance.

Therefore, we hold that the downward departure sentence imposed in this case is not factually justified. We remand for the entry of a guidelines sentence, or in the alternative, the withdrawal of the defendant’s plea.

Reversed.

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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Nelson R. Rodriguez, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-2414

District Court of Appeal of Florida, Third District.

Opinion filed June 17, 2009.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge, Lower Tribunal No. 05-38046.

Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Before COPE, WELLS, and SHEPHERD, JJ.

PER CURIAM.

Nelson R. Rodriguez appeals his convictions for one count of sexual battery on a child under the age of twelve and one count of sexual activity with a child by a person in familial or custodial authority. The appellant requests that we find trial counsel to have been ineffective for failing to object to the introduction of certain collateral crimes evidence, and failing to move for a mistrial. We decline to entertain these claims on direct appeal. See Smith v. State, 998 So. 2d 516, 522-23 (Fla. 2008); Antunes-Salgado v. State, 987 So. 2d 222, 224-25 (Fla. 2d DCA 2008).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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

No. 4D07-1614.

District Court of Appeal of Florida, Fourth District.

June 17, 2009.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County, Larry Schack, Judge, L.T. Case No. 432005-CF001417A.

Deana K. Marshall of the Law Office of Deana K. Marshall, P.A., Riverview, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

In appealing his conviction for grand theft, the appellant raises multiple issues of error. Only three issues merit discussion. The appellant claims that he could not be convicted of the crime of grand theft in excess of $100,000 because the theft consisted of two separate transactions each of which was less than $100,000, and the information did not allege that they were part of a scheme or course of conduct. We hold that he waived the defect in the information by not raising it to the trial court. Second, he contends that the state did not prove an intent to steal, but we conclude that the state presented sufficient evidence to support a felonious intent. Finally, he maintains that the court ordered restitution in excess of the victim’s loss. However, not only did he agree to the restitution amount, but the evidence did not show that the victim received excessive compensation. Therefore, there is no error. We affirm.

The appellant, Sebastiano, convinced the victim, Sclafani, to purchase six lots in a subdivision for $90,000. Sebastiano’s company, Three Golden Holdings, together with Leo Cueto and Joan Rogers, owned lots in the subdivision. Sclafani wrote a check to Sebastiano for $90,000, and Sebastiano told him that he would receive warranty deeds to the lots within two weeks. When the deeds did not arrive, Sebastiano gave Sclafani various excuses. Sebastiano then interested Sclafani in a seventh lot, for which Sclafani gave Sebastiano a check for $37,000, with a notation of the lot and block number. He told Sclafani that the lot could be “flipped” for $75,000 immediately. Nine months later, and after multiple excuses, Sebastiano gave Sclafani seven quit-claim deeds to the lots, even though he had promised warranty deeds.

Sclafani discovered that of the original six lots owned by Three Golden Holdings, five had been transferred to Cueto several days after Sclafani had given the $90,000 check to Sebastiano. However, Sebastiano received all of the money himself, Sclafani’s check having been made out to Sebastiano personally. Sclafani called Sebastiano, who promised to correct the situation, but he never did. Nearly a year after he had given Sebastiano the first check, Sclafani contacted law enforcement which led to Sebastiano’s arrest for grand theft and organized fraud.

As part of its case, the state showed that another individual actually owned the lot for which Sclafani paid $37,000. Sebastiano had tried to purchase the lot for $15,000 around the time that Sclafani gave him the check for the same lot. Sebastiano could not complete the purchase and a real estate friend of Sebastiano’s actually purchased the lot. Sebastiano did not own the lot when he transferred it to Sclafani.

On the defense side, Leo Cueto, Sebastiano’s partner in the subdivision, testified. He and Sebastiano owned many lots together. The lots for which Sclafani paid $90,000 were transferred to Cueto to protect them from a potential judgment against Three Golden Holdings. He and Sebastiano agreed that they both continued to own 50% each of the lots, but from the recorded deeds it appeared that Cueto owned them.

Sebastiano testified that he had found the subdivision lots which were owned by TransAmerica Corporation. He discovered that a judgment had been recorded against the lots but it would expire, if not renewed in September 2005. He purchased the lots from TransAmerica and the next day sold them to Sclafani. He intended to give Sclafani a quitclaim deed to the lots when the judgment expired, some eleven months later. As to the lot Sclafani purchased for $37,000, Sebastiano claimed that Sclafani had written down the wrong lot on the check. When he discovered the mistake, he tried to offer a corrective deed or a refund to Sclafani, but he refused.

The trial judge heard the evidence in a non-jury trial. Based upon the evidence presented, he found Sebastiano guilty on both charges. At sentencing, Sebastiano agreed to a restitution of $133,101.69, which represented the $127,000 that Sclafani paid plus his attorney’s fees. The court sentenced Sebastiano to fifteen years in prison on the organized fraud count and ten years of probation on the grand theft count. When the state suggested that sentencing on both charges could violate double jeopardy, the state chose to proceed on the grand theft charge, and the court sentenced Sebastiano to fifteen years’ imprisonment followed by ten years’ probation.

Sebastiano moved to mitigate his sentence shortly after sentencing. He also moved to correct an illegal sentence. As to mitigation, Sebastiano argued for a lesser sentence, because he had already paid the restitution in full. As to the illegal sentence, he argued that Sclafani had received one lot, for which Sebastiano should have been given credit on restitution. At the hearing Sclafani agreed to transfer the lot back to Sebastiano. The trial court denied the motion to correct, concluding that Sebastiano had not shown the value of the lot such that it could be deducted from the restitution amount. However, the court did mitigate his sentence to ten years in prison followed by probation. Sebastiano appeals.

Sebastiano argues for the first time in his initial brief that the court could not adjudicate him guilty of grand theft of property in excess of $100,000, because the evidence at trial proved that the theft consisted of two separate transactions, neither of which exceeded $100,000. The state, on the other hand, notes that the conduct constituted a continuing “scheme or course of conduct,” as is evident from the trial court’s finding him guilty of organized fraud, which also requires an ongoing scheme. Sebastiano responds that the information did not charge a “scheme or course of conduct.” State v. Davis, 890 So. 2d 1242 (Fla. 4th DCA 2005). We hold that the issue was not properly preserved, because it involves a technical defect in the information, which could have been corrected had it been properly raised at trial. Further, the evidence showed that Sebastiano engaged in a scheme or course of conduct in which he managed to take more than $100,000 from Sclafani.

The theft statute provides in section 812.012(10)(c), Florida Statutes (2005), that the value of separate properties involved in thefts committed in “one scheme or course of conduct” may be aggregated in determining the grade of the offense. Sebastiano was charged with both organized fraud and grand theft. Count I, the organized fraud count, charged:

Organized Fraud-$50,000 or More

October 20, 2004 through August 17, 2005, James Sebastiano did engage in a systematic, ongoing course of conduct with intent to defraud one or more persons . . . .

Count II, the first-degree grand theft count, charged: October 20, 2004, through August 17, 2005, James Sebastiano did unlawfully and knowingly obtain or use or endeavor to obtain or use the property of another, to wit: U.S. Currency, the property of Joseph Sclafani as owner or custodian, of the value of $100,000 or more.

Sebastiano was charged and tried on both counts, and the trial court returned a guilty verdict on both, but later determined that Sebastiano could not be convicted of both because it would be a double jeopardy violation. Pizzo v. State, 945 So. 2d 1203 (Fla. 2006) (double jeopardy precludes convictions for both grand theft and organized fraud based on the same conduct). Based on this, the trial judge adjudicated Sebastiano only on the grand theft count. At no point did Sebastiano move for judgment of acquittal or for dismissal of the information based upon the failure to include the term “scheme or course of conduct.”

We consider this a pleading issue, and Sebastiano has waived this defect. Florida Rule of Criminal Procedure 3.190(c) provides:

Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived.

(emphasis added). The evidence sufficiently showed a scheme or course of conduct permissible to aggregate the two transactions for purposes of the theft statute. The court found such a scheme by also finding Sebastiano guilty of organized fraud, which also required an ongoing course of conduct. Therefore, this is not a case where the evidence failed to prove the crime. It is merely a pleading defect, which was waived.

State v. Davis, 890 So. 2d 1242 (Fla. 4th DCA 2005), is distinguishable because of its procedural posture. There, the defendant was charged with one count of grand theft in the third degree (which requires proof of an amount over $300) based on allegations that he took money from a tenant twice, but neither time amounted to $300. Davis filed a motion to dismiss on the ground that the undisputed evidence showed two separate thefts neither of which exceeded $300. The trial court granted dismissal. The state appealed, and we affirmed, finding that absent an allegation in the charging document that both thefts occurred as part of the same scheme or course of conduct, the undisputed facts did not constitute a prima facie case of grand theft.

In this case, no motion to dismiss was made. Unlike Davis, the evidence in this case showed a course of conduct in Sebastiano’s dealings with Sclafani sufficient to aggregate the two transactions. Under these facts, the defendant waived the defect in the information and cannot be heard to complain on appeal.

Sebastiano argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to prove the intent element of grand theft. Under section 812.014, Florida Statutes (2005),¹ the state was required to prove that Sebastiano knowingly obtained or used, or endeavored to obtain or use, the property of Sclafani with the intent to, either temporarily or permanently, deprive Sclafani of the right to the property or the benefit of the property, or appropriate the property to his own use.

“[I]ntent, being a state of mind, is rarely if ever susceptible of direct proof. Almost inevitably, as here, it must be shown solely by circumstantial evidence.” Grover v. State, 581 So. 2d 1379, 1380 (Fla. 4th DCA 1991). Intent is a question for the trier of fact to decide based upon all factual inferences. Method v. State, 920 So. 2d 141, 143 (Fla. 4th DCA 2006); Rosen v. State, 940 So. 2d 1155, 1160 (Fla. 5th DCA 2006). Often, circumstantial evidence is the only way to prove intent. Sewall v. State, 783 So. 2d 1171 (Fla. 5th DCA 2001).

The state offered evidence which was inconsistent with Sebastiano’s theory of innocence. The state is not required to conclusively rebut every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Parker v. State, 795 So. 2d 1096, 1099 (Fla. 4th DCA 2001). Once that threshold burden is met, it is the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. State v. Law, 559 So. 2d 187, 189 (Fla. 1989).

There was sufficient evidence to show intent on Sebastiano’s part to deprive Sclafani of his property, at the very least temporarily. Sclafani testified that Sebastiano had agreed to sell him six lots on which he would receive warranty deeds within two weeks. Three Golden Holdings had purchased those lots one day before by quitclaim deed, and Sebastiano knew that a judgment clouded their title—one that would not expire for almost another year. Sclafani wrote a check for $90,000 in the name of James Sebastiano, not Three Golden Holdings, even though the corporation purchased the property from TransAmerica. Sebastiano’s felonious intent was clear on October 20, 2004, when he had no clear title to the TransAmerica lots to transfer to Sclafani. Additionally, rather than giving Sclafani the deeds and telling him to hold them until the Department of Professional Regulation’s judgment expired, Sebastiano instead transferred the title to the properties owned by Three Golden Holdings to Cueto, as trustee, in order to protect them from a judgment against his own corporation. Five of the six lots had been “moved” to Cueto, as trustee, seven days after Sclafani had given Sebastiano the check for $90,000, so the deeds given to Sclafani were worthless as to five of the properties.

As to the other transaction, Sebastiano did not own, nor did he even have a contract on, the lot he “sold” to Sclafani for $37,000, again promising that Sclafani would receive a warranty deed shortly. Sebastiano knew he did not have the resources to purchase the lot. All this is circumstantial evidence that shows an intent to permanently or at least temporarily deprive Sclafani of his property. Although Sebastiano presented his own version of events, the foregoing facts are inconsistent with his contention that this was merely a business deal gone bad. The trial court did not believe his evidence.

Finally, Sebastiano claims that the court erred in refusing to deduct $15,000 from the amount of his restitution payment, because Sclafani actually received one lot. However, he stipulated to the amount of restitution. While Sclafani agreed to quitclaim the single lot to Sebastiano’s holding company, Sebastiano refused to accept the deed unless Sclafani agreed to settle the civil action he had filed against Sebastiano.

The trial court denied any correction of the restitution amount, because it determined that the evidence presented did not prove that the lot was worth $15,000. We agree that the total evidence presented both at trial and at the restitution hearing provides competent substantial evidence to uphold the trial court’s determination. Even assuming that the land was worth $15,000, Sclafani received only a quitclaim deed to the property, not the warranty deed he was promised. There is no evidence that he has clear title to the property and has an interest valued at $15,000. Given the fact that there was a judgment against the property when Sebastiano’s company purchased it, we cannot assume that Sclafani has clear title to the property at this point. We cannot say that the restitution amount was in excess of the damages suffered by Sclafani. Moreover, Sclafani has an ongoing civil dispute with Sebastiano over the lots. The amount of any restitution may be set off against any civil recovery. Kirby v. State, 863 So. 2d 238 (Fla. 2003). Therefore, if Sebastiano proves in that case the actual value of the lot to Sclafani, the amount can be set off against any civil recovery.

Sebastiano’s brief raises eleven other issues arising from this non-jury trial. These remaining issues are meritless, harmless, or not properly preserved.

Affirmed.

STEVENSON and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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SCOTT WYNKOOP, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-1467.

District Court of Appeal of Florida, Fourth District.

June 17, 2009.

Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Lucy Chernow Brown, Judge, L.T. Case No. 05-11926 CFA02.

Richard G. Bartmon of Law Office of Richard G. Bartmon, Boca Raton, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant, Scott Wynkoop, was charged by information with manslaughter by culpable negligence and vehicular homicide of his nine-year-old stepdaughter, Samantha Rosales, for events occurring on May 17, 2005. Following a jury trial, Wynkoop was convicted of both charges. The trial court entered a non-statutory downward departure sentence of ten years in prison, suspended, with ten years of probation being imposed. Wynkoop appeals his conviction, and the State cross-appeals the sentence. We reverse as to both.

On the afternoon of May 17, 2005, Wynkoop picked up Samantha from her aftercare program. Before driving home, Wynkoop stopped at Publix. During the ride home, Samantha sat in the backseat on the driver’s side of Wynkoop’s vehicle. Wynkoop drove north on Dixie Highway in the same direction as an approaching freight train. The windows of Wynkoop’s vehicle were up, the radio was on, and Wynkoop was listening to Samantha talk.

The freight train, comprised of 138 rock hauling cars pulled by three engines, was travelling north on the railroad tracks at forty-five miles per hour parallel to the road Wynkoop was on. As the train approached the crossing at Hidden Valley Boulevard, the engineer sounded the horn four times. Some witnesses recalled hearing the sound of the horn and others did not. The gate was down blocking the two westbound lanes of traffic, and the lights on the gate were flashing. Wynkoop was familiar with the area because he lived nearby on Hidden Valley Boulevard.

Wynkoop made a left-hand turn, crossed a broken yellow lane marker, and drove around the gate to cross the railroad crossing. As Wynkoop crossed the railroad tracks, the train struck his vehicle from behind causing his car to spin across the tracks, striking a railroad battery box and a signal box before stopping. Wynkoop climbed out of the vehicle having sustained minor injuries. Samantha died having sustained a broken collar bone, broken ribs, a torn spleen, injury to her lungs, injury to her liver, brain injuries, and internal bleeding.

Prior to trial, the State filed a motion in limine to preclude irrelevant defense evidence. In its motion, the State maintained that Wynkoop had attempted to “beat” the train by weaving around the closed railroad gates, ignoring the red flashing lights and the bells associated with the gates. The State argued that expert testimony regarding whether the light at the intersection was green allowing Wynkoop to turn left, whether the gate at the railroad crossing was too short, whether the distance between Dixie Highway and the railroad crossing was too short, and whether the train’s horn sounded long enough under the applicable regulations should not be admitted. The railroad crossing at Hidden Valley Boulevard met all local, state, and federal requirements, had never been determined to be an inherently dangerous crossing, and had never been the site of prior fatalities. The State pointed out that evidence of the railroad’s negligence was inadmissible unless the railroad’s negligence was a superseding, intervening cause of the crash.

Wynkoop filed a motion in opposition to the State’s motion to preclude irrelevant evidence in which he argued that but for the alleged defects in the railroad crossing, the accident and Samantha’s death would never have occurred, and thus, that expert testimony and other evidence must be admitted in order for him to present his defense. Specifically, Wynkoop argued that the evidence would show that the turn path at the intersection “funneled” his vehicle into an area not blocked by the railroad crossing gate; that the green light at the intersection allowed him to turn left; that he did not hear a train horn sound before the accident; and that because of the defects he had a split second to avoid the train.

Following jury selection, the trial judge granted the State’s motion. The trial judge found that Wynkoop was entitled to the defenses he listed in his motion in opposition but that expert testimony was not warranted. The court found that the two most important facts for Wynkoop — that the light was green allowing him to make the left turn and that the railroad gate was too short to completely cover both westbound lanes of traffic — were not in dispute. The court also determined that expert testimony regarding these facts was not admissible because whether the defenses were proven was a jury issue and the design of the crossing was clearly not the sole proximate cause of the accident. Expert testimony which drew conclusions about whether the design of the railroad crossing met state and federal regulations was not necessary.

The trial court allowed Wynkoop to make a proffer of evidence. Wynkoop’s written proffer listed three expert witnesses: Harold Rugh, James Sottile, and Rick Swope.

Rugh worked for twenty-five years as a locomotive engineer, trainmaster, master mechanic, equipment inspector and chief inspector. Rugh worked an additional twenty-six years with the Federal Railway Administration investigating accidents and developing, enforcing, and interpreting federal regulations. During his fifty-two years of experience, Rugh had instructed engineers on the proper sounding of train horns “thousands of times,” had inspected train horns approximately thirty times a week for twenty-five years, and had read event data recorders “hundreds of times.” Rugh’s examination of the event data recorder from the train which struck Wynkoop revealed that the train engineer had sounded four blasts which were less than half as long as they should have been and were separated by silences five times as long as they should have been. However, as the State’s expert testified, the black box only records how long the horn was activated but in reality horns can continue to sound after they are done being activated. Rugh concluded that the horn blasts were not sufficiently loud, lengthy or continuous enough to alert drivers at the crossing. Finally, Rugh believed that the duration of the soundings violated Florida law and federal regulations and that “[b]ecause of these short soundings, the child is dead.”

Sottile worked in the railroad industry for forty years between the signal department of the Long Island Railway and the Federal Railroad Authority as a train signal and control inspector. Sottile proffered that drivers in the northbound and southbound lanes on Dixie Highway had green lights allowing them to turn toward the crossing even as the train approached. The green lights meant there was not total preemption — all traffic stopped in all directions — at the intersection which violated Florida law and would have prevented Wynkoop’s accident.

Sottile and Swope explained that the gate arm which descended at the Hidden Valley crossing did not entirely block both westbound lanes and that this defect in conjunction with the lack of a median before the crossing allowed a vehicle to pass through the crossing. Sottile concluded that a median would have prevented Wynkoop’s vehicle from entering the crossing and that the lack of a median together with the shortness of the gate arm contributed to Wynkoop’s accident. Sottile stated that the length of the gate arm violated federal regulations.

Finally, Swope found that the road lines east of the Hidden Valley train crossing would allow and guide a driver to drive around the gate arm into the crossing. Swope concluded that there was no physical evidence that Wynkoop was attempting to beat the train.

Wynkoop requested permission to cross-examine the State’s homicide investigator regarding whether he had considered an unsolicited letter from Paul Bodner, an owner of a consulting firm, which stated that the railroad crossing was unsafe and in violation of state and federal regulations. Defense counsel argued that it was relevant to show that the investigator’s failure to “follow up” on the letter indicated the inadequacy of his investigation. The State countered that whether the investigator followed up on the letter was irrelevant because the investigator had been assured by the authorities that the crossing met all applicable regulations, the letter was unsolicited, and the investigator believed Bodner was a “kook.” The trial court ruled that the cross-examination would not be allowed per its earlier ruling excluding evidence.

The supervisor of Boca Raton’s traffic signal department testified that when a train passed through the Hidden Valley Boulevard crossing, the traffic lights for Dixie Highway remained solid green. He explained that if the light went to red under such circumstances, it would cause conflicting signals and rear-end accidents and would limit the effectiveness of traffic control because people would eventually start running the light. Defense counsel asked the supervisor if there was any reason not to stop traffic in all directions by total preemption, and the supervisor replied that it would go against the expectancy of the drivers, but that it was possible to do. Finally, defense counsel asked the supervisor if there was a mechanical, technical, or engineering reason to not stop traffic in all directions when a train is crossing, and the supervisor replied that it could be done, but it was not common practice. Defense counsel argued that the supervisor’s testimony “opened the door” for defense evidence regarding proper traffic signalization and total preemption at the subject intersection. The trial court rejected defense counsel’s argument, explained that he could not open his own door, and reiterated its earlier ruling explaining that expert testimony was not admissible because it would not prove an intervening superseding cause of the accident.

A jury found Wynkoop guilty as charged. Prior to sentencing, the State nolle prossed the vehicular homicide charge. The trial court adjudicated Wynkoop guilty of manslaughter by culpable negligence and issued a suspended sentence of ten years imprisonment with a probationary term of ten years. As a special condition of probation, the court required Wynkoop to serve 364 days in jail on weekends. This condition was later modified to require Wynkoop to serve 364 consecutive days in jail. Wynkoop now timely appeals and the State cross-appeals.

Wynkoop argues the trial court erred in granting the State’s motion in limine to exclude defense evidence that the design of the railroad crossing and the engineer’s failure to blow the train horn in keeping with regulations caused the accident. Wynkoop asserts that the court’s decision violated his Sixth Amendment right to present a defense. The State replies that the evidence was properly excluded because third party negligence was not the sole proximate cause of the accident and cross-appeals the trial court’s determination that Wynkoop was entitled to a downward departure.

A trial court’s decision regarding the admissibility and scope of expert testimony is reviewed for an abuse of discretion. Simmons v. State, 934 So. 2d 1100, 1116 (Fla. 2006).

The State relies, in part, on Filmon v. State, 336 So. 2d 586, 591 (Fla. 1976), to support its proposition that, unless it was the sole proximate cause of the accident, neither the negligence of the deceased nor that of a third party is a proper defense to manslaughter based on culpable negligence in operating a motor vehicle. In Filmon, defendant argued that the court erred in refusing to instruct the jury regarding the left-hand turn statute because the jury should have considered the statute and decedent’s conduct before determining whether the defendant’s conduct was the proximate cause of the decedent’s demise. Id. The Florida Supreme Court held that the trial court had not erred in refusing to instruct the jury regarding the left-hand turn statute because “the conduct of the decedents or the decedents’ driver could only be controlling if it were the Sole proximate cause of the accident.” Id.

Other cases have reiterated the Filmon Court’s holding. Keller v. State, 849 So. 2d 385, 387 (Fla. 2d DCA 2003) (“In a vehicular homicide prosecution, evidence of a victim’s negligence is relevant only if the victim’s act was the sole proximate cause of the accident that caused the victim’s death”); Brimmer v. State, 541 So. 2d 1307, 1308 (Fla. 4th DCA 1989)(finding no error in trial court’s refusal to instruct the jury that the decedent could have been the sole cause of the accident where there was no “reasonable view of the evidence upon which a jury could conclude that the victim’s act of failing to yield the right of way was the sole proximate cause of the accident”). Finally, it has been noted that cases where the decedent’s conduct is admissible as a defense have all involved circumstances where the deceased’s conduct alone caused the accident. Reaves v. State, 979 So. 2d 1066, 1069 (Fla. 1st DCA 2008).

In the present case, the trial court found that any third party negligence in the design of the railroad crossing or operation of the train was not the sole proximate cause of the accident and Samantha’s death, and thus, that evidence of that negligence was inadmissible. However, the present case does not fall squarely within the holdings of Filmon and its progeny because the evidence at issue here involved expert testimony regarding the acts or omissions of third parties whereas the Filmon line of cases address the issue of whether evidence is admissible to show the negligence of the decedent.

As the State points out, Wynkoop was not entirely deprived of his ability to present a defense because of the court’s ruling. Instead, he was denied the ability to present expert testimony. Wynkoop elicited the testimony of an eyewitness who observed cars crossing the broken yellow line when turning left, an expert witness who testified regarding the train’s event data recorder, eyewitnesses who testified that Wynkoop’s light was green and there was no red turn arrow when Wynkoop made the left turn into the crossing, eyewitnesses who did not recall hearing the train’s horn, and witnesses who testified that no second gate or median prevented a driver from navigating around the gate blocking the westbound traffic. Finally, photographs and diagrams of the intersection and the traffic signalization plan for the intersection were admitted into evidence allowing the jury to appreciate the design of the subject railroad crossing.

Thus, the jury was presented with evidence of the design of the railroad crossing and the operation of the train so that they could consider Wynkoop’s defenses. Wynkoop acknowledges that lay testimony was elicited regarding the design of the crossing and operation of the train horn but argues that the essence of his defense was undermined because his expert witnesses were not allowed to testify regarding the causal link between those conditions and the accident.

Wynkoop asserts that the excluded expert evidence regarding the design of the crossing and the operation of the train horn raised reasonable doubt as to whether his conduct caused the accident, and thus, should have been admitted. Here, Wynkoop relies heavily on Florida courts’ broad policy that “where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.” Donohue v. State, 801 So. 2d 124, 126 (Fla. 4th DCA 2001)(quoting Rivera v. State, 561 So.2d 536, 539 (Fla.1990)).

In Donohue, the defendant was found guilty of second degree murder and robbery after he allegedly beat a man to death and stole his belongings. 801 So. 2d at 124-25. Undisputed evidence showed that paramedics unsuccessfully attempted to intubate the victim. When the victim arrived at the hospital, a physician determined that the paramedics had inserted the tube down the esophagus instead of the trachea causing asphyxiation. The trial court refused to allow a defense expert to testify that the mal-intubation could have caused the victim’s death. Id. at 125. This court held that the trial court erred in refusing to allow such evidence because limiting the admissibility of evidence of maltreatment to cases in which that treatment was the sole cause of the death would hinder Florida’s broad policy of admitting evidence which tends to raise reasonable doubt. Id. at 126.

We find Donohue particularly instructive in the present case. By refusing to allow defense expert testimony regarding the design of the subject railroad crossing and how that design may have contributed to the accident, the trial court infringed on Wynkoop’s right to present a theory of defense and to hold the State to its burden of proving beyond a reasonable doubt that his actions rose to the level of culpable negligence. While the trial court may certainly place reasonable parameters on the scope of expert evidence, to entirely exclude such evidence in this case violates the defendant’s Sixth Amendment rights.

The State cross-appeals the trial court’s issuance of a downward departure sentence arguing that it is not supported by legal grounds. Whether there is a valid legal ground for a downward departure is a question of law, to be reviewed de novo. State v. Walker, 923 So. 2d 1262, 1264 (Fla. 1st DCA 2006). A trial court’s legal ground for a departure must be valid and supported by competent substantial evidence. State v. Schillaci, 767 So. 2d 598, 600 (Fla. 4th DCA 2000). “A departure from the recommended guidelines sentence is discouraged unless there are circumstances or factors which reasonably justify the departure. . . .” § 921.0016(2), Fla. Stat.

Wynkoop faced a minimum sentence of 111.15 months. At the sentencing hearing, Samantha’s mother and Wynkoop’s wife, Marissa Wynkoop testified. Marissa begged the court not to sentence Wynkoop to prison time because she had lost her mother, her father, and her daughter, and her brother was in serious trouble. Marissa explained that Wynkoop was her emotional support. Wynkoop wrote a letter to the court in which he explained that if he served prison time, his wife and his mother would lose their homes and would otherwise be in financial turmoil.

The trial court found that none of the grounds argued in Wynkoop’s motion applied but that a nonstatutory mitigator required a downward departure. Specifically, the court found that “the interest of the victim as represented by the mother” supported the departure and “the evidence is that if Scott Wynkoop goes to prison right now, the mother will suffer, probably lose her home and suffer a number of other ways emotionally and otherwise.” The court imposed a suspended sentence of ten years imprisonment with a probationary term of ten years. As a special condition, the court required Wynkoop to serve 364 days in jail on the weekends — a condition which was later modified to be served as 364 consecutive days instead of weekends.

The case which most clearly demonstrates the issue argued by the State is Rafferty v. State, 799 So. 2d 243 (Fla. 2d DCA 2001), in which the defendant was convicted of DUI manslaughter and DUI serious bodily injury after he drove while intoxicated and caused an accident resulting in the death of his six-year-old son and paralysis of his fiancee. Id. at 244. The Second District held that the trial court erred in granting Rafferty’s motion for a downward departure on the basis that his child had died, his fiancee had been severely injured, and the family needed his financial support. Id. at 248. The court pointed out that the legislature did not intend for sentences to be decreased when the victims are family or loved ones and that “it would not be good policy for the legislature to punish those with families to support less than those without families.” Id.

A trial court may not issue a downward departure on the basis it did in the present case. However, should Wynkoop be convicted again, the court may reconsider whether any of the statutory parameters justify such a departure. Finally, while we recognize that granting a downward departure based on family suffering is not currently permissible, we think it appropriate for the legislature to consider whether the applicable statute should include these grounds in a tragic case such as this.

Reversed and remanded for proceedings consistent with this opinion.

STEVENSON and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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James Russell Ward, Appellant,
v.
The State of Florida, Appellee.

No. 3D05-685

District Court of Appeal of Florida, Third District.

Opinion filed June 17, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge, Lower Tribunal No. 02-34653.

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

Bill McCollum, Attorney General, and Michael E. Hantman and Paulette R. Taylor, Assistant Attorneys General, for appellee.

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

ON REMAND FROM THE SUPREME COURT OF FLORIDA

SHEPHERD, J.

We consider on remand our opinion Ward v. State, 965 So. 2d 308 (Fla. 3d DCA 2007), which the Florida Supreme Court quashed following its decision Ward v. State, 7 So. 3d 520 (Fla. 2009). As ordered by the supreme court, we apply its decisionYisrael v. State, 993 So. 2d 952 (Fla. 2008) (Yisrael II), to the facts of this case.

In Yisrael II, the supreme court disapproved of the holding Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006), that a Department of Correction’s letter alone was sufficient evidence to sentence Yisrael as a prison releasee reoffender. See Yisrael II, 993 So. 2d at 959. Given the supreme court’s reasoning in Yisrael II, we now reverse Ward’s sentence as a prison releasee reoffender because a Department of Correction’s letter alone is insufficient to support sentencing Ward as a prison releasee reoffender. See id. at 961. We therefore remand for resentencing consistent with the supreme court’s decision in Yisrael II.

Upon remand, the State may present additional evidence to prove that the defendant qualifies for prison releasee reoffender sentencing. See State v. Collins, 985 So. 2d 985, 990 (Fla. 2008).

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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TYRONE JACKSON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D09-0738. District Court of Appeal of Florida, First District. Opinion filed June 12, 2009.An appeal from the Circuit Court for Duval County. L. P. Haddock, Judge.

Tyrone Jackson, pro se, Appellant.

Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant appeals the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the trial court’s summary denial of Appellant’s claim.

Appellant alleges that his trial counsel was ineffective for failing to properly convey a plea offer to him, thereby causing him to proceed to trial. Where a movant is alleging that his trial counsel was ineffective for failing to convey a plea agreement, the motion must allege that: (1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced; (2) the defendant would have accepted the plea but for counsel’s failures; and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed. Morgan v. State, 991 So. 2d 835, 840 (Fla. 2008) (citing Cottle v. State, 733 So. 2d 963 (Fla.1999)).

Appellant’s claim is facially sufficient, and the State concedes that there are factual issues not conclusively refuted by the trial court’s attachments. Accordingly, we reverse the trial court’s order and remand for record attachments that conclusively refute Appellant’s claim or for an evidentiary hearing to address the merits of his claim.

REVERSED and REMANDED.

HAWKES, C.J., LEWIS and THOMAS, JJ., CONCUR.

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

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TYRONE MANGRAM, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D09-0341. District Court of Appeal of Florida, First District. Opinion filed June 12, 2009.An appeal from the Circuit Court for Duval County, Michael R. Weatherby, Judge.

Tyrone Mangram, pro se, Appellant.

Bill McCollum, Attorney General, Giselle D. Lylen, and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.

PER CURIAM.

The appellant seeks review of the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The appellant’s third claim that counsel was ineffective for failing to call a witness and the appellant’s fourth claim that counsel was ineffective for failing to object to inconsistencies between testimony and the 911 call are both facially insufficient. In accordance with Spera v. State, 971 So. 2d 754 (Fla. 2007), we reverse and remand for the trial court to allow the appellant the opportunity to amend his facially insufficient claims within a reasonable period of time. The remaining claims are affirmed without further discussion.

AFFIRMED in part, and REVERSED in part, and REMANDED. BARFIELD,

WEBSTER, and PADOVANO, JJ., CONCUR.

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

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