Florida Criminal Law Opinions

MICHAEL RAY CHAPMAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-143.

District Court of Appeal of Florida, Fifth District.

Opinion filed July 31, 2009.

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

James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.

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

EVANDER, J.

Chapman appeals the denial of his motion to correct an illegal sentence. The written judgment reflects that Chapman was sentenced to 30.375 months in prison followed by five years probation. He contends that the probationary part of his sentence was illegal because it was not specifically pronounced during his sentencing hearing. We affirm. The trial court’s original oral pronouncement was ambiguous and that ambiguity was subsequently clarified at the time the trial court denied Chapman’s motion.

Chapman was initially charged with trafficking in methaphetamine¹ and possession of a firearm by a convicted felon.² The State agreed to nolle prosequi the drug offense if Chapman pled to the firearm charge. Pursuant to the plea offer, Chapman would be sentenced to 30.5 months in prison. (The new scoresheet provided for a minimum guideline sentence on the firearm charge of 30.375 months.) Upon reviewing Chapman’s lengthy criminal record, the trial court refused to accept the plea agreement. After some discussion, the trial court gave Chapman three options: (1) he could agree to a 30.375 month prison sentence followed by five years probation; (2) he could agree to a five year prison sentence with no probation to follow; or (3) he could maintain his not guilty plea and proceed to trial on both charges. Chapman chose the first option.

The trial court then conducted a plea colloquy, during which Chapman was advised, inter alia, that if he violated his probation he “fac[ed] up to 15 years, less any credit time served.” After accepting the plea, the trial court adjudicated Chapman guilty on the firearm charge and orally pronounced that he was to serve 30.375 months in the Department of Corrections. The trial court also imposed fines, costs, and attorney’s fees and permitted Chapman to pay these monies during the period of his probation. In apparent response to an earlier statement made by Chapman that he intended to move out of Florida, the trial judge advised the defendant that he could seek to transfer his probation by “making application.” However, the trial judge failed to specifically state that Chapman was to be placed on five years probation after completion of the incarcerative portion of his sentence. The State then announced a nolle prosequi on the drug offense and the sentencing hearing was concluded.

Chapman subsequently filed his motion to correct illegal sentence, contending that the written judgment was in conflict with the trial court’s oral pronouncement. He requested that the trial court strike the probationary portion of his sentence. The trial court denied Chapman’s motion, aptly observing that “it was the court’s intention, and the State and defendant’s understanding, that the sentence in the instant case included five years of probation.”

Chapman contends that Ashley v. State, 850 So. 2d 1265 (Fla. 2003); Shephard v. State, 940 So. 2d 545 (Fla. 5th DCA 2006); and Comtois v. State, 891 So. 2d 1130 (Fla. 5th DCA 2005) require reversal in this case. We disagree. Those cases stand for the proposition that when a trial court orally pronounces a legal and unambiguous sentence, and the sentencing hearing has been concluded, double jeopardy principles preclude the sentence from being increased. The instant case is distinguishable because the trial court’s oral pronouncement was ambiguous.

The trial judge twice referenced Chapman’s probationary obligations. Where there is an ambiguity in the oral pronouncement, the proper remedy is for the trial court to clarify the sentence imposed. Franklin v. State, 969 So. 2d 399 (Fla. 4th DCA 2007) (where record demonstrates that during oral pronouncement of sentence, trial court made inconsistent statements, matter must be remanded to clarify sentence imposed and enter such corrected sentencing orders as may be appropriate);Coleman v. State, 898 So. 2d 997 (Fla. 2d DCA 2005). Here, in its written order denying Chapman’s motion to correct illegal sentence, the trial court clarified the sentence imposed.

AFFIRMED.

MONACO, C.J. and COHEN, JJ., concur.

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

GARY J. HALL, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-1377.

District Court of Appeal of Florida, Fifth District.

Opinion filed July 31, 2009.

3.800 Appeal from the Circuit Court for Citrus County, Richard Howard, Judge.

Gary J. Hall, Daytona Beach, pro se.

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

EVANDER, J.

Gary Hall appeals from an order summarily denying his Rule 3.800(a)¹ motion to correct illegal sentence. We affirm, in part, and reverse, in part.

In 2004, pursuant to a plea agreement, Hall pled no contest to burglary of a dwelling while armed, two counts of grand theft — statutory property, five counts of grand theft, two counts of burglary of a dwelling/structure/conveyance, and one count of burglary of a dwelling. With regard to sentencing, the trial court’s order reflects: [Hall] was sentenced to 12 years in the Department of Corrections, 10 years minimum/mandatory on the Burglary of a Dwelling While Armed convictions, with credit for time served, and to 5 years on each of the other convictions, followed by 5 years probation. The sentences were ordered to run concurrently one with the other and with any other sentence [Hall] was serving. He was assessed financial requirements of $1,000.00 fines, $342.85 costs, plus 5% fee, $40.00 Public Defender fee, and $50.00 per day cost of incarceration.

No documents were attached to the trial court’s order.

In his motion, Hall raised two points. First, he alleged that the trial court lacked the authority to impose costs for his incarceration. The trial court properly found this argument to be without merit. Ilkanic v. City of Fort Lauderdale, 705 So. 2d 1371 (Fla. 1998) (statute authorizing imposition of $50.00/day charge for costs of incarceration is constitutional).

Second, Hall alleged that the sentence on his second-degree felony convictions exceeded the statutory maximum. While this argument would appear to be without merit, the State concedes that reversal and remand is required because the trial court did not attach any documents to its order. Friss v. State, 881 So. 2d 38 (Fla. 5th DCA 2004) (holding that the trial court has the burden of attaching portions of the record which conclusively refute a Rule 3.800(a) claim). We suggest that upon remand the trial court also review the sentences for the third degree felony convictions to determine if the maximum permitted sentences were exceeded.

AFFIRMED, in part; REVERSED, in part; REMANDED.

MONACO, C.J. and COHEN, J., concur.

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

DANIEL JOHN MONFORTO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-712.

District Court of Appeal of Florida, Second District.

Opinion filed July 31, 2009.

Appeal from the Circuit Court for Lee County, Mark A. Steinbeck, Judge.

James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Of a trial court’s many difficult duties, few are so delicate as instructing a deadlocked jury. Such instructions are potentially coercive, and the giving of them requires extreme sensitivity to the potential for impinging on a criminal defendant’s fundamental right to a trial by jury. In this case, Daniel Monforto contends that his convictions for robbery and burglary were tainted by fundamental error in the trial court’s instructions to a deadlocked jury. We agree and reverse.

After both parties rested in Monforto’s one-day trial, the trial court and the attorneys discussed the timing of the closing arguments, instructions, and jury deliberations. If they continued that day, the jurors would not begin deliberating until approximately 5:00 p.m. If the jurors did not want to stay past 5:00 to deliberate, the attorneys preferred to wait until they returned the following day before giving the closing arguments. The court explained the timing to the jurors, and the jurors decided to stay. As expected, they began their deliberations around 5:00.

After only about one hour, the foreman sent out a note that said: “Your Honor, currently we have not reached a unanimous decision.” Defense counsel expressed his belief that the jurors wished to leave for the evening, but the court wanted clarification. The jurors were returned to the courtroom, and the court recounted the possible interpretations of the note: “It means that you haven’t yet [reached a unanimous decision], but you can; you haven’t yet and you can, but you can’t do it tonight; you haven’t yet and you probably can’t reach a unanimous decision.” The court asked for clarification and sent the jurors back to the jury room.

In short order, the foreman sent out a note reporting that the jury was split five-to-one in favor of convicting on both counts. The note also said that “[i]t is unlikely that at any time the jury will find a unanimous decision.” When the jurors were returned to the courtroom, the court instructed them on conducting their deliberations, and it discussed the nature of their problem with the foreman.

The court’s remarks to the jury resembled an instruction known as an Allen charge, so dubbed for the U.S. Supreme Court case approving it. See Allen v. United States, 164 U.S. 492 (1896). This instruction sometimes is referred to as a “dynamite charge,” and the Florida Supreme Court approved its use State v. Bryan, 290 So. 2d 482 (Fla. 1974). Lewis v. State, 369 So. 2d 667, 668 (Fla. 2d DCA 1979). The instruction for jury deadlock appears as Florida Standard Jury Instruction (Criminal) 4.1.¹ Deviations from the approved instruction are not recommended, as “Florida courts have demonstrated extreme sensitivity to the potential coercive effect of such jury charges.” Palmer v. State, 681 So. 2d 767, 767 (Fla. 5th DCA 1996).

In this case, when the jurors returned to the courtroom after announcing their numerical split, the judge told them that he knew they had worked hard to reach a verdict but apparently it had not been possible for them to do so. This language essentially tracked the opening of Florida’s standard instruction. The court then said: “Sometimes an early vote before discussion can make it hard to reach a decision. The discussion might make it hard to see all sides of the case.” (Emphasis supplied.) In contrast, the standard instruction states that the “vote, not the discussion, might make it hard to see all sides of the case.” Fla. Std. Jury Instr. (Crim.) 4.1. This was no doubt an inadvertent slip because the court then returned to the theme of the standard instruction, stating that “it appears the vote has been taken at a time when further discuss[ion] might be helpful.”

The court then recited one of the key principles of the standard instruction: “We’re all aware that it’s legally permissible for a jury to disagree. There are two things a jury can lawfully do in a case; one is to agree on a verdict, and the other is to disagree on what the facts of the case may truly be.” Consistent with the standard instruction, the court told the jury that “[t]here’s nothing to disagree about on the law in this case. The law is as I told you. If you have any disagreements about the law, then I need to clear them up right now.”

At this point, the standard instruction states: “If you disagree over what you believe the evidence showed, then only you can resolve that conflict, if it is to be resolved.” Fla. Std. Jury Instr. (Crim.) 4.1. Here, the court instead asked the foreman whether the jury’s issue was legal or factual. In reply, the foreman stated that he believed it was a legal question. The foreman agreed to submit the question in writing for the court to resolve.

The court then told the jury that “[i]f it’s a factual question, like I told you, that’s the jury’s decision. You decide what the facts are. I decide what the law is. And if you’re unclear on what the law is, then you need to ask a question about the law.” The foreman said the jury did not mind returning to the jury room to prepare a written question.

The court then finished by telling the jury:

That’s what I’m going to ask you to do. I want you to go back in and I would like you to conduct further discussions and ask each other about the weaknesses and think about the weaknesses of your own individual positions in the case, if there are any, that you feel should be communicated.

You should not interpret [sic] each other — or comment on each other’s views until each of you has had a chance to talk about what your position is.

After you’ve done that and you simply cannot reach a verdict, if it is a factual question, then come back in and let me know that. But if it’s a legal question, I want you to phrase that legal question to me and then have the bailiff bring it back in writing and I’ll respond to it.

In contrast, a court reading the standard instruction is to direct the jury to return to its deliberations but with the caveat that “[b]y law, I cannot demand this of you.” Fla. Std. Jury Instr. (Crim.) 4.1. Then: “After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mistried, and will discharge you with my sincere appreciation for your services.” Id. In this case, contrary to the standard instruction, the court omitted the portions advising the jurors that it could not demand their continued deliberations and that it would discharge them with appreciation for their services if continued deliberations did not result in a verdict and the case was mistried.

Rather than return to the courtroom with a legal question, ten minutes later the jury returned with guilty verdicts on both counts.

A trial court should not say or do anything “that would appear to coerce any juror to reach a hasty decision or to abandon a conscientious belief in order to achieve a unanimous position.” Thomas v. State, 748 So. 2d 970, 976 (Fla. 1999). On appeal, we must decide “whether, under the totality of the circumstances, the trial judge’s actions were coercive.” Id. Here, there are several facts that compel our decision to reverse.

First, the court’s remarks may have led the jurors to think they would not go home until they reached a verdict. When the court returned the jurors to their deliberations, it advised them that if they simply could not reach a verdict because of a factual question, “then come back in and let me know that.” The court failed to tell them that if they simply could not agree, their work would end with a mistrial and the court’s sincere appreciation for their services, which is how the standard instruction is written. “In giving an Allen charge, a trial court must avoid: ‘(1) coercive deadlines, (2) threats of marathon deliberations, (3) pressure for the surrender of conscientiously held minority views, and (4) any implication of a false duty to decide.’” Young v. State, 711 So. 2d 1379, 1379 (Fla. 2d DCA 1998) (quoting in partGahley v. State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990)). We find the court’s instruction problematic when considered in the context of this case, where the jurors had voted to stay after 5 p.m. and finish their work instead of returning the next day and then reached a deadlock after only one hour’s deliberations. When told to resume deliberations with no end in sight, the jury reached a verdict in ten minutes. In this case, the deviation from the standard instruction raised the specter of marathon deliberations and potentially pressured the dissenting juror to give in to the others so that the jury could go home.

Second, the court engaged in a discussion with the foreman about the nature of their deliberations. While the foreman characterized the jury’s dilemma as a legal question, we cannot know if he was correct because the jury never submitted its question. The jury may have been hung up on a factual question or a mixed question of law and fact, but the court appeared to accept the foreman’s characterization of their deadlock as relating to a legal question, which he promised to resolve. “The fear is that members of a deadlocked jury will improperly interpret the judge’s words and actions as support for some position on the merits of the case. There is also great concern that some jurors will place undue significance on events during an Allen charge . . . .” McKinney v. State, 640 So. 2d 1183, 1187 (Fla. 2d DCA 1994). Given the jury’s failure to send out a written question and the fact that they instead quickly reached a verdict when twice before they had announced an impasse, we conclude that the deviations from the standard instruction require a reversal.

Third, although offered without solicitation, the foreman announced the jury’s numerical split of five-to-one. This alone would not be grounds for reversal.McElrath v. State, 516 So. 2d 276 (Fla. 2d DCA 1987), the jurors revealed their five-to-one split, but this court affirmed because the trial court more closely adhered to the standard instruction and the jury deliberated for an additional fifty-five minutes before rendering its verdict. See also Scoggins v. State, 726 So. 2d 762 (Fla. 1999)(concluding that judge’s inquiry into jury’s numerical division was not fundamental error where defense counsel agreed, judge’s inquiry related more to jury’s schedule for deliberations than the nature of their deliberations, and judge did not give supplemental instructions). Here, however, the court strayed from the standard instruction and the jury deliberated only ten more minutes before announcing guilty verdicts.

“Because the right of an accused to a trial by jury is one of the most fundamental rights guaranteed by our system of government, and is the cornerstone of a fair and impartial trial, an infringement of that right constitutes a fundamental error.” Rodriguez v. State, 462 So. 2d 1175, 1177 (Fla. 3d DCA 1985) (concluding that improper charge to deadlocked jury was fundamental error) (internal citations and alterations omitted). “A defendant has the right to have a hung jury, and nothing should be said by the trial court to the jury that would or could likely influence the decision of a single juror to abandon his conscientious belief as to the correctness of his position.” Lewis, 369 So. 2d at 669 (internal citations, quotation marks, and alterations omitted). We conclude that the deviations from the standard instruction constituted fundamental error in this case. Therefore, we reverse and remand for a new trial.

Reversed and remanded.

FULMER and KHOUZAM, JJ., Concur.

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

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

HARDY JAMES, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-5939.

District Court of Appeal of Florida, Second District.

Opinion filed July 31, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County, Edward J. Volz, Jr., Judge.

Hardy James, Jr., pro se.

SILBERMAN, Judge.

Hardy James Jr. appeals from the summary dismissal of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In grounds 1 through 3 of his motion, James asserted that a discrepancy between the oral pronouncement and written sentences on counts 1 through 3 for carjacking, robbery by sudden snatching, and attempted robbery rendered his sentences illegal. In ground 4 of his motion, James raised an issue concerning the legality of his sentence on count 4, fleeing to elude with wanton disregard. We emphasize that there is no error in the postconviction court’s order and write only to explain why the written sentences imposed in counts 1 through 4 are not illegal. We affirm the postconviction court’s order on grounds 5 and 6 without discussion.

At the sentencing hearing in 2001, the trial court, reluctantly finding that James qualified for both prison releasee reoffender (PRR) and habitual felony offender (HFO) sentencing for his convictions on counts 1 through 3, orally imposed concurrent sentences with both designations. The written sentences as rendered, however, reflected a PRR designation only on the thirty-year sentence for count 1, carjacking. The sentences in counts 2 and 3 — five years each for robbery by sudden snatching and attempted robbery — reflected no PRR or HFO designations. Thus, when James raised an issue of the impropriety of the imposition of equal concurrent PRR and HFO sentences in his direct appeal, this court affirmed on the ground that “the record indicates that James received a thirty-year minimum mandatory sentence as a prison releasee reoffender, but he was not also sentenced as a habitual offender” on count 1. James v. State, 829 So. 2d 271, 271 (Fla. 2d DCA 2002).

James then raised this issue of discrepancy between the oral pronouncement and the written sentence in a prior 3.800(a) motion. The postconviction court found in its September 2007 order that there was no habitual offender status to be vacated on counts 1 through 3, citing our opinion in James. Furthermore, the postconviction court declared James’s motion moot as to the oral-written discrepancy because the judgment and sentence did not actually reflect coincident PRR and HFO designations on counts 1 through 3. James appealed, and this court affirmed. James v. State, 980 So. 2d 1075 (Fla. 2d DCA 2008) (table decision).

Thus, the postconviction court’s summary dismissal of claims 1 through 3 in the current motion was entirely proper. “A defendant who has already had a rule 3.800(a) illegal sentence claim determined against him is collaterally estopped from relitigating the same claim except where the application of collateral estoppel would result in a manifest injustice.” Knight v. State, 6 So. 3d 733, 734 n.1 (Fla. 2d DCA 2009). Although the trial court orally pronounced an illegal sentence, the written sentence corrected that illegality, and nothing remains for James to attack in a rule 3.800(a) motion.

James also contends that his sentence on count 4 — a five-year HFO sentence to run concurrent with his sentences in counts 1 through 3 — is illegal because it runs concurrent with the thirty-year PRR sentence on count 1. This court has held that PRR and HFO sentences can legally be imposed — even during the same sentencing hearing — for separate offenses. Tolbert v. State, 827 So. 2d 278 (Fla. 2d DCA 2002) (holding although imposition of PRR and HFO designations on the same offense are precluded by the supreme court’s opinion Grant v. State, 770 So. 2d 655 (Fla. 2000), the prohibition does not apply to the sentencing for separate offenses during the same proceeding).

Accordingly, we affirm the postconviction court’s order.

VILLANTI and CRENSHAW, JJ., Concur.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

J.C., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-4415.

District Court of Appeal of Florida, Second District.

Opinion filed July 31, 2009.

Appeal from the Circuit Court for Hillsborough County, Michelle Sisco, Judge.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

In this juvenile delinquency case, J.C. challenges his adjudication for the delinquent acts of possession of marijuana and possession of paraphernalia, arguing that the trial court erred in denying his motion to suppress. We agree and reverse.

The charges against J.C. stem from an encounter he had with police while he was riding his bicycle on a bike path that runs parallel to a roadway. At the hearing on J.C.’s motion to suppress the physical evidence, the arresting officer testified that upon seeing J.C. riding his bike in “a high crime area,” he and the officer with whom he was riding “pulled along and asked to approach [J.C.].” There is no indication in the record of how J.C. responded. The officer went on to testify that he pulled the car over and “walked out towards the bike path where [J.C.] was at. We were in front of him. We had our range vests on, badge and made consensual contact with him.” When asked on direct examination what he said to J.C. to make contact with him, the officer testified, “We just asked him what he was doing.” However, on redirect, when asked, “Did you order him to stop when you saw him,” the officer testified, “I don’t remember exactly what I said to him. I just said, `Hey, I’ve got to talk to you for a minute. Hang on.’ But he could have drove off at any time.”¹ Regarding whether J.C.’s way was blocked so that he could not leave, the officer testified on cross-examination, “We pulled [the car] up a ways in front of him, and we get out of the vehicle and we go to the path.” J.C. did not testify at the suppression hearing.

On appeal, J.C. argues that the trial court erred in denying his motion to suppress because the officers illegally detained J.C. without the necessary reasonable suspicion by blocking his path of travel and ordering him to “hang on.” Although we conclude that the evidence presented below does not support J.C.’s contention that the officers blocked his path, we do agree that the officers illegally detained J.C.

When reviewing a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent, substantial evidence, Caso v. State, 524 So. 2d 422 (Fla. 1988), while the trial court’s application of the law to those facts is reviewed de novo,Ornelas v. United States, 517 U.S. 690 (1996). Here, the trial court made the factual finding that the stop was consensual. This finding, however, is not supported by the facts.

The arresting officer testified that he told J.C., “Hey, I’ve got to talk to you rfor a minute. Hang on.” Considering the totality of the circumstances—that two officers wearing range vests and badges pulled over, exited their car, and while approaching J.C., told him to “hang on” — such statement amounts to an order and a show of authority. See Caldwell v. State, 985 So. 2d 602, 606 (Fla. 2d DCA 2008) (applying a totality-of-the-circumstances test to the issue of whether law enforcement’s conduct amounted to “a show of authority that would have caused a reasonable person to believe that he was not free to terminate the encounter”).

[A] “citizen encounter becomes an investigatory . . . stop[ ] once an officer shows authority in a manner that restrains the defendant’s freedom of movement such that a reasonable person would feel compelled to comply.” Parsons v. State, 825 So. 2d 406, 408 (Fla. 2d DCA 2002). In short, an investigatory stop occurs when a “reasonable person would not feel free to leave.” Hrezo v. State, 780 So. 2d 194, 195 (Fla. 2d DCA 2001).

Rios v. State, 975 So. 2d 488, 490 (Fla. 2d DCA 2007) (second alteration in original).

We conclude that a reasonable person would not feel free to walk away but rather would feel compelled to comply with a police officer’s command, “I’ve got to talk to you for a minute. Hang on.” As such, we conclude that this was an investigatory stop for which reasonable suspicion of the commission of a crime is necessary.See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (“The second level of police-citizen encounters involves an investigatory stop . . . . At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.”). It is undisputed here that the officers had no such suspicion. As such, the stop was illegal.

Accordingly, we reverse the trial court’s disposition order and remand with instructions to grant J.C.’s motion to suppress.

Reversed.

LaROSE and KHOUZAM, JJ., Concur.

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

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

WILLIAM CECIL BAXTER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-3965.

District Court of Appeal of Florida, Fifth District.

Opinion filed July 31, 2009.

3.800 Appeal from the Circuit Court for Citrus County, Richard Howard, Judge.

William C. Baxter, Carabelle, pro se.

No Appearance for Appellee.

LAWSON, J.

William Cecil Baxter appeals from the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial order in all respects except one. Baxter’s seventeen-year sentence on the charge of possession of a firearm while engaged in a criminal offense¹ appears to exceed the maximum penalty allowed by law for this charge. The offense is a second degree felony. See § 790.07(2), Fla. Stat. (2006). As such, the penalty should not exceed fifteen years. See § 775.082(3)(c), Fla. Stat. (2006). Even though Baxter signed a plea agreement indicating that he would be sentenced on this charge as if it was a first degree felony, he could not legally agree to this sentence unless the charge was somehow enhanced or reclassified to a first degree felony, which does not appear to be the case on this limited record. See, e.g., Robbins v. State, 413 So. 2d 840 (Fla. 3d DCA 1982).

Accordingly, we reverse that portion of the order on appeal addressing Baxter’s seventeen-year sentence for a violation of section 790.07(2), Florida Statutes, and remand with directions that the trial court either resentence Baxter on this charge or attach portions of the record demonstrating how the charge was legally enhanced or reclassified to a first degree felony. In all other respects, the trial court’s order is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

GRIFFIN and ORFINGER, JJ., concur.

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

CARL EDWARD DENNIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-3765.

District Court of Appeal of Florida, Second District.

Opinion filed July 31, 2009.

Appeal from the Circuit Court for Polk County, Steven L. Selph, Judge.

Carl Edward Dennis, pro se.

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

CASANUEVA, Chief Judge.

Carl Edward Dennis appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one, two, four, five, and six without comment. However, we approve the State’s concession of error on ground three and reverse for further proceedings.

Procedural History

The State charged Mr. Dennis with four counts of sexual battery. At trial, a jury convicted him on three counts, acquitting him on one. This court per curiam affirmed his judgment and sentences. See Dennis v. State, 681 So. 2d 284 (Fla. 2d DCA 1996) (table decision). Mr. Dennis subsequently filed this motion for postconviction relief. The postconviction court summarily denied grounds one through five and, following an evidentiary hearing, denied ground six.

In ground three of his postconviction motion, Mr. Dennis claimed that the trial court erred in declaring him a sexual predator. He asserted that the State charged him with committing his offenses over a thirteen-month time period, part of which preceded the effective date of the Florida Sexual Predators Act.¹ The postconviction court summarily denied the claim, ruling that Mr. Dennis should have raised it on direct appeal.

Analysis

The postconviction court erred in denying ground three. Since 2005, this court has held that “a sexual predator designation . . . may be challenged like a sentencing issue by postconviction motions pursuant to rules 3.800(a) and 3.850.” King v. State, 911 So. 2d 229, 234 (Fla. 2d DCA 2005).

Additionally, Mr. Dennis’s claim has merit. The State’s felony information charged that Mr. Dennis committed his offenses between January 1, 1993, and February 28, 1994, inclusive. Section 775.21, Florida Statutes (2008), otherwise known as the Florida Sexual Predators Act, only authorizes the imposition of the sexual predator designation for offenses committed on or after the Act’s effective date of October 1, 1993. See ch. 93-277, §1, at 2624, Laws of Fla.; Anderson v. State, 774 So. 2d 719, 719 (Fla. 2000);Wade v. State, 728 So. 2d 284 (Fla. 2d DCA 1999), receded from on other grounds in King, 911 So. 2d at 233. The State charged Mr. Dennis with committing his offenses during a thirteen-month period that includes dates both before and after the Act’s effective date.

There is no evidence in the record before us to establish the dates of Mr. Dennis’s offenses with any greater specificity than the period charged in the information. The two victims were young children when Mr. Dennis committed his crimes and their trial testimony reflects an inability to identify any precise offense dates. Because it is possible Mr. Dennis committed his offenses before the Florida Sexual Predators Act’s effective date, the rule of lenity prevents the trial court from imposing the sexual predator designation upon him for these convictions. See, e.g., Clements v. State, 979 So. 2d 256 (Fla. 2d DCA 2007) (holding that when the legislature lengthened a statute of limitations during the defendant’s nine-month charged time period and the evidence did not precisely determine when the offenses were committed during that time period, the more lenient statute of limitations applied).

On remand, the trial court shall strike the sexual predator designation imposed for the convictions in this case from Mr. Dennis’s record.

Affirmed in part; reversed in part; remanded with instructions.

ALTENBERND and KHOUZAM, JJ., Concur.

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

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

WARREN STANG, Petitioner,
v.
STATE OF FLORIDA, Respondent.

Case No. 2D08-3536.

District Court of Appeal of Florida, Second District.

Opinion filed July 31, 2009.

Petition for Writ of Certiorari to the Circuit Court for Hardee County, J. David Langford, Judge.

Warren Stang, pro se.

Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Respondent.

Respondent’s Emergency Motion for Rehearing is denied. On this court’s own motion, the opinion dated July 10, 2009, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained. The stay granted July 13, 2009, expires with the issuance of this opinion.

PER CURIAM.

Warren Stang seeks a writ of certiorari directed to the Circuit Court for the Tenth Judicial Circuit, which denied his petition for writ of habeas corpus. Stang contends that he is being illegally detained in the Tenth Judicial Circuit under a sentencing order that is void. Because the attachments to Stang’s petition show that the sentencing order is void, we treat Stang’s petition as a petition for writ of habeas corpus, grant it, and order his release.

Stang initially pleaded guilty in January 2000 to twenty-four various white-collar offenses that occurred between 1991 and 1994. He was sentenced to five years in prison for fifteen of the counts, to run concurrently and with credit for time served, followed by three years of probation for the remaining nine counts, also to run concurrently. After serving his time in prison, Stang was released to probation, which he subsequently violated. The sentencing order on the violation of probation, dated March 30, 2005, imposed a combination of concurrent and consecutive sentences on the pending nine counts that totaled twenty-seven years. However, the order also granted Stang 1915 days’ credit for time served and indicated that the credit was to be applied against each count. The practical effect of this sentencing order was that Stang would serve about two months in prison and then be released with no further supervision.

On April 21, 2005, Stang appealed the revocation of his probation to the Fourth District Court of Appeal. While this direct appeal was pending, Stang was transferred to the custody of the Department of Corrections. When the Department saw the March 30, 2005, sentencing order, it was “confused.” Thus, on June 6, 2005, with no notice to Stang, his counsel, or the State, the Department faxed a letter to “Ana” at the Palm Beach County Clerk of Court. The fax attached the two-page sentencing order from March 30, 2005, and noted that page two of the sentencing order allowed Stang credit for “1,915 days `plus’ the original county jail time and time served in the department’s custody from [sic] counts 1 thru 3, 8, 30, 33, 34, 37, 39, 42, 51, 56, 60, 62 and 64, in accordance withTripp v. State.” The fax also noted that awarding this credit “would result in a potential immediate release.” Therefore, the Department requested that the court “clarify” Stang’s sentence within three working days.

Apparently in response to this letter, on June 7, 2005, the trial court entered an “amended” sentence that gave Stang a total of 1915 days’ credit against his entire sentence. This amendment meant that Stang would serve approximately twenty-two years in prison, rather than approximately two months. Neither Stang nor his counsel were given notice of this “resentencing,” and the “amended” sentence was not provided to Stang, his counsel, or the State. This “amended” sentence was entered sixty-nine days after Stang was sentenced for the violation of probation and while Stang’s direct appeal of that sentence was pending.

Stang first learned of the existence of this “amended” sentencing order when he questioned the Department about his release date. The Department told Stang that he had been awarded 1915 days’ credit against his total sentence, not each count, and it provided him with the “amended” sentence. When Stang attempted to address the issue of which sentence should be enforced—the original or the “amended”—through the prison grievance system, he was told that the Department was required to enforce the “amended” sentence and that it had no authority to disregard that sentence.

Stang also attempted to address the enforceability of the “amended” sentence through the court system. In a motion filed pursuant to Florida Rule of Criminal Procedure 3.850, Stang argued that the “jail time served” award in the “amended” sentence was incorrect and contrary to the sentence imposed when he entered his admission to the violation of his probation. See Stang v. State, 976 So. 2d 656 (Fla. 4th DCA 2008). After the trial court denied this claim as untimely, Stang appealed, and the Fourth District reversed and remanded for reconsideration on the merits. Id. On remand, the postconviction court ordered the State to respond. The State did so by arguing that Stang was not entitled to the “windfall” of having his time served applied to each count. From the record before this court, it does not appear that the State addressed the issue of whether the “amended” sentence was legally entered or whether it comported with the sentence actually imposed at the violation of probation hearing. After “adopting” the State’s response, the postconviction court denied Stang’s rule 3.850 motion on April 18, 2008.

Stang did not appeal the denial of this postconviction motion. Instead, on June 26, 2008, he filed a petition for writ of habeas corpus with the Tenth Judicial Circuit arguing that the “amended” sentence was void because it was rendered during the pendency of his direct appeal. He also argued that entry of the “amended” sentence violated his due process rights because neither he nor his counsel were given notice of the court’s intent to amend his sentence nor was he given the opportunity to be present when his sentence was amended. Finally, he argued that because his original sentence was not illegal and because the sixty-day period for modifying a sentence under rule 3.800(c) had expired, the trial court had no jurisdiction to “correct” any error in his sentence on the sixty-ninth day. Stang asserted that the initial legally imposed sentence had long since expired and that he was entitled to immediate release. The postconviction court denied Stang’s habeas petition, finding that his claims had been “addressed appropriately at the administrative level.” Stang then sought review of that ruling by seeking a writ of certiorari in this court.

As an initial matter, we treat Stang’s petition for writ of certiorari as a petition for writ of habeas corpus because Stang is seeking his immediate release from custody. Florida Rule of Appellate Procedure 9.040(c) provides that “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.” Because Stang is seeking his immediate release from prison based on an allegedly void sentencing order, his petition for writ of certiorari should be treated as a petition for writ of habeas corpus.

Turning to the merits, we note that this court’s jurisdiction to consider Stang’s habeas petition is quite limited. While Stang was convicted and sentenced in Palm Beach County, a county not within the territorial jurisdiction of this court, this court nevertheless has jurisdiction to review the sentencing order because Stang is currently assigned to the Hardee Correctional Institution, which is within the territorial jurisdiction of this court. See Alachua Reg’l Juvenile Det. Ctr. v. T.O., 684 So. 2d 814, 816 (Fla. 1996). In such a case, “the scope of the reviewing court’s inquiry is limited to whether the court that entered the [detention] order was without jurisdiction to do so or whether the order is void or illegal.” Id.; see also Murray v. Regier, 872 So. 2d 217, 221 (Fla. 2002); Pressly v. Tadlock, 968 So. 2d 1057, 1058 (Fla. 2d DCA 2007). The crux of the inquiry is whether the order is void or patently illegal, and “[t]he reviewing court may not discharge the detainee if the detention order is merely defective, irregular, or insufficient in form or substance.” T.O., 684 So. 2d at 816. As a practical matter, “[i]f the challenged detention order [is] determined to be in violation of the petitioner’s constitutional guarantee of due process, then the order would clearly be `illegal’ and not merely defective, irregular, or insufficient in form or substance.” Murray, 872 So. 2d at 222.

Here, our review of the record reveals that the detention order under which Stang is being held is void and illegal for several reasons. First, the trial court had no jurisdiction to “amend” Stang’s sentence during the pendency of his direct appeal in the absence of a proper motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Florida Rule of Appellate Procedure 9.600(d) provides that a trial court retains jurisdiction during the pendency of an appeal in a criminal case to consider only motions filed pursuant to rule 3.800(b)(2) and motions addressed to post-trial release pursuant to rule 9.140(h). Cf. Brown v. State, 744 So. 2d 1209, 1209 (Fla. 2d DCA 1999) (noting that the trial court’s jurisdiction while an appeal is pending is limited to that provided by rule 9.600(d)).

Here, Stang’s sentence was not “amended” pursuant to any motion filed under rule 3.800(b)(2). Clearly Stang did not file such a motion, and the State could not have properly filed such a motion since rule 3.800(b) permits the State to seek relief “only if the correction of the sentencing error would benefit the defendant or . . . correct a scrivener’s error.” Nothing in the record indicates that the error in question was simply a scrivener’s error, nor has the State ever asserted so in any of its filings with the postconviction court, the Fourth District, or in this appeal. Accordingly, pursuant to rule 9.600(d), the trial court was without jurisdiction to enter the “amended” sentence, and the “amended” sentence is therefore void and unenforceable.

Second, the “amended” sentence was entered in violation of Stang’s due process rights. A defendant has a due process right to be present at any sentencing or resentencing hearing at which judicial discretion will be exercised. See, e.g., Griffin v. State, 517 So. 2d 669, 670 (Fla. 1987); Mullins v. State, 997 So. 2d 443, 445 (Fla. 3d DCA 2008). A defendant also has the right to notice of the sentencing hearing and notice that any new sentence is appealable. Butler v. State, 973 So. 2d 677, 678 (Fla. 2d DCA 2008) (noting that a defendant has a due process right to be represented by counsel at any resentencing and to be informed of his right to appeal the new sentence); Fuston v. State, 838 So. 2d 1205, 1207 (Fla. 2d DCA 2003) (questioning the validity of an amended sentence as violative of due process when the defendant was not advised that the amended sentence was appealable); Canete v. Fla. Dep’t of Corr., 967 So. 2d 412, 416 n.4 (Fla. 1st DCA 2007) (expressing serious due process concerns about a sentence imposed outside the defendant’s presence, without notice, and without entry of an appealable sentencing order). Here, the record clearly shows that the trial court adversely modified Stang’s sentence outside of his presence, without notice, and without providing either Stang or his counsel with the “amended” sentence so that an appeal could be taken. These blatant due process violations, apparent from the face of the record, render the “amended” sentence illegal. See Murray, 872 So. 2d at 222.

Third, the “amended” sentence violated Stang’s double jeopardy rights. This court and others have repeatedly held that a trial court may not rescind jail credit that was previously awarded, even if the initial award was improper, because such an action violates double jeopardy. See, e.g., Lebron v. State, 870 So. 2d 165, 165 (Fla. 2d DCA 2004); Linton v. State, 702 So. 2d 236, 236-37 (Fla. 2d DCA 1997); Wheeler v. State, 880 So. 2d 1260, 1261 (Fla. 1st DCA 2004); but see Gallinat v. State, 941 So. 2d 1237 (Fla. 5th DCA 2006) (finding no double jeopardy violation if the trial court simply corrects an award of jail credit that is clearly incorrect based on the face of the record). Here, as the Department’s faxed letter confirms, the original sentencing documents awarded Stang 1915 days’ credit against each of his sentences. The State neither appealed this award nor filed a motion to modify pursuant to rule 3.800(c). Accordingly, the trial court’s “taking back” of Stang’s previously awarded jail credit was a violation of his double jeopardy rights that renders his “amended” sentence illegal.

Because the “amended” sentencing order under which the Department is holding Stang is void and illegal, it is unenforceable. Under these circumstances, Stang can be legally held pursuant only to the original sentence imposed on March 30, 2005 — not the June 7, 2005, “amended” sentence. Since the sentence imposed on March 30, 2005, expired years ago, Stang is entitled to immediate release.

Petition for writ of habeas corpus granted.

NORTHCUTT and VILLANTI, JJ., Concur.

WHATLEY, J., Concurs in result only.

Courtesy of David Edelstein

Bookmark It

Hide Sites

ROGER C. CASSIDY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-2479.

District Court of Appeal of Florida, Fifth District.

Opinion filed July 31, 2009.

3.850 Appeal from the Circuit Court for Seminole County, O.H. Eaton, Jr., Judge.

Roger C. Cassidy, Avon Park, pro se.

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

GRIFFIN, J.

Roger C. Cassidy ["Cassidy"] appeals the trial court’s denial of his petition for writ of habeas corpus to file a belated 3.850 motion following an evidentiary hearing. Cassidy claims he retained now-deceased attorney, Jack Edmund, to file a 3.850 motion for post-conviction relief on his behalf. Cassidy contends that, in dismissing the motion, the trial court relied on improper evidence to conclude that he had not retained Attorney Edmund, as he claimed.

In June of 1998, the State charged Cassidy by information in cases 98-1864-CFA, 98-01957-CFA, and 98-2148-CFA. Cassidy entered pleas of nolo contendere to the charges in each case. The trial court adjudicated Cassidy guilty and sentenced him to a term of confinement in the Department of Corrections, followed by a term of probation. Later, while on probation, Cassidy committed a new law violation, which resulted in revocation of probation. Cassidy was convicted on the new law violation and sentenced to life imprisonment as a prison releasee reoffender.

Years later, on December 11, 2007, Cassidy filed a petition for writ of habeas corpus, seeking a belated 3.850 motion for post-conviction relief. In his petition, Cassidy alleged in pertinent part:

3. Petitioner contacted Mr. Jack Edmund, Esquire, whereby requesting said counsel to file a timely motion for postconviction relief under Rule 3.850, of Florida’s Rules of Criminal Procedure.

4. Mr. Jack Edmund, Esquire, agreed to file a timely Rule 3.850 motion for postconviction relief. However, said counsel never filed the motion as agreed.

The State responded, asserting that Cassidy’s petition was barred by the doctrine of laches and alleging in pertinent part:

2. The defendant has conveniently alleged and named an attorney, Jack Edmund, who is now deceased as the individual he claims to have retained to file a post-conviction motion years ago. In the meantime, the defendant was convicted of Robbery With a Deadly Weapon and sentenced to life imprisonment as a prison releasee reoffender in Seminole County Case No. 01-2666-CFA, unsuccessfully taken an appeal therefrom and then filed a motion for post-conviction relief which was denied on February 25, 2005.

The trial court conducted an evidentiary hearing on Cassidy’s petition, during which it heard testimony from several witnesses.

Cassidy testified that his friend, Larry Pool, sent him a letter in late 1998 or early 1999, in which he informed Cassidy that he had hired Attorney Edmund for purposes of a 3.850 motion for post-conviction relief on Cassidy’s behalf. Cassidy also testified that he received notice through the mail from Attorney Edmund “that [Attorney Edmund] had been retained by Mr. Pool to file a Rule 3.850 motion for [him] in relation to the three cases that [he] was in prison for.” He later received notice from Attorney Edmund that the 3.850 motion had been denied and that no appeal had been taken. He retained none of those documents.

During cross-examination, Cassidy admitted to “about twenty” felony convictions. Cassidy also confirmed that his convictions and sentences in the three cases had resulted from an agreed upon plea deal with the State.

Pagan Taylor ["Taylor"] also testified during the evidentiary hearing. Taylor testified that Attorney Edmund was her father and that he had passed away in March 2002. She explained that she had been Attorney Edmund’s legal assistant in the late nineties and continued in this position until his death. Taylor then testified:

Q. Did you maintain all of the records in the office of Mr. Edmund?

A. Yes, I did.

Q. Were you familiar with the manner in which those records were kept?

A. Yes, sir.

Q. Now, are all of the records of all of the files still in existence for all of his clients?

A. Yes, sir. We do have a journal.

Q. Okay. Now, the journal that you spoke of, what does that journal consist of?

A. We give it a file number, the date it was opened, the name, and sometimes a brief description of what kind of a case it was.

Q. Was it your practice in Mr. Edmund’s office to ever represent or be retained by any client without that client’s name appearing in the journal that you spoke of?

A. No, sir.

Q. What sort of practice did Mr. Edmund have?

A. He was a criminal attorney. He did federal law and criminal law.

Q. Are you familiar with what is known as a 3.850 motion?

A. Yes, sir, I am.

Q. And did Mr. Edmund practice that sort of law?

A. No, sir, he did not.

Q. Have you reviewed, at my request, all of the journal entries, all of your records relating to all clients that were represented by Mr. Edmund from 1998, ’99, 2000, and 2001 to determine whether or not there ever was a client by the name of Roger Cassidy who was represented by Mr. Edmund?

[CASSIDY'S ATTORNEY]: Objection. Hearsay.

THE COURT: Overruled.

THE WITNESS: Yes, sir. I have reviewed the records, and, no, sir, there is no record of a Roger Cassidy.

BY [THE STATE]:

Q. Would Mr. Edmund had [sic] ever written letters to individuals in — strike that.

If Mr. Edmund had represented any client by the name of Roger Cassidy, would his name, Mr. Cassidy’s name, appear in those journal entries during that time period?

[CASSIDY'S ATTORNEY]: Objection.

THE WITNESS: Yes, it would have.

[CASSIDY'S ATTORNEY]: Speculation.

THE COURT: Overruled.

BY [THE STATE]:

Q. Has it come to your attention that other individuals, other inmates, have used — have made the same sort of claim that Mr. Edmund had represented or he had been retained to represent them in a post-conviction relief motion?

[CASSIDY'S ATTORNEY]: Objection. Relevance.

THE WITNESS: Yes, sir, I have.

THE COURT: Overruled.

BY [THE STATE]:

Q. Have you, actually, had to go to court and testify before relating to this?

A. Actually, I have not, actually, gone to court. I’ve given depositions, but the cases are usually or have been, actually, dismissed before it got that far.

After the evidentiary hearing, the trial court entered an order denying Cassidy’s petition for writ of habeas corpus, stating in pertinent part:

Having weighed the credibility of the testimony at the evidentiary hearing, the Court accepts the facts as testified to by Ms. Taylor. As such, the Court finds that… [Cassidy] did not retain Mr. Edmund to file a post conviction motion. Therefore,… [Cassidy] is not entitled to file an untimely motion for post conviction relief. See Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999)[.]

On appeal, Cassidy contends that the testimony of Taylor was inadmissible as hearsay or speculation or was irrelevant. He further claims that without this evidence, the trial court was obliged to accept his testimony and allow the belated 3.850 motion. We disagree. The bulk of Taylor’s testimony was neither speculative nor hearsay and fully supports the trial judge’s finding. Moreover, even if Cassidy’s testimony had been uncontroverted, the trial court was not obliged to accept the testimony if it did not believe Cassidy. Dep’t of Highway Safety v. Dean, 662 So. 2d 371, 372 (Fla. 5th DCA 1995); State v. Paul, 638 So. 2d 537, 539 (Fla. 5th DCA 1994).

AFFIRMED.

TORPY and LAWSON, JJ., concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

MARIE ANN McLAUGHLIN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-2414.

District Court of Appeal of Florida, Second District.

Opinion filed July 31, 2009.

Appeal from the Circuit Court for Hillsborough County, Robert A. Foster, Jr., Judge.

James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Marie Ann McLaughlin appeals the order withholding adjudication and imposing only court costs as her sentence for grand theft motor vehicle and battery on a law enforcement officer. The trial court should have granted McLaughlin’s motion to dismiss because the State had not commenced the prosecution within the statute of limitations. Thus, we reverse the trial court’s order withholding adjudication and imposing court costs and remand for the trial court to dismiss the charges.

McLaughlin was arrested for the third-degree felonies of grand theft motor vehicle and battery on a law enforcement officer on March 9, 1996. The crimes allegedly occurred on or between March 7, 1996, and March 9, 1996. Our record is sparse, and many of the facts must be gleaned from the trial court case progress notes. An assistant public defender was appointed for McLaughlin on March 10, 1996, apparently for the first appearance. On March 10, 1996, counsel filed a Notice of Defendant’s Invocation of Right to Counsel. On March 15, 1996, counsel filed a motion to reduce bail or release McLaughlin on her own recognizance which was denied on March 19, 1996. McLaughlin was released from jail on March 29, 1996.

On May 2, 1996, the State filed its information charging McLaughlin with grand theft motor vehicle and battery on a law enforcement officer. On May 8, 1996, the case was set for arraignment on May 21, 1996. Notice was sent to McLaughlin on May 9, 1996, although the case progress notes do not reflect the address to which the notice was sent. Notice was also sent to Paul Ortelli, the bail bondsman. Nothing in the case progress notes reflects that defense counsel was provided notice of the arraignment. On May 14, 1996, an entry reflects that the notice to the defendant was returned.

On the date set for arraignment, May 21, 1996, a capias was requested. The capias issued on May 28, 1996. The parties suggest that defense counsel filed a motion for extension of time that was granted on July 23, 1996. Our review of the case progress notes seems to indicate that it was the bail bondsman’s attorney who filed the motion for extension of time, apparently regarding the forfeiture of the bond. The case progress notes reflect that the motion for extension of time was granted and that the bail bondsman’s attorney, W. Dale Gabbard, was present at the hearing on July 23, 1996. Other than further proceedings regarding the bond, no other action was taken in the case until a warrant was served on McLaughlin on these charges on April 29, 2008, after she was extradited to Florida from New York.

On May 7, 2008, McLaughlin filed a motion to dismiss based on the statute of limitations. During the hearing on the motion, the trial court asked, “She had knowledge of the charges and voluntarily elected to remove herself from the jurisdiction of the court?” The prosecutor replied, “That would be the State’s position on this.” No evidence was presented at the hearing. In denying the motion, the trial court stated, “She secreted herself. She got arrested in another state, got extradited down here. Deny your request.” McLaughlin entered a no contest plea, reserving for appeal the dispositive issue of her motion to dismiss.

The State is generally required to commence prosecution for third-degree felonies within three years after the crimes were committed. See § 775.15(2)(b), Fla. Stat. (1995). However, section 812.035(10), Florida Statutes (1995), provides that “[n]othwithstanding any other provision of law,” an action for grand theft under section 812.014 “may be commenced at any time within 5 years after the cause of action accrues.” Thus, the statute of limitations is five years on the grand theft charge and three years on the battery of a law enforcement officer charge. With respect to when prosecution is commenced, section 775.15(5) provides, in pertinent part, as follows:

(5) A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered.

(Emphasis added.) With respect to the defendant’s absence from the state, section 775.15(6) provides as follows:

(6) The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

Section 812.035(10) provides that, for the grand theft charge, the defendant’s absence from the state shall not “extend the period of limitation otherwise applicable by more than 1 year.”

In 1997, section 775.15 was amended to excuse the State for not extraditing or actively pursuing suspects who had been timely charged by indictment or information and been continuously absent from the State. See § 775.15(6), Fla. Stat. (1997). This amendment became effective July 1, 1997. See ch. 97-90, §§ 1, 7, at 514, 521, Laws of Fla. The parties agree that the amendment does not apply to McLaughlin’s crimes allegedly committed in March 1996 because the applicable version of the statute of limitations is the one in effect when the alleged crimes were committed.¹ See State v. White, 794 So. 2d 682, 682 n.1 (Fla. 2d DCA 2001).

On appeal, the State does not contend that it was excused from timely commencing the prosecution. Rather, the State contends that by May 21, 1996, the date the capias was requested, the prosecution had commenced because the information was filed and “other process” issued. In making its argument that other process issued, the State analogizes this case to cases such as White, 794 So. 2d 682, and State v. Martinez, 790 So. 2d 520 (Fla. 2d DCA 2001). In White, this court stated that “where the defendant is represented, files a plea and is arraigned, `other process’ sufficient to commence prosecution under section 775.15(5) has occurred.” 794 So. 2d at 683. The court further explained, “Even if White did not have personal knowledge that the information was filed, arraignment conducted and pretrial scheduled, his attorney did, and the attorney’s knowledge is imputed to his client.” Id.

In Martinez, the public defender’s office was appointed to represent Martinez after he was arrested. Counsel filed a written plea of not guilty, a notice of discovery, and a demand for jury trial. Martinez was still in custody when the State filed its information. Counsel “either appeared at the arraignment on Martinez’s behalf or waived formal arraignment.” 790 So. 2d at 522. The case was set for pretrial, and Martinez failed to show up at the pretrial. A capias was issued, and Martinez was not arrested until more than nine years later.

In determining that the prosecution had commenced no later than the date of arraignment, this court explained as follows:

Martinez, either personally or through his counsel, knew that an information had been filed against him and that his prosecution was going forward in the usual way. In fact, counsel had filed a notice to participate in discovery. The only reason that this prosecution did not proceed in a timely manner was that Martinez chose not to attend his pretrial conference.

Id.; see also State v. Ramos, 975 So. 2d 638, 639 (Fla. 4th DCA 2008) (“After the information was filed, Ramos received `other process’ in the form of the notice to appear at the arraignment.”); Starling v. State, 799 So. 2d 425, 428 (Fla. 5th DCA 2001) (determining that notice of the trial and pretrial conference dates sent to defense counsel after the information was filed constituted “other process” to commence prosecution).

State v. Watkins, 685 So. 2d 1322, 1323-24 (Fla. 2d DCA 1996), this court affirmed the trial court’s order dismissing charges against Watkins because the State failed to commence prosecution against him “by filing an information or indictment and executing a capias without unreasonable delay[.]” Judge Altenbernd expressed uncertainty as to “what `other process’ should be issued to a person who has been released on bail after first appearance.” Id. at 1324 (Altenbernd, J., specially concurring). Judge Altenbernd suggested, “If a letter were sent to the address provided by the defendant at the time of his arrest, notifying him or her of the filing of the information and the date and time of arraignment, I would regard that as sufficient `other process’ under these circumstances.” Id. Judge Altenbernd noted that the record contained “no proof that such a letter was sent or received.” Id. at 1324, n.2. He also recognized that the State carried the burden of proof. Id. at 1325.

Here, the public defender’s office was initially appointed for the first appearance held on March 10, 1996. The State contends in its brief that McLaughlin’s “counsel filed a written plea of not guilty, and either appeared at the arraignment on [McLaughlin's] behalf or waived formal arraignment. Therefore, even if [McLaughlin] did not personally know the information had been filed, arraignment conducted, and pretrial scheduled, her counsel did.” The record does not support the State’s factual assertions. Nothing in the record shows that counsel filed a written plea of not guilty. The document to which the State refers is the Notice of Defendant’s Invocation of Right to Counsel, filed on the date of the first appearance, March 10, 1996, well before the information was filed on May 2, 1996. It is clear that the invocation of right to counsel is not a plea.

Although the case progress notes reflect that arraignment was set for May 21, 1996, they do not reflect that notice was sent to counsel, that counsel appeared at arraignment, or that counsel formally waived arraignment. Rather, the case progress notes show that a capias was requested on May 21, 1996, no doubt because McLaughlin did not show up at the arraignment. Furthermore, although the case progress notes reflect that notice was sent to McLaughlin, they do not indicate to what address the notice was sent and, in fact, indicate that the notice to McLaughlin was returned. The record also does not support the State’s assertion that McLaughlin’s counsel knew that pretrial had been scheduled. Nothing reflects that a pretrial had been scheduled in 1996 on the charges against McLaughlin. The record does show that a motion for extension of time was filed on June 24, 1996, but the case progress notes seem to indicate that the motion was filed by the bail bondsman’s counsel regarding forfeiture of the bond.

Our record evidence is simply insufficient to prove that “other process” issued after the information was filed. McLaughlin was released from jail in March 1996, the information was filed in May 1996, and notice to McLaughlin of the arraignment date was returned. Nothing shows that counsel was notified of McLaughlin’s arraignment or that counsel appeared on McLaughlin’s behalf at arraignment. Nothing reflects that McLaughlin or any counsel “knew that an information had been filed against [her] and that [her] prosecution was going forward in the usual way.” Martinez, 790 So. 2d at 522. Based on the circumstances here, we conclude that the prosecution did not commence within the applicable statute of limitations. Therefore, we reverse the order withholding adjudication and imposing court costs and remand for the trial court to dismiss the charges.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

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

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites