Florida Criminal Law Opinions

RONALD RAY SOLORZANO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-5664.

District Court of Appeal of Florida, Second District.

Opinion filed July 31, 2009.

Appeal from the Circuit Court for Sarasota County, Rick A. DeFuria, Judge.

Jackson S. Flyte, Regional Counsel, Second District, and Mark P. Brewer, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Ronald Ray Solorzano appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court summarily denied seven of Solorzano’s nine grounds for relief and denied the remaining two grounds after an evidentiary hearing. We affirm in part, reverse in part, and remand for further proceedings.

Background

Solorzano was charged with one count of DUI manslaughter and three counts of DUI with serious bodily injury following events that occurred on March 9, 2003. The evidence at trial showed that Solorzano had spent the afternoon and evening of March 9 at Gilligan’s Bar with a group of friends and co-workers. At some point in the evening, one of Solorzano’s co-workers, Ida D’Ettorre, became too drunk to drive and was feeling ill. Solorzano offered to drive Ms. D’Ettorre home. While doing so, Solorzano lost control of his truck, crossed the center median, and collided with four people on two motorcycles. One of the motorcyclists was killed; the other three suffered serious injuries.

Solorzano’s defense at trial was that he was not intoxicated when the accident occurred. He contended that he had had only two or three beers during his six or seven hours at Gilligan’s and that he had been eating during that time as well. He contended that he lost control of his truck only because Ms. D’Ettorre vomited on him while he was driving. He also contended that his blood alcohol level was due to his having taken Nyquil for a cold rather than due to his drinking at the bar. The jury apparently rejected these defenses, and it found Solorzano guilty as charged. The trial court sentenced Solorzano to 23.14 years in prison followed by five years’ probation. This court affirmed Solorzano’s judgment and sentence on direct appeal. Solorzano v. State, No. 2D04-2061 (Fla. 2d DCA June 22, 2005).

Solorzano timely filed a motion for postconviction relief, raising nine grounds for relief. The postconviction court summarily denied grounds one, four, five, six, seven, eight, and nine. It held an evidentiary hearing on grounds two and three, after which it denied those grounds as well. We affirm the denial of grounds one, two, three, and nine without further discussion. We also affirm the denial of ground seven, but we write to explain our reasoning. As to grounds four and five, we reverse and remand for these grounds to be stricken pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007), and we write to explain why we reject Solorzano’s request for leave to amend these two claims. Finally, as to grounds six and eight, we reverse and remand for further proceedings.

Ground Four

In ground four of his motion, Solorzano alleged that his trial counsel was ineffective for failing to move to strike prospective juror Wasson for cause after she stated during voir dire that she would want to hear “everything from everybody” before she made a decision. Solorzano alleged that this could be interpreted as Wasson placing the burden on the defense to come forward with testimony and evidence but that trial counsel never questioned Wasson about this. The postconviction court summarily denied this claim, holding that Solorzano’s allegations were facially insufficient because he did not allege that Wasson was actually biased as required by Carratelli v. State, 915 So. 2d 1256 (Fla. 4th DCA 2005), review granted, 935 So. 2d 499 (Fla. 2006).

Since the postconviction court issued its order, the supreme court issued its opinion Carratelli v. State, 961 So. 2d 312 (Fla. 2007). In that case, the supreme court held that “where a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased.” Id. at 324. Under this standard, “the defendant must demonstrate that the juror in question was not impartial — i.e., that the juror was biased against the defendant, and the evidence of bias must be plain on the face of the record.” Id.

Here, Solorzano’s motion does not allege that Wasson was actually biased against him. Instead, Solorzano alleged only that had counsel raised a cause challenge, it would have been granted and another juror would have been chosen to serve on the case. This allegation is legally insufficient under the supreme court’s decision in Carratelli. Id. Therefore, Solorzano’s motion was facially insufficient on this ground.

That said, however, the postconviction court should have stricken this claim pursuant to Spera rather than denying it. See Spera, 971 So. 2d at 761 (holding that when a ground for relief in a postconviction motion is facially insufficient, the proper procedure is to strike the motion). Further, because the postconviction court did not attach the transcripts of jury selection to its order denying Solorzano’s motion, we cannot say that Solorzano’s claim of juror bias is conclusively refuted by the record. Thus, we must reverse the denial of this ground and remand for it to be stricken.

In this appeal, Solorzano contends that, pursuant to Spera, he should be granted leave on remand to amend this claim. Id. (holding that a postconviction court abuses its discretion if it does not provide a defendant with at least one opportunity to amend a facially insufficient claim). Under the facts here, we disagree. The reason for this disagreement requires us to discuss the Spera decision in some depth.

Spera Decision

In Spera, the supreme court was faced with the question of the proper scope of leave to amend to be given to a defendant who alleged a facially insufficient claim of ineffective assistance of counsel for failing to investigate witnesses and call them at trial. 971 So. 2d at 755. The Fourth District had held that, under Nelson v. State, 875 So. 2d 579 (Fla. 2004), a defendant given such leave was permitted to remedy only “`technical omissions’” in the motion rather than “a complete failure of pleading.” Spera, 971 So. 2d at 755 (citing Spera v. State, 923 So. 2d 543 (Fla. 4th DCA 2006) (en banc)). The Fourth District’s interpretation and application of Nelsonconflicted with this court’s decision Keevis v. State, 908 So. 2d 552 (Fla. 2d DCA 2005), which had applied Nelson more broadly to allow correction of other pleading deficiencies. Spera, 971 So. 2d at 755. The supreme court accepted review to address this conflict and to establish uniformity in the criminal postconviction process.Id.

After discussing the general pleading requirements of rule 3.850, the court turned to a discussion of the means by which a defendant whose motion is determined to be facially insufficient may correct that insufficiency. The court noted that three means currently exist: by obtaining leave of court to file an amended motion; by filing a second motion in compliance with rule 3.850(f); and by filing an amended motion while the initial motion is pending. Id. at 758-59. As to the second method, however, the court recognized that a procedural gap arises when a defendant files a timely rule 3.850 motion that the postconviction court finds facially insufficient only after the two-year filing period provided in rule 3.850(b) has expired. Id. at 758.

In discussing how this gap arises, the supreme court first noted that rule 3.850(f) specifically permits a defendant to file a second or successive rule 3.850 motion, which can be denied as successive only “`if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits . . . .’ “ Id. (quoting Fla. R. Crim. P. 3.850(f)). Therefore, “[a] trial court `may not summarily dismiss a successive motion for post-conviction relief that raises issues that were either summarily denied or dismissed for legal insufficiency in the initial motion.’” Id. (quoting Christopher v. State, 489 So. 2d 22, 24 (Fla. 1986));see also McCrae v. State, 437 So. 2d 1388, 1390 (Fla. 1983) (stating that the prohibition against successive motions applies “only when the grounds raised were previously adjudicated on their merits, and not where the previous motion was summarily denied or dismissed for legal insufficiency”); Frew v. State, 947 So. 2d 1275, 1276 (Fla. 2d DCA 2007) (stating that the circuit court’s discretion to dismiss a motion as successive under rule 3.850(f) “does not apply when the previous motion was summarily denied or dismissed for legal insufficiency”). Therefore, a defendant whose postconviction claim is denied as facially insufficient has the right under rule 3.850(f) to file a successive¹ motion raising the same claim but remedying the insufficiency.

However, as the supreme court also pointed out, “[t]he caveat in the rule. . . is that successive motions must be filed by the two-year deadline in the rule. Thus, defendants whose initial postconviction motions are dismissed as insufficient after the deadline expires cannot avail themselves of the rule.” Spera, 971 So. 2d at 759 (citations omitted). Therefore, “[a] gap . . . remains for defendants who file a timely but insufficient initial postconviction motion, but whose amended or successive motion would be filed after the deadline.” Id.

The Spera court then discussed its decision Bryant v. State, 901 So. 2d 810 (Fla. 2005), which addressed a similar gap that existed under rule 3.851, the rule that controls postconviction motions in death penalty cases. The court noted that Bryant had closed this gap for capital defendants by requiring a postconviction court that denies an initial rule 3.851 motion as facially insufficient after the filing deadline has passed to provide the defendant with a reasonable period in which to amend the motion to attempt to cure the facial insufficiency. Spera, 971 So. 2d at 760. The court then held that it would now similarly “close that gap” for defendants filing motions under rule 3.850. Id. at 761. Thus, under Spera, when a defendant’s timely initial motion under rule 3.850 is dismissed as facially insufficient after the time for filing a timely amended motion has passed, a postconviction court “abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.” Id.

This discussion in Spera leads us to believe that its “leave to amend” language applies only to cases that fall within this gap period. Interpreting Spera to apply to all facially insufficient rule 3.850 motions, rather than solely those that fall in the gap, would result in two anomalies. First, it would result in a postconviction court being required to provide leave to amend in situations in which the defendant already has leave to amend as a matter of law pursuant to the plain language of rule 3.850(f). Conversely, it would also require this court to find that a postconviction court abused its discretion by not providing leave to amend to a defendant who already has the clear legal right to amend. We do not see how failing to redundantly authorize leave to amend when the defendant has a preexisting legal right to amend can constitute an abuse of discretion.

Second, requiring postconviction courts to grant leave to amend to defendants whose postconviction motions do not fall within the gap period could result in an award of “relief” that would actually shorten the time otherwise available to that defendant in which to file his or her amended motion. Spera provides that a postconviction court should grant leave to amend for “‘a reasonable period’ ” which the court expected would be “`between ten and thirty days.’ “ Id. (quoting Bryant, 901 So. 2d at 819). When a defendant, such as Solorzano, files his or her motion before the end of the two-year period under rule 3.850(b), an order limiting the time to amend to thirty days could result in that defendant having less time in which to seek postconviction relief than other defendants. We do not believe that the supreme court intended its decision in Spera to alter the otherwise-applicable time periods provided in rule 3.850 sub silentio. We also do not believe that Spera should be interpreted so narrowly that it prevents a defendant from utilizing the full two-year period provided for in rule 3.850 to amend facially insufficient claims that were timely raised in the first place.²

Application of Spera to Solorzano’s Case

Here, the gap discussed in Spera did not prevent Solorzano from amending his facially insufficient claim. Solorzano’s conviction and sentence became final on July 15, 2005. He filed his rule 3.850 motion on December 27, 2006. The trial court denied grounds four and five by order dated January 18, 2007. At that point, Solorzano had more than six months remaining in which he could have filed a timely amended motion under rule 3.850(f) to cure the facial insufficiency. Accordingly, the postconviction court was not required to grant leave to amend because Solozano already had “leave to amend” under the plain language of rule 3.850(f). SeeMancebo v. State, 931 So. 2d 928, 929 (Fla. 3d DCA 2006) (“Because there was no denial on the merits and the 3.850 time limit had not expired, the defendant was allowed to file a second Rule 3.850 motion in an attempt to allege legally sufficient claims.”).

Therefore, we reverse the denial of ground four of Solorzano’s motion and remand for it to be stricken. The postconviction court may grant Solorzano leave to amend this ground for relief should it choose to do so, but it is not required to do so by Spera.

Ground Five

Ground five of Solorzano’s motion is similar to ground four. In ground five, Solorzano alleged that trial counsel was ineffective for failing to question prospective juror Coyne at all during voir dire and that Coyne was subsequently seated on the jury. The postconviction court denied Solorzano relief on this ground because he failed to allege that Coyne was actually biased as required by Carratelli.

Like the allegations in ground four, Solorzano’s allegations in ground five are facially insufficient under Carratelli. However, as in ground four, the postconviction court should have stricken the claim rather than denying it. Accordingly, for the same reasons discussed in ground four, we reverse the denial of ground five and remand for the postconviction court to strike this ground. Likewise, we note that the postconviction court may, although it is not required to, provide Solorzano with an opportunity to amend this ground if he can do so in good faith.

Ground Six

In ground six of his motion, Solorzano alleged that trial counsel was ineffective for failing to investigate and call “Bartender Dan.” Solorzano alleged that Bartender Dan, who was working at Gilligan’s on the day in question, would have testified that Solorzano had been drinking only sparingly and that he was not impaired when he left Gilligan’s. The postconviction court summarily denied relief on this ground, finding that Bartender Dan’s testimony would have been cumulative to testimony presented by Solorzano and Ms. D’Ettorre. We disagree.

Solorzano’s defense at trial was that, despite his blood alcohol level, he was not impaired and that the accident was not caused by any impairment. Instead, according to Solorzano, the accident was caused solely by his reaction to Ms. D’Ettorre vomiting on him. In furtherance of this defense, Solorzano testified that while he had had several drinks he was not impaired. He also presented Ms. D’Ettorre’s testimony that he was not impaired.

In this ground of his motion, Solorzano alleged that he told his counsel about Bartender Dan, who allegedly would have testified that Solorzano had no more than three drinks during the time he was at Gilligan’s and that Solorzano was not impaired when he was there. The postconviction court found that this evidence would be cumulative in light of the testimony presented by Solorzano and Ms. D’Ettorre. However, in light of the source of the proffered evidence, characterizing it as cumulative was improper.

Skipper v. South Carolina, 476 U.S. 1 (1986), Skipper offered testimony of his “good adjustment” to prison as mitigating evidence during the penalty phase of a capital murder case. The trial court allowed Skipper, his former wife, his mother, his sister, and his grandmother to testify to his adjustment to prison. However, when Skipper sought to call two jailers and a “regular visitor” to the stand to testify to his adjustment to prison, the trial court excluded the testimony as cumulative. The Supreme Court reversed, stating:

The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses-and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges-would quite naturally be given much greater weight by the jury.

Id. at 8; see also Valle v. State, 502 So. 2d 1225, 1226 (Fla. 1987) (finding that proffered evidence was not cumulative when it “differed in quality and substance” from that of the other witnesses).

Here, the testimony offered by Solorzano in support of his defense that he was not impaired was the sort of evidence that a jury would tend to discount. Clearly, Solorzano’s own testimony that he was not impaired would be considered self-serving. Further, other evidence had already established that Ms. D’Ettorre was so drunk that she could not walk unaided and that she had been physically ill in the parking lot of Gilligan’s. Thus, the jury would likely have tended to discredit Ms. D’Ettorre’s recollection and/or interpretation of Solorzano’s relative impairment.

Bartender Dan, however, would have been a relatively disinterested witness whose testimony on the issue would have “differed in quality” from that provided by Solorzano and Ms. D’Ettorre and would have been given greater weight by the jury. In light of this difference in the “quality” of the testimony, the postconviction court abused its discretion in finding that Bartender Dan’s testimony would have been cumulative and in summarily denying relief on this ground. Therefore, we reverse the summary denial of this ground and remand for an evidentiary hearing.

Ground Seven

In ground seven, Solorzano contends that trial counsel was ineffective for failing to investigate and call as a witness Solorzano’s brother, Roger. According to Solorzano, Roger would have testified to both Solorzano’s and Ms. D’Ettorre’s “demeanors” before they left Gilligan’s. The postconviction court denied relief on this ground, finding that Roger’s testimony would have been cumulative. The postconviction court is correct on this issue.

Unlike any testimony from Bartender Dan, the testimony that Roger would have allegedly given would not have been different in quality and substance from that given by Solorzano and Ms. D’Ettorre. Because Roger is Solorzano’s brother, the jury would have been just as likely to discredit his testimony as it would Solorzano’s. Therefore, the postconviction court did not abuse its discretion in finding that Roger’s proffered testimony was cumulative and that trial counsel was not ineffective for failing to present this cumulative evidence. Accordingly, we affirm the summary denial of this claim.

Ground Eight

In ground eight of his motion, Solorzano alleged that trial counsel was ineffective for failing to investigate and call as a witness “Fire Medic Ryan Kelleman.” According to Solorzano, Fire Medic Kelleman would have testified that Solorzano had vomit on his shirt at the scene, and this testimony would have supported Solorzano’s defense that the accident was caused by Ms. D’Ettorre vomiting on him. The postconviction court denied relief on this ground, finding that the proffered testimony would have been cumulative. Like it did in ground six, the postconviction court erred in its analysis of this ground for relief.

At trial, both Solorzano and Ms. D’Ettorre testified that Ms. D’Ettorre vomited in the car and all over Solorzano immediately before the accident. Solorzano’s defense was that this unexpected event, and not any alleged impairment, is what caused him to lose control of his truck. However, the State presented the testimony of the investigating police officer, who testified that she neither saw nor smelled vomit on Solorzano’s person or in his truck while she was at the scene investigating the accident. In his motion, Solorzano alleged that Fire Medic Kelleman, who was the first medic to arrive at the scene, would have corroborated his testimony that he had vomit all over him.

As with Bartender Dan, Fire Medic Kelleman’s proffered testimony would have differed in quality from that of Solorzano and Ms. D’Ettorre. As a medic responding to the scene, Fire Medic Kelleman would have been a disinterested witness whose testimony would allegedly have supported Solorzano’s testimony and conflicted with that of the only other disinterested witness, the investigating police officer. Because Fire Medic Kelleman was a disinterested witness, the jury would have been less likely to discredit his testimony concerning whether there was vomit on Solorzano than it would Solorzano’s testimony on the subject. Further, because Fire Medic Kelleman was a medic and a first responder, the jury might have been more likely to credit his testimony over that of the investigating officer.

Because Fire Medic Kelleman’s alleged testimony would have differed in quality from that given by Solorzano and Ms. D’Ettorre on a disputed issue, the alleged testimony was not cumulative, and the postconviction court abused its discretion in finding that it was. Therefore, we reverse and remand for an evidentiary hearing on this claim.

Affirmed in part; reversed in part; and remanded for further proceedings.

KELLY and KHOUZAM, JJ., Concur.

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

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Notes:

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Courtesy of David Edelstein

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FRAZIER BROWN, III, Petitioner,
v.
STATE OF FLORIDA, Respondent.

Case No. 2D09-538

District Court of Appeal of Florida, Second District.

Opinion filed July 31, 2009.

Petition Alleging Ineffective Assistance of Appellate Counsel. Hillsborough County, Nick Nazaretian, Judge.

Frazier Brown, III, pro se.

Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Respondent.

ORDER ON “REQUEST FOR CONFIDENTIAL COMMUNICATION DUE TO ADMINISTRATIVE RULE CHANGE”

ALTENBERND, Judge.

Frazier Brown, III, has a pending petition alleging ineffective assistance of appellate counsel. In this proceeding, he has filed a request that this court place either “open in presence of addressee only” or “confidential” on the envelope in which we deliver any court order, decision, or other court communication. He maintains that such language is required on the exterior of the envelope in order to prevent the Department of Corrections from opening his legal mail.

His request is one of many that this court has recently received from prisoners. These requests all explain that the Department of Corrections recently revised Florida Administrative Code Rule 33-210.102, effective April 23, 2009, and claim that mail is now treated as routine, nonprivileged communication even if it is marked as “legal.”

It is true that rule 33-210.102 was recently amended, although the effect of these amendments may not affect the rights of prisoners to the extent that they claim. In pertinent part, the rule states:

(d) The sender of incoming legal mail shall mark the outside of the envelope “legal-confidential,” “legal-open only in the presence of the addressee,” or similar language which would put the reader on notice that the mail is legal mail of a confidential nature. Mail from courts that is subject to public inspection under Chapter 119. F.S., need not be marked as legal mail. Incoming mail which does not include a marking on the outside of the envelope requesting that it be treated as confidential legal mail shall be treated as routine mail and shall be opened and examined, and is subject to being read by a designated employee outside the presence of the inmate.

(e) All incoming legal mail will be opened in the presence of the inmate to determine that the correspondence is legal mail and that it contains no unauthorized items. Only the signature and letterhead may be read.

(f) If legal mail is written in a foreign language the signature and letterhead shall be translated to confirm that it is legal mail. If the signature and letterhead indicate that it is legal mail, the mail shall be provided to the inmate. If the letterhead and signature cannot be translated by an employee at the facility, the envelope, letterhead, and signature of the correspondence may be photocopied and sent to another institution or the central office for translation.

Without evaluating the merits of this rule change, we deny the request to place “confidential” on the envelopes in which we deliver orders, opinions, and other court communications in all cases in which our files are open to the public. Our communications in those cases may be “legal” in nature, but they are not privileged in any way. We see no basis by which we could prohibit the Department of Corrections from viewing our communications to prisoners that contain only public record documents.

We emphasize that our denial of this request is limited to cases in which the court file is open to the public. We have not resolved whether such a request would be warranted in a proceeding where our files are restricted, such as an appeal from an order in a dependency proceeding or in a proceeding to terminate parental rights.

CASANUEVA, C.J., and FULMER, J., Concur.

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

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R. D. D., JR., A CHILD, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-0152.

District Court of Appeal of Florida, First District.

Opinion filed July 29, 2009.

An appeal from the Circuit Court for Alachua County. Stanley H. Griffis, III, Judge.

Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

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

WOLF, J.

Appellant challenges a final order of delinquency for the charges of possession of cocaine and paraphernalia. He asserts that the State failed to prove constructive possession of the cocaine and drug paraphernalia found in a jointly occupied vehicle. We determine that the State proved that appellant had constructive possession of the contraband, and affirm.

Appellant was a passenger in the back seat of a car stopped by Officer Narayan of the Gainesville Police Department on August 30, 2008. Two other individuals were in the vehicle, both in the front seat. Upon searching the vehicle, the police found a small (1.5″ x 1.5″) clear plastic bag in plain view on the left hand side of the rear seat. Appellant was in the right hand rear seat. Narayan said the bag was within appellant’s reach. It was later established that the bag contained cocaine.

Narayan gave Miranda warnings to all three occupants of the car, and they spoke to him. Narayan could not remember their exact words, but he claimed all three of them knew “there was cocaine in the car, just no one would claim it.”

On cross-examination, Narayan explained that it was getting dark that night and, due to the tint on the car windows, he could not see anything that was going on in the car before the stop. Narayan also admitted he could not see whether one of the other passengers had tossed the bag into the back seat before the door was opened.

In a constructive possession case, the State must prove beyond a reasonable doubt that “the accused had dominion and control over the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband.” Brown v. State, 428 So. 2d 250, 252 (Fla. 1983). Knowledge is not at issue in this case. A number of cases have made the broad statement that the combination of an item being in plain view and within a defendant’s proximity is insufficient to establish the control element of constructive possession. See, e.g., Taylor v. State, 319 So. 2d 114 (Fla. 2d DCA 1975); Johnson v. State, 456 So. 2d 923 (Fla. 3d DCA 1984). All of these cases, however, can be distinguished on their facts from the instant case. Many of the cases involve defendants that were neither owners nor occupants of the premises or areas in which more than one person had access to where the drugs were found. See, e.g., Taylor, 319 So. 2d 114 (proximity to marijuana in plain view was insufficient to establish constructive possession where defendant neither owned or occupied premises); Johnson v. State, 456 So. 2d 923 (several people were in an apartment not owned or occupied by the defendant).

Williams v. State, 742 So. 2d 509 (Fla. 1st DCA 1999), however, we found that evidence that drugs were in an area of a car that was in the exclusive possession of a defendant was sufficient to satisfy the control element of constructive possession. In the instant case, there is direct evidence of control; the cocaine was in the back seat, an area that was in the exclusive control of appellant. Appellant argues that the State failed to prove that one of the other occupants of the vehicle had not tossed the cocaine into the back seat when the car was stopped by police. The issue of how the cocaine ended up in an area exclusively in defendant’s control, however, was for the trier of fact to decide.

AFFIRMED.

WEBSTER and CLARK, JJ., CONCUR.

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

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MOSES TERRY, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-719.

District Court of Appeal of Florida, Fourth District.

July 29, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 07-11903CF10A.

Carey Haughwout, Public Defender, and Christine C. Geraghty, 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.

GERBER, J.

The defendant below appeals his conviction for solicitation to purchase cocaine because the State charged and proved solicitation to deliver cocaine. The State confesses error. We concur and, therefore, reverse and remand for a new trial on the proper charge.

The State’s information titled the charge as “Solicitation to Purchase Cocaine,” but alleged that the defendant “did unlawfully command, encourage, hire or request another person, to-wit: Detective J. Riche to deliver to him a controlled substance, to-wit: Cocaine, contrary to F.S. 893.03(2)(a)(4), F.S. 893.13(2)(a) and F.S. 777.04(2).” (emphasis added). Section 893.13(2)(a), to which the information refers, addresses the purchase of controlled substances, while section 893.13(1)(a), to which the information does not refer, addresses the sale, manufacture, or delivery of controlled substances. Despite these patent discrepancies, the defendant did not object to or move to dismiss the information.

At trial, the State presented evidence that the defendant approached an undercover officer posing as a street-level drug dealer and asked for “twenty . . . hard.” After the officer gave the defendant fake crack cocaine in exchange for twenty dollars, officers arrested the defendant for solicitation to purchase cocaine. After the State rested, the defendant moved for a judgment of acquittal, but on grounds unrelated to the discrepancy between the solicitation to purchase and the solicitation to deliver. The trial court denied the motion.

The State submitted proposed jury instructions which included an instruction that the State had accused the defendant of “Solicitation to Purchase Cocaine.” Another proposed instruction stated:

To prove the crime of criminal solicitation, the State must prove the following two elements beyond a reasonable doubt:

1. Moses Lee Terry solicited J. Riche to commit to purchase of cocaine [sic].

2. During the solicitation, Moses Lee Terry commanded, encouraged, hired, or requested J. Riche to engage in specific conduct, which would constitute the commission of purchase of cocaine or an attempt to commit purchase of cocaine . . . .

To solicit means to ask earnestly or to try to induce the person solicited to do the thing solicited.

The State also submitted a proposed verdict form which asked the jury to find the defendant guilty of “Solicitation to Purchase Cocaine, as charged in the Information” or not guilty. The defendant approved both the jury instructions and verdict form. The jury found the defendant guilty of solicitation to purchase cocaine. The judgment adjudicated the defendant guilty of solicitation to purchase cocaine, but the scoresheet indicated that the defendant had been convicted of solicitation to deliver cocaine.

The defendant then filed this appeal, realizing after trial that the information’s wording charged solicitation to deliver cocaine, and that the State’s evidence did not prove solicitation to purchase, but rather solicitation to deliver. Castillo v. State, 929 So. 2d 1180, 1182 (Fla. 4th DCA 2006) (“When a `discrepancy exists between the offense designated in the information heading and the crime depicted in the body of the instrument, the offense described in the body is the one with which the defendant is charged.’”) (citation omitted).

The defendant does not challenge the information’s contradictory language. Perley v. State, 947 So. 2d 672, 674 (Fla. 4th DCA 2007) (“So-called technical deficiencies in a charging instrument are waived if the defendant does not raise them before the state rests its case.”), citing Castillo, 929 So. 2d at 1181. Rather, the defendant alleges the trial court fundamentally erred by instructing the jury on solicitation to purchase cocaine when the State charged and proved solicitation to deliver cocaine. “It is a basic tenet of constitutional law that due process is violated when an individual is convicted of a crime not charged in the charging instrument.” Castillo, 929 So. 2d at 1181. “Fundamental defects . . . can be raised for the first time on appeal.” Id.

The State agrees that the information should have been read to charge the defendant with solicitation to deliver cocaine. However, because of the information’s discrepancies, the parties inadvertently led the trial court to errantly instruct the jury on solicitation to purchase instead, and the defendant was convicted of a crime not charged in the information. The parties agree that the defendant should receive a new trial, for which the charge should be solicitation to deliver cocaine. We concur.

Reversed and remanded.

GROSS, C.J., and DAMOORGIAN, J., concur.

Not final until disposition of timely filed motion for rehearing.

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CARL HARRISON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-4120.

District Court of Appeal of Florida, First District.

Opinion filed July 29, 2009.

An appeal from the Circuit Court for Bay County. Michael C. Overstreet, Judge,

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

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

PER CURIAM.

Carl Harrison, Appellant, challenges his judgments and sentences for resisting an officer without violence and possession of drug paraphernalia. Appellant raises two issues on appeal; the only issue that merits discussion is Appellant’s claim that the trial court erred in assessing investigative costs. We affirm Appellant’s judgments and sentences without further comment, but we reverse the imposition of investigative costs and remand for correction of the order of probation.

Section 938.27, Florida Statutes (2008), authorizes trial courts to impose costs of investigation on criminal defendants. Section 938.27(4) provides, “Any dispute as to the proper amount or type of costs shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of costs incurred is on the state attorney . . . .” In the instant case, even though Appellant objected to the imposition of costs at sentencing, the State did not present any evidence in support of its request for such costs. Without any evidence presented, the trial court could not have found these costs to be supported by a “preponderance of the evidence.” Because the trial court was without evidence supporting the request for any amount of investigative costs, it erred by entering an order imposing an award of those costs. The $132.50 in investigatory costs assessed against Appellant must be stricken. Accordingly, we reverse that portion of the order of probation and remand for the trial court to enter a corrected order, striking the costs of investigation. We affirm Appellant’s judgments and sentences in all other respects.

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

BENTON, LEWIS, and CLARK, JJ., CONCUR.

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

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TIMOTHY MAURICE SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-2262.

District Court of Appeal of Florida, First District.

Opinion filed July 29, 2009.

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

Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Timothy Maurice Smith, Appellant, appeals his convictions and sentences for two counts of burglary and one count of grand theft in an amount of $5,000 or more, but less than $20,000. He argues, among other things, that the evidence at trial was legally insufficient to support his conviction for the second burglary, which occurred on January 31, 2007. We agree, and accordingly, we reverse Appellant’s conviction for the burglary that occurred on January 31, 2007, and remand for vacation of the conviction and the resulting sentence. Finding no merit in Appellant’s remaining arguments, we affirm the remaining convictions and sentences without further discussion.

At trial, the State presented evidence that the victim’s home was burglarized on two occasions: once on January 27, 2007, and once on January 31, 2007. The only item taken in the second burglary was a DVD player. At trial, the State attempted to link Appellant to the second burglary by showing that he had inexplicable possession of the DVD player after the second burglary. If the State had succeeded in showing Appellant’s inexplicable possession of the DVD player, the evidence would have been sufficient to support Appellant’s conviction for the burglary that took place on January 31, 2007. See § 812.022(2), Fla. Stat. (2006) (providing that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property has been stolen”); Francis v. State, 808 So. 2d 110, 134 (Fla. 2001) (holding that this statutory inference may be applied to support a burglary conviction where the evidence shows that a burglary has necessarily occurred as an adjunct to the theft of the property in question). There is, however, no evidence in the record that Appellant possessed the DVD player, either constructively or actually. Therefore, we reverse Appellant’s conviction and sentence for the burglary that occurred on January 31, 2007, remand for vacation of that conviction and sentence, and affirm the remaining convictions and sentences.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

BARFIELD, PADOVANO, and LEWIS, JJ., CONCUR.

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

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JOHNNY R. JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2126.

District Court of Appeal of Florida, Fourth District.

July 29, 2009.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County, Lawrence Mirman and Sherwood Bauer, Judges, L.T. Case Nos. 06-695 CF, 05-776 CF, & 05-726 CF.

Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, and Johnny R. Johnson, Carrabelle, for appellant.

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

TUTER, JACK, Associate Judge.

The Defendant timely appeals his judgment and conviction for grand theft. The Defendant was adjudicated and sentenced for both grand theft and dealing in stolen property. Section 812.025, Florida Statutes (2006), prohibits convictions for both crimes where a single charging document charges “theft and dealing in stolen property in connection with one scheme or course of conduct.”Toson v. State, 864 So. 2d 552, 554 (Fla. 4th DCA 2004). Therefore, adjudicating and sentencing the Defendant on both of these counts violates section 812.025, Florida Statutes (2006).

The judgment and conviction for grand theft (L.T. Case No. 06-695) is reversed with directions to vacate the judgment and conviction only as to Count I. Because the Defendant was sentenced well below the maximum possible sentences for the other crimes of which he was adjudicated, we find no error as to the sentence imposed.

Affirmed in part, Reversed in part and remanded with directions to vacate the judgment for grand theft.

MAY and DAMOORGIAN, JJ., Concur.

Not final until disposition of timely filed motion for rehearing.

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ROONEY S. DERISMA, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1982.

District Court of Appeal of Florida, Fourth District.

July 29, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Martin J. Bidwill, Judge, L.T. Case No. 07-15127 CF10A.

Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

In this direct appeal from a conviction, the appellant alleges that his trial counsel was ineffective. We affirm, finding that the appellant has not shown any basis to raise ineffectiveness of counsel on direct appeal.

The State charged the appellant with cocaine possession and cannabis possession. The State also alleged that those offenses violated the appellant’s probation on an earlier case. At the final violation of probation hearing, the appellant, through counsel, presented witnesses and evidence seeking to show that the appellant did not possess the illegal substances. The trial court found that the appellant violated his probation by committing the new offenses, and sentenced the appellant to prison. However, at the jury trial on the new offenses, the appellant’s counsel did not present the defense raised at the final violation of probation hearing. The jury found the appellant guilty and the trial court sentenced the appellant to incarceration concurrent with the violation of probation sentence. In this direct appeal, the appellant alleges that his trial counsel was ineffective in not presenting the defense raised at the final violation of probation hearing.

The appellant has not shown any basis to raise ineffectiveness of counsel on direct appeal. Smith v. State, 998 So. 2d 516 (Fla. 2008), the supreme court stated:

Claims of ineffective assistance of trial counsel are usually presented in a postconviction motion under Florida Rule of Criminal Procedure 3.850. Under that rule, the circuit court can be specifically presented with the claim, and apply the Strickland standard with reference to the full record and any evidence it may receive in an evidentiary hearing, including trial counsel’s testimony. Thus, ineffective assistance claims are not usually presented to the judge at trial, and we have repeatedly stated such claims are not cognizable on direct appeal. . . . We recognize that ‘[t]here are rare exceptions where appellate counsel may successfully raise the issue on direct appeal because the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.’ Thus, in the rare case, where both prongs of Strickland — the error and the prejudice — are manifest in the record, an appellate court may address an ineffective assistance claim.

Id. at 522-23 (internal citations omitted); Jones v. State, 815 So. 2d 772, 772 (Fla. 4th DCA 2002) (“[Ineffective assistance of counsel will only be addressed on direct appeal for the first time when the facts giving rise to the claim are apparent from the face of the record, a conflict of interest is shown, or prejudice to the defendant is shown.”).

The appellant’s claim does not meet any of these criteria. We therefore decline to address that claim on this direct appeal. This opinion, however, is without prejudice to the appellant raising his claim in an appropriate 3.850 motion. We make no comment on whether such a motion would have merit or not.

Affirmed.

GROSS, C.J., and DAMOORGIAN, J., Concur.

Not final until disposition of timely filed motion for rehearing.

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CAS SIUS BUTLER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-0958.

District Court of Appeal of Florida, First District.

Opinion filed July 29, 2009.

An appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge, Judge.

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

Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

Appellant seeks review of his convictions for trespass and criminal mischief. Specifically, appellant asserts that the trial court erroneously denied appellant’s requested jury instruction on the defense of necessity. For the following reasons, we affirm.

The facts adduced at trial included in relevant part that just after midnight on June 6, 2007, Thelma Harvey heard her screen door open and the alarm on that door going off, and then heard appellant at her front door. When appellant began banging at the door, Harvey called 911 and hid inside a utility room. Appellant then kicked through a panel on the front door, reached in and unlocked the door, and entered the home. Two officers arrived at the scene with a K-9 unit and proceeded to enter the home, finding appellant in the first bedroom down the hallway. Officer Haire testified that appellant complied with him when he took appellant into custody. Appellant was not wearing shoes. Upon examining her house, Harvey found that nothing was missing. However, Harvey noticed that a shoebox in her bedroom closet had been stepped on, the covering of a nearby safe had been removed, and her dresser drawer was opened.

Appellant was charged with burglary of an occupied dwelling and criminal mischief. Appellant’s defense at trial was that he acted out of necessity in breaking into Harvey’s home. To support this claim, appellant introduced the testimony of Larinda Partridge, the next-door neighbor of Harvey. Partridge testified that on the night in question, appellant rang her doorbell, told her that men were chasing him, and asked her to call the police. Partridge thought that appellant looked very afraid and that he was looking around, as if to make sure no one was following him. In explaining why appellant was running, James Johnson testified as to the events that occurred earlier that night at a party nearby. Johnson testified that at that party, he was slapped by a man to whom he owed money. Johnson had seen appellant at that party but stated that he had not witnessed anyone hit or chase appellant and that there was no yelling or commotion before or after the slap.

Based on this evidence, appellant asked for a necessity instruction. The trial court denied the requested instruction and, subsequently, the jury found appellant guilty of the lesser-included offense of trespass as well as criminal mischief.

A criminal defendant is entitled to have the jury instructed on his theory of defense if there is any evidence to support that defense. See Chavers v. State, 901 So. 2d 409, 410 (Fla. 1st DCA 2005); Mathis v. State, 973 So. 2d 1153, 1157 (Fla. 1st DCA 2006). A trial court’s

failure to give a requested jury instruction constitutes reversible error where the complaining party establishes that: (1) [t]he requested instruction accurately states the applicable law, (2) the facts in the case support giving the instruction, and (3) the instruction was necessary to allow the jury to properly resolve all issues in the case.

Langston v. State, 789 So. 2d 1024, 1026 (Fla. 1st DCA 2001) (quoting Alderman v. Wysong & Miles Co., 486 So. 2d 673, 677 (Fla. 1st DCA 1986)). The standard necessity instruction requested in this case accurately states the applicable law. However, the trial court did not err in denying appellant’s requested instruction as there was insufficient evidence to support giving the instruction.

Specifically, to be entitled to a necessity instruction, appellant must show evidence of each element required to establish the defense of necessity. Williams v. State, 937 So. 2d 771, 772 (Fla. 1st DCA 2006) (citing Bozeman v. State, 714 So. 2d 570, 572 (Fla. 1st DCA 1998)). These elements include:

(1) the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others; (2) the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct; (3) there existed no other adequate means to avoid the threatened harm except the criminal conduct; (4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it; and (5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.

Id.

In determining the appropriateness of the instruction, the trial court should “examine the evidence in the light most favorable to the defendant to decide whether the necessary elements of the defense have been placed before the jury.” Mickel v. State, 929 So. 2d 1192, 1196 (Fla. 4th DCA 2006); see also Mathis, 973 So. 2d at 1157 (Fla. 1st DCA 2006).

In the instant case, however, no evidence was presented establishing appellant’s reasonable belief that there was an immediate threat of serious bodily injury to him. First, all witnesses at trial testified that they did not observe anyone actually chasing appellant. Second, appellant did not testify as to his alleged belief. Third, the testimony regarding appellant’s prior action at a party that evening did not establish that appellant was placed in fear for his safety. Because insufficient evidence was presented establishing that appellant’s actions were the result of a reasonable fear for his safety, all elements of the necessity defense were not established, and thus, the trial court did not err in denying the requested instruction. We therefore affirm.

AFFIRMED.

ALLEN and DAVIS, JJ., CONCUR.

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

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BENITO RAMIREZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-6500.

District Court of Appeal of Florida, First District.

Opinion filed July 29, 2009.

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

Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant, Benito Ramirez, appeals his conviction and sentence for firstdegree murder, raising three issues for our consideration. Only one of those issues, whether the trial court erred in denying his motion to suppress a taped police interrogation video, is a basis for reversal. The remaining issues do not merit discussion. Because the erroneous admission of the interrogation video necessitates a new trial, we reverse and remand for that purpose.

According to the State’s evidence at trial, Appellant was seen at a restaurant drinking and arguing with the victim, a female companion, on the night of the alleged murder. Appellant and the victim left the restaurant in Appellant’s truck. Later that night, Appellant’s truck was involved in an automobile accident. An officer who arrived on the scene could not locate the truck’s occupants. The next day, the victim’s body was discovered near the scene of the accident with multiple wounds, including a laceration on her back. Appellant fled to Texas on the night of the accident.

Approximately ten months later, police took him into custody and interrogated him. The interrogation was conducted in Spanish. Other officers who did not speak Spanish were also present. After being advised of his Miranda¹ rights, Appellant agreed to speak to police. Statements he made throughout the interview indicate reluctance to do so, however. For example, he stated multiple times that the interrogating officer was forcing or obligating him to answer his questions. He never squarely invoked his right to silence, however, so the interview continued. Appellant made several inconsistent statements throughout the interview. By the end of the interview, he admitted to having stabbed the victim after the accident, but he could not remember how many times. In the interview, Appellant claimed he had stabbed the victim in self-defense. In addition, Appellant made many other incriminating statements, such as a denial of knowledge of who the victim was, followed by admissions that he was with her on the night of the accident and opinions that she was “using” him and had “provoked everything.”

Appellant argues that the trial court should have suppressed the videotaped interview because his statements were obtained through the interrogating officer’s improper promises of help, thus rendering it involuntary. In addition, Appellant points to several of the officer’s statements suggesting, but not directly stating, what that help might be. The parties did not present any evidence at the suppression hearing. The only factors that entered into the trial court’s decision were the contents of the interview itself and the arguments of counsel. Thus, it had no means of assessing any additional factors, such as Appellant’s education level or past experiences, to assist it in determining the voluntariness of Appellant’s statements.

The record does not indicate how long the interview lasted, but the transcript length is 158 pages. The first mention of “help” comes seventy-six pages into the interview, after Appellant had given inconsistent statements about whether he was in possession of his truck at the time of the accident and after he had denied recognizing the victim from a photograph. By that time, Appellant had already protested several times that he was being forced or obligated to answer the detective’s questions. He raised this protest again when being presented with a photograph of the victim. In this context, the detective asked, “How am I going to help you if you’re lying to me and you don’t want to tell me the truth?” The detective then told Appellant what witnesses had said and stated, “[I]f you want us to help you, you need to help us also.” The detective referred to the “help” he could offer Appellant several times, but he never explained the limits of his authority. At one point, he cautioned Appellant, “This is your only chance.” He also warned Appellant that the only way he could “get out of this” was by telling the truth. The detective further stated, “[Y]ou have to tell me, because I’m the only one who speaks Spanish here.”

At one point, the detective offered to tell the state attorney that Appellant had cooperated. Even so, Appellant observed several times that the detective had not yet told him exactly how he could help him. Once, in response to such a question, the detective stated, “I’m going to explain it to you, but first I need to speak to you, because if they know that I promise you something, then nothing is valid, do you understand? You have to have a little bit of faith in me, just like I have to have faith in you. Do you understand what I’m saying?” After Appellant expressed dissatisfaction with this answer, the detective repeated, “I’m going to explain it to you, but I need to talk to your [sic] first, because if I tell you how, then it’s not valid.” This discussion occurred after the detective had advised Appellant, “I can help you, and I can tell the State Attorney that you cooperated . . . .”

Shortly after advising Appellant that he could not explain what help he was offering because “they” could not know he promised Appellant anything, the detective asked Appellant another question. Appellant responded, “Before I answer, tell me how are you going to help me?” The officer answered, “I’ve already explained that to you. Your life right now is in my hands.” Appellant replied, “Yes, I know. You’re the law; you can do with me whatever you want.” Up until this point, Appellant had not given many helpful answers. He had admitted to owning the truck that was involved in the accident and stated that he was drinking “a little” on the night of the accident. However, he would not even admit to the identity of his brothers.

Not long after the detective stated, “You’re life right now is in my hands,” Appellant admitted that the victim was “manipulating” him. When the detective asked a follow-up question to that admission, Appellant stopped, observing, “Sir, I’m sorry, but you haven’t told me how you’re going to help me.” The detective again urged Appellant to “have a little bit of faith” in him and stated that he was the “only one” there who could help Appellant.

Earlier in the interview, the detective had mentioned Appellant’s brothers, who were also in the country illegally. When Appellant asked where his brother Jose was, the detective told him that Jose was detained and that it was Appellant’s fault. He explained, “[W]e wouldn’t have found out about all of your brothers, about your family, if this had not happened. And I think you owe your brothers and your family the right to have an opportunity in this country . . . .”

During the course of the interview, Appellant asked the detective how he was going to help him at least ten times. The detective offered to help Appellant in exchange for cooperation many more times. In denying Appellant’s motion to suppress the interview, the trial court expressed some “reservations” about its decision, as well as a belief that it could grant the motion only if it found an express “quid pro quo” bargain. We must decide whether, under the circumstances of this case, these offers of help rendered Appellant’s statements involuntary, even though they were not directly tied to any specific benefits other than an offer to tell the prosecutor that Appellant cooperated. Because there is no dispute over what statements were made, our task is to review de novo the trial court’s conclusion that the officer’s statements did not render Appellant’s statements involuntary. See State v. Walter, 970 So. 2d 848, 851 (Fla. 2d DCA 2007).

It is well-settled that statements obtained through direct or implied promises are involuntary and, thus, inadmissible at trial. See Johnson v. State, 696 So. 2d 326, 329 (Fla. 1997). Although this exclusionary rule was originally instituted out of concerns for the truthfulness of such statements, it is now recognized that such statements may be excluded on due process grounds. Black v. State, 630 So. 2d 609, 615 (Fla. 1st DCA 1993). To exclude a statement on due process grounds, as Appellant urged the trial court to do, a court must find that it was obtained as a result of “overreaching” or coercive conduct by the police. Black v. State, 630 So. 2d 609, 615-17 (Fla. 1st DCA 1993); Schoenwetter v. State, 931 So. 2d 857, 867 (Fla. 2006). This Court has explained the standard governing whether a statement is involuntary due to overreaching or coercive conduct as follows:

For a confession or inculpatory statement to be voluntary, the totality of the circumstances surrounding the statement must indicate the statement was the result of a free and rational choice. The mind of the accused should, at the time, be free to act, uninfluenced by fear or hope. To exclude a confession or an inculpatory statement, it is not necessary that any direct promises or threats be made to the accused.

It is sufficient if the circumstances or declarations of those present are calculated to delude the prisoner as to his true position and exert an improper influence over his mind. A confession or inculpatory statement is not freely and voluntarily given if it has been elicited by direct or implied promises, however slight.

Walker v. State, 771 So. 2d 573, 575 (Fla. 1st DCA 2000) (internal citations omitted). Further, to exclude a statement as involuntary based on improper police tactics, a court must conclude that there is a causal connection between the improper conduct and the statement. Blake v. State, 972 So. 2d 839, 844 (Fla. 2007).

It is also well-settled that an interrogating officer may, without rendering a confession involuntary, promise to make a suspect’s cooperation known to the prosecutor or advise the suspect that “it would be easier on him” if he cooperated. Blake, 972 So. 2d at 844. Confessions or inculpatory statements induced by other types of promises may, however, result in suppression at trial. See id. Whether a particular confession or statement is rendered involuntary as a result of improper promises depends on the totality of the circumstances. See id. at 844-45; Walker, 771 So. 2d at 575. This Court has emphasized that “[e]ach case must be judged on its own unique facts.” Green v. State, 878 So. 2d 382, 384 (Fla. 1st DCA 2003).

The State suggests that Appellant’s statement cannot be considered involuntary because the detective did not make an express “quid pro quo” bargain with him. We disagree. While the presence of an express “quid pro quo” bargain for a confession will render the confession involuntary as a matter of law, see Walker, 771 So. 2d at 575, it is not correct to say that the absence of an express “quid pro quo” bargain insulates police misconduct from claims of undue influence or coercion. The test for determining whether a particular confession or statement is involuntary is still whether, in considering the totality of the circumstances, the reviewing court can conclude that the defendant was unable to make a choice free from unrealistic hope and delusions as to his true position, due to the officer’s conduct. Walker, 771 So. 2d at 575.

Here, the detective’s constant offers of unspecified help were improper. At one point, the detective said to Appellant, “[I]f you want us to help you, you need to help us also.” This statement arguably constitutes an offer of a “quid pro quo” bargain within the meaning of relevant case law. Because this statement is not the only one at issue, however, we decline to reach that conclusion definitively. Instead, we have determined that Appellant’s statement was induced by improper police conduct based on the totality of the circumstances. In addition to making this questionable statement, the detective strongly implied that he had some specific benefit in mind that he could confer on Appellant. While offering this benefit that he would explain later, the detective made references to immigration issues, the opportunity to “get out of this,” and arguably even the death penalty.

Additionally, when Appellant expressed the belief that the detective, as “the law,” could do anything he wanted with Appellant, the detective did not clarify his position. The detective’s failure to explain the limits of his authority is one major factor that sets this case apart from other cases upholding officers’ suggestions that they could help defendants. Cf Maqueira v. State, 588 So. 2d 221, 222-23 (Fla. 1991) (upholding the admission of a confession obtained after an officer agreed to “do whatever possible to help” the defendant but also advised the defendant that he “had no authority to make promises”); Green, 878 So. 2d at 384 (upholding the admission of a statement after officers suggested that the defendant’s cooperation would result in positive recommendations to the prosecutor but cautioned that “making a recommendation was `all’ they could do”). Another factor that sets this case apart is the constancy of the offers of help, even in the face of clear signs that Appellant did not understand the limits of the detective’s authority and that Appellant felt he was being forced to answer questions. Further, the officer appears to have used the fact that only he spoke Appellant’s language as a means of establishing a bond with him so that he could urge him to “have faith” in him and then promise him his “only chance” at help and the only way to “get out of this.” Finally, Appellant’s constant requests for the detective to give him more details of how he could help, even in one instance demanding such an explanation before giving an answer, show a preoccupation with the detective’s promises and an invited expectation of receiving a benefit in exchange for a statement. Even though Appellant’s preoccupation with the promises was readily apparent, the detective never stopped to explain that he had no control over what the prosecutor would choose to do with Appellant’s statement.

Under the unique circumstances of this case, the trial court should have excluded the interview from evidence, at least after the point when the detective began to offer “help.” Accordingly, we reverse and remand for a new trial to be conducted without the benefit of the involuntary interview statements.

REVERSED and REMANDED.

LEWIS and CLARK, JJ., CONCUR; BENTON, J., DISSENTS WITHOUT OPINION.

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

—————

Notes:

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