Florida Criminal Law Opinions

TAURUS LEJUANE JERIDO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-6302.

District Court of Appeal of Florida, First District.

Opinion filed July 29, 2009.

An appeal from the Circuit Court for Escambia County. T. Michael Jones, Judge,

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

Bill McCollum, Attorney General, and Charmaine Millsaps, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Following the denial of his dispositive motion to suppress, Taurus Lejuane Jerido, Appellant, appeals from his judgments and sentences for possession of cocaine with intent to sell, possession of methamphetamines, and possession of marijuana with intent to sell. Appellant argues that the trial court erred in applying the wrong standard when ruling on his motion to suppress the evidence seized as a result of a traffic stop. We agree, and, accordingly, reverse and remand for further proceedings. We decline to address Appellant’s remaining arguments on appeal.

At the suppression hearing, the trial court informed Appellant that his motion raised an issue of fact that was “up to the jury” to determine. Thereafter, Appellant entered a plea of nolo contendere to the three counts, reserving the right to appeal the denial of his motion to suppress as dispositive of the case.

The trial court’s remark at the suppression hearing indicates that it did not utilize the proper standard for resolving a motion to suppress. When ruling on a motion to suppress, it is the responsibility of the trial judge, not the jury, to resolve issues of fact. Ray v. State, 896 So. 2d 974, 975 (Fla. 2d DCA 2005); Vasta v. State, 662 So. 2d 1327, 1328 (Fla. 2d DCA 1995); Johnson v. State, 566 So. 2d 888, 890 (Fla. 4th DCA 1990); Parlee v. State, 899 So. 2d 458, 460 (Fla. 5th DCA 2005). The trial court in the instant case reversibly erred in determining that questions of fact in a motion to suppress were matters for the jury to resolve. Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

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

Case No. 5D09-555.

District Court of Appeal of Florida, Fifth District.

Opinion filed July 24, 2009.

3.800 Appeal from the Circuit Court for Marion County, Willard Pope, Judge.

Richard A. Bozzuto, Lake City, pro se.

Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Appellant, Richard Bozzuto, challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

Bozzuto pled guilty to attempted sexual battery on a child under the age of twelve in violation of section 794.011(2), Florida Statutes. At sentencing, Bozzuto appeared for two separate cases: attempted sexual battery and corruption by threat. Bozzuto was sentenced to twenty years’ incarceration followed by fifteen years’ sex offender probation, for a total sentence of thirty-five years for the attempted sexual battery. He received a concurrent five-year sentence for his corruption by threat conviction. Bozzuto subsequently filed the instant rule 3.800(a) motion, asserting that his sentence for attempted sexual battery was illegal because it exceeded the maximum penalty under section 777.04(4)(b), Florida Statutes (2006), of thirty years. According to Bozzuto, his thirty-five year sentence could only have been legal if he was given the maximum sentence for attempted sexual battery, thirty years, plus five years on the corruption by threat charge, with the sentences to run consecutively.

The trial court denied the motion, ruling that, under Florida Rule of Criminal Procedure 3.704, the statutory maximum could be exceeded when the Criminal Punishment Code scoresheet provided for a greater sentence. However, this is only the case when the lowest permissible sentence under the Criminal Punishment Code exceeds the statutory maximum. Fla. R. Crim. P. 3.704(d)(5); Leduc v. State, 803 So. 2d 898, 899 (Fla. 5th DCA 2002); Cillo v. State, 913 So. 2d 1233, 1234 (Fla. 2d DCA 2005).

In this case, the lowest permissible sentence under the Criminal Punishment Code scoresheet was 97.8 months’ (or 8.15 years) incarceration. The maximum sentence that could be imposed was thirty years. Because the lowest permissible sentence under the Criminal Punishment Code did not exceed the statutory maximum, the trial court erred by imposing a sentence that exceeded the maximum provided by section 777.04(4)(b). Id. We therefore reverse the order denying relief and remand for resentencing, or to allow the State to withdraw from the plea agreement. See Thomas v. State, 932 So. 2d 1221 (Fla. 5th DCA 2006).

REVERSED and REMANDED for further proceedings.

ORFINGER and TORPY, JJ., concur.

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ROBERT J. AUMILLER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-1211.

District Court of Appeal of Florida, Fifth District.

Opinion filed July 24, 2009

3.800 Appeal from the Circuit Court for Osceola County, Jon B. Morgan, Judge.

Robert J. Aumiller, Blountstown, Pro Se.

Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, J.

Robert J. Aumiller appeals the trial court’s summary denial of his motion for additional jail credit filed under Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s summary denial of the motion and remand for further consideration.

On July 5, 1994, Aumiller was sentenced to twelve years in prison followed by ten years probation. After being released from prison, Aumiller violated his probation and was resentenced to seventeen years in prison with “credit for all Department of Corrections time previously served, together with credit for 109 days county jail served pending sentencing [on the violation of probation].” In his motion to correct sentence, Aumiller claims that while he was awarded 327 days of jail credit at the time of his 1994 sentencing, he was not awarded this jail credit when he was resentenced after violating his probation.

In denying Aumiller’s motion, the trial court concluded that its directive that the Department of Corrections (“DOC”) give Aumiller credit for all time previously served would have included any presentence jail credit. If DOC included the time that Aumiller spent in the county jail prior to his 1994 sentencing in its time-served calculation, then the trial court is correct. However, whether DOC included Aumiller’s jail time credit in its calculations cannot be determined from the record before us. Consequently, we reverse the trial court’s summary denial of Aumiller’s rule 3.800 motion seeking additional credit and remand for further review of this matter. On remand, the trial court shall determine if DOC properly included the time that Aumiller spent in the county jail between October 1993 and his original sentencing on July 5, 1994, in calculating his jail time credit.¹

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GRIFFIN and TORPY, JJ., concur.

—————

Notes:

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JOSEPH ALAN MILKEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-5423.

District Court of Appeal of Florida, Second District.

Opinion filed July 24, 2009.

Appeal from the Circuit Court for Lee County, Edward J. Volz, Jr., Judge.

James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

In this appeal, we are asked to decide whether the trial court committed reversible error by failing to conduct a Nelson¹ inquiry before proceeding with Milkey’s revocation hearing. We answer this question in the affirmative and reverse.

Milkey was charged with violation of probation. At the beginning of the revocation of probation hearing, the following exchange took place:

[MILKEY]: Your Honor, I’m not really happy with my counsel. Is there anyway —

THE COURT: You can represent yourself if you wish.

[COUNSEL]: He does have Ms. Black on the new charges, and I have spoken with Ms. Black. She is not taking over this case, but —

THE COURT: She’s not here. You can have Ms. Chewning or you can represent yourself.

What are we doing? Are we going to have a hearing?

[COUNSEL]: If I can just have one moment to explain something. We’re ready for a hearing, Your Honor.

THE COURT: Please call your first witness.

The revocation hearing proceeded with the same court-appointed counsel representing Milkey. The court found Milkey in violation of probation and sentenced him to thirty-six months in prison. The court never made an inquiry of Milkey or of his court-appointed counsel as to the reasons why Milkey was “not really happy” with counsel to determine whether Milkey’s displeasure had anything to do with counsel’s incompetence. Based on the facts of this case, this was error.

Pursuant to Nelson, when a defendant seeks to discharge his court-appointed counsel prior to trial, the trial court must determine whether the defendant is unequivocally requesting counsel’s discharge, and if so, the reason for the request.Montgomery v. State, 1 So. 3d 1228, 1230 (Fla. 2d DCA 2009); Maxwell v. State, 892 So. 2d 1100, 1102 (Fla. 2d DCA 2004).² The trial court’s inquiry must be sufficient to “determine whether or not appointed counsel is rendering effective assistance.” Howell v. State, 707 So. 2d 674, 680 (Fla. 1998). The procedural steps to follow when a defendant asks to discharge his court-appointed counsel are aptly outlined in Maxwell:

The first step in the procedure is the preliminary Nelson inquiry in which the court ascertains whether the defendant unequivocally requests court-appointed counsel’s discharge and the court asks the reason for the request. The answer to the preliminary inquiry determines the next steps. If a reason for the request is court-appointed counsel’s incompetence, then the court must further inquire of the defendant and his counsel to determine if there is reasonable ause to believe that court-appointed counsel is not rendering effective assistance and, if so, appoint substitute counsel. If the reasons for the request do not indicate ineffective assistance of counsel, then no further inquiry is required. If no further inquiry is required, or if after further inquiry there is no reasonable cause to believe that court-appointed counsel is not rendering effective assistance, and the defendant persists in a desire to discharge counsel, then the court must inform the defendant that he is not entitled to a court-appointed substitute counsel and that he would be exercising his right to represent himself.

892 So. 2d at 1102 (citations omitted, emphasis added). If the court summarily denies the request to discharge counsel, it must make a determination on the record as to why it is denying the request. Montgomery, 1 So. 3d at 1230; Jones v. State, 658 So. 2d 122, 125 (Fla. 2d DCA 1995).

The trial court’s inquiry “can only be as specific as the defendant’s complaint.” Morrison v. State, 818 So. 2d 432, 440 (Fla. 2002). For that reason, a Nelsonhearing is not necessary if the defendant expresses generalized dissatisfaction with his attorney or asserts “general complaints about defense counsel’s trial strategy” without making any formal allegations of incompetence. Id.; see also Tucker v. State, 754 So. 2d 89, 92 (Fla. 2d DCA 2000) (stating that trial court does not abuse its discretion by not conducting a Nelson inquiry when the defendant’s “dissatisfaction with counsel is articulated in terms of general complaints which do not suggest ineffective assistance of counsel”). However, we have stated that “[t]he cautious approach suggests that, when in doubt, a trial court should proceed with further inquiry.” Tucker, 754 So. 2d at 92-93.

When a trial court conducts a Nelson inquiry, the appellate court applies an abuse of discretion standard to determine whether the Nelson inquiry was adequate.Augsberger v. State, 655 So. 2d 1202, 1204 (Fla. 2d DCA 1995); Wilson v. State, 889 So. 2d 114, 118-19 (Fla. 4th DCA 2004). However, we have held that a trial court’s failure to conduct any preliminary Nelson inquiry in response to a defendant’s wishes to discharge court-appointed counsel is a structural defect constituting reversible error. See Augsberger, 655 So. 2d at 1204 (“We have held that a trial court’s failure to conduct a proper Nelson inquiry constitutes reversible error.”);Maxwell, 892 So. 2d at 1103 (“The failure to conduct an appropriate Nelson inquiry is a structural defect in the trial requiring reversal as per se error.”).

In this appeal, Milkey contends that he wanted to discharge his counsel, but the trial court improperly truncated the procedure required by Nelson when it cut him off and failed to ascertain the reason why he wanted to discharge counsel. We agree with Milkey. We specifically address the State’s arguments because they are interrelated with the reasons why Milkey’s position prevails.

The State seeks affirmance based on two theories. First, the State argues that Milkey’s complaint was nothing more than a generalized expression of unhappiness with counsel, thereby negating the necessity of a Nelson hearing. Second, the State argues that a Nelson hearing was not necessary because Milkey waived the issue when, after talking with his court-appointed counsel, he silently acquiesced in his counsel’s statement that they were ready to proceed with the violation of probation hearing. The State’s arguments fail for several reasons.

First, the trial court never determined whether Milkey’s “unhappiness” was due to his belief that counsel was ineffective or whether it was simply a generalized feeling of unhappiness with counsel. The trial court cut off both Milkey and his counsel midsentence when it is apparent from the transcript that, if given the opportunity, they would have explained the reasons for Milkey’s “unhappiness.” Under Nelson, the trial court should make a sufficient inquiry of both the defendant and his counsel to determine whether there is reasonable cause to believe that counsel is not rendering effective assistance. See Jones, 658 So. 2d at 125. Nelsonmandates that the court make findings on this issue on the record. Burgos v. State, 667 So. 2d 1030, 1032 (Fla. 2d DCA 1996). Here, it certainly behooved the court to make further inquiry regarding Milkey’s complaint about counsel.

This case is similar to Maxwell. In that case, when defense counsel stated that the defendant wanted to discharge counsel, the trial court immediately gave the defendant the options of either representing himself or keeping his court-appointed counsel. Maxwell, 892 So. 2d at 1101-02. This court criticized the trial court for failing to make a preliminary Nelson inquiry and “remov[ing] the possibility of discharging counsel for incompetence before [the defendant] had a chance to speak on the matter.” Id. at 1102-03. We concluded that, under the circumstances, the trial court’s failure to conduct a Nelson inquiry was “a structural defect” requiring reversal as per se error. Id. at 1103. We specifically distinguished Augsberger, another case where we had held that a Nelson inquiry was unnecessary:

The State urges affirmance on authority of Augsberger v. State, 655 So. 2d 1202, 1204-05 (Fla. 2d DCA 1995), which held that a Nelson inquiry is not required when the defendant does not indicate a desire to discharge court-appointed counsel and to receive a replacement. However, Augsberger addressed the necessity of conducting a full Nelson inquiry after the defendant’s response to the preliminary inquiry, not the necessity of the preliminary inquiry, which provides the opportunity for such desires to come to light.

Id. (emphasis added).

Similarly, in Jones, the defendant complained about “continued dissatisfaction with his court-appointed counsel.” 658 So. 2d at 124. “Without inquiring of [the defendant] and his attorney about the substance of the complaint,” the trial court immediately asked the defendant if he wanted to represent himself. Id. We reversed, concluding that the trial court had abused its discretion because it “never inquired of the appellant and his court-appointed counsel as to whether there was reasonable cause to believe that counsel was being ineffective.” Id. at 125. We also noted that the court had not made any findings on the record as to why it was summarily denying the request to discharge counsel. Id. We concluded:

We recognize the burden placed on a trial court by Nelson . . . when confronted by a defendant, who is often obstreperous, claiming ineffective assistance of court-appointed counsel. We realize that the procedures mandated by these cases will often involve a tedious and time-consuming process designed to test the frustration and patience level of the most able trial judge, especially when the request for discharge comes on the day of trial and a jury venire of inconvenienced citizens is impatiently waiting in the courthouse for the jury selection process to begin. We must emphasize, however, the importance of strict adherence to these requirements and the real potential for reversal should they not be followed, thereby resulting in a needless expenditure of judicial resources.

Id. at 126.

As in Maxwell and Jones, in this case we must reverse. As in Maxwell, the trial court ignored the need for a preliminary Nelson inquiry, which would have given Milkey the opportunity to express his desire to discharge counsel and explain the reasons for his request. Upon hearing that Milkey was “not really happy” with counsel, the court should have allowed him to finish his sentence to determine the basis of his dissatisfaction and whether some type of Nelson inquiry was necessary. The trial court should have given Milkey the opportunity to have his desire to discharge counsel “come to light.” Maxwell, 892 So. 2d at 1103; see also Rios v. State, 696 So. 2d 469, 471 (Fla. 2d DCA 1997) (stating that a proper Nelson inquiry begins with a determination of the reason why the defendant wishes to change attorneys to determine whether the request is based on ineffective assistance). Based upon the options given to Milkey by the trial court—discharging his counsel and representing himself or proceeding with current counsel—it is apparent that the trial court understood Milkey’s statement as an effort to discharge counsel. Even though Milkey might not have ultimately been entitled to a full Nelson/Faretta hearing, the trial court should have further inquired to determine whether he, in fact, wished to discharge counsel and the basis for his request. As in Jones, the trial court here “leapfrogged” over the Nelson inquiry step, either not recognizing that it should have made further inquiry or assuming that Milkey’s counsel was effective despite Milkey’s unhappiness. On the record before us, the trial court was not permitted to assume that Milkey’s dissatisfaction was not based on counsel’s incompetency or that a Nelson hearing, if conducted, would dispel any notion of counsel’s incompetency. By not clarifying the reasons why Milkey was “not really happy” with counsel and by cutting him off midsentence, the court prematurely limited Milkey’s options³ to self-representation or keeping his existing counsel.

The State’s reliance on Morrison, 818 So. 2d at 432, is misplaced. In that case, while the defendant had not made a formal allegation of incompetency, he had sent letters to the court which connected his complaints to the amount of communication between him and counsel, counsel’s refusal to provide copies of legal documents, and counsel’s lack of effort to contact witnesses. Id. at 441. The court found that such “complaints can best be described as general complaints about his attorney’s trial preparation, witness development, and trial strategy” which do not require a Nelson inquiry. Id. The supreme court in Morrison also noted that while the trial court had not conducted a full Nelson inquiry, it had inquired of defense counsel concerning the defendant’s complaints about counsel and had allowed the defendant an opportunity to express his concerns. Id. The court also highlighted the fact that the defendant had not persisted in his complaints against counsel “when given the opportunity to do so” by the court. Id. (emphasis added). The supreme court concluded:

As the record indicates, the court made sufficient inquiry to determine whether there was reasonable cause to believe that counsel was not rendering effective assistance. Because Morrison was merely noting his disagreement with his attorney’s frequency of communication, trial strategy, and trial preparation—and was not asserting a sufficient basis to support a contention that his attorneys were incompetent— we find Morrison’s claim is without merit.

Id. at 442 (emphasis added). The facts in this case are distinguishable from Morrison because the trial court here did not make any inquiry to determine whether Milkey’s counsel was not rendering effective assistance and Milkey was not given any opportunity to articulate the basis for his dissatisfaction with counsel.

Other cases which have found a Nelson inquiry unnecessary also reflect some discussion between the trial court and the defendant supporting a conclusion that the defendant’s complaints had nothing to do with allegations of counsel’s incompetence. See, e.g., Gudinas v. State, 693 So. 2d 953, 961 (Fla. 1997) (holding that failure to conduct Nelson inquiry was not error where defendant never specifically claimed that counsel was acting incompetently despite the fact that “the trial judge went to great lengths” to determine the basis of his complaint); Lowe v. State, 650 So. 2d 969, 975 (Fla. 1994) (rejecting Nelson inquiry where defendant was unable to articulate specific reasons for his assertion that counsel “was not doing his best to represent him,” despite the court’s “persistent questioning”); Dunn v. State, 730 So. 2d 309, 310-11 (Fla. 4th DCA 1999) (reflecting an exchange between the defendant and the trial court regarding the reasons why defendant was dissatisfied with counsel). No such discussion occurred in this case.

We note that it is the rare occasion when a criminal defendant’s initial statement clearly and unequivocally requests the discharge of his court-appointed counsel. Therefore, when an exchange like the one in this case occurs, the trial court must make some preliminary inquiry to determine the basis of the defendant’s unhappiness with counsel. See Maxwell, 892 So. 2d at 1102 (“T

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KEVIN DANIEL WHITE, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-4237.

District Court of Appeal of Florida, Second District.

Opinion filed July 24, 2009.

Appeal from the Circuit Court for Pinellas County, Richard A. Luce, Judge.

John H. Trevena and Lauren N. Dabule, Largo, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Kevin Daniel White appeals the circuit court’s denial of his pro se motion to withdraw his plea under Florida Rule of Criminal Procedure 3.170(l). The circuit court denied the motion without conducting an evidentiary hearing. Because the allegations of the motion were legally sufficient and were not conclusively refuted by the record, we reverse the order denying the motion and remand for an evidentiary hearing.

The State charged Mr. White with murder in the first degree. On May 28, 2008, Mr. White filed a letter asking the circuit court to dismiss defense counsel based on seven complaints. Mr. White subsequently filed a written motion to dismiss counsel and filed two bar grievances against defense counsel. The circuit court never ruled on Mr. White’s motions to dismiss. Mr. White entered a negotiated guilty plea on June 16, 2008, in exchange for the State’s agreement to waive the death penalty.

At the beginning of the plea hearing, the State requested that Mr. White acknowledge that he was waiving his motions to dismiss defense counsel and state that he was “fine with his counsel.” The following discussion ensued:

THE COURT: All right. I read — I read the letter into the record. Certainly, I —I gave copies to counsel, and I just want to make sure, Mr. White, that this is a decision that you want to —you know, you want to enter into.

The suggestion is right now that you are entering a plea of guilty to the charge contained in the indictment, murder in the first degree, in exchange for a life sentence.

[MR. WHITE]: At this time, it’s about the only option, sir.

At that point, the circuit court began the plea colloquy. As part of the colloquy, the court asked Mr. White whether anyone was threatening or forcing him to enter the plea. He responded, “No, sir. I just feel that if I go to trial, I’m gonna lose with the defense I have.” When asked whether he was satisfied with counsel’s advice and representation, Mr. White stated, “Satisfied with counsel? I do believe there is a lack of medical experts and people who could have helped my case, consulted and . . . a lack of investigation.” After further inquiry by the court, Mr. White acknowledged that defense counsel had deposed two experts but that their opinions would not be favorable. The circuit court found that Mr. White’s plea was freely and voluntarily made and that he was satisfied with counsel. The court then adjudicated him guilty and sentenced him to life imprisonment. Afterward, in response to a question from the circuit court about whether he had any questions, Mr. White asked: “I’d just like to know how much time I’m gonna have when I get up there to put in the proper motion to possibly fight this from up there?”

On July 3, 2008, Mr. White filed a pro se rule 3.170(l) motion to withdraw plea. Mr. White’s motion incorporated by reference his previous requests to dismiss counsel.¹ Mr. White alleged that counsel had misled him into entering the plea. In particular, Mr. White stated that defense counsel had told him that his motions to dismiss counsel had been denied. The circuit court denied Mr. White’s rule 3.170(l) motion without a hearing on the ground that the transcript of the plea hearing conclusively refuted his claim.

We review the denial of a motion to withdraw plea for abuse of discretion. Boule v. State, 884 So. 2d 1023, 1024 (Fla. 2d DCA 2004). If the motion to withdraw plea is facially sufficient, the circuit court must either grant ” `an evidentiary hearing or accept the defendant’s allegations . . . as true [unless] they are conclusively refuted by the record.’ “ Bayer v. State, 902 So. 2d 353, 354 (Fla. 2d DCA 2005) (quoting Boule, 884 So. 2d at 1024); see also Townsend v. State, 927 So. 2d 1064, 1065 (Fla. 4th DCA 2006).

Mr. White’s motion was facially sufficient. See Garcia v. State, 846 So. 2d 660, 661 (Fla. 2d DCA 2003) (holding that a rule 3.170(l) motion based on the allegation that counsel misled the defendant into entering the plea was facially sufficient because it challenged the voluntariness of the plea). A review of the plea colloquy reveals that Mr. White never responded to the State’s request that he waive his prior motions to dismiss counsel. Mr. White’s statements during the plea hearing do not reveal the nature of any communications between his defense counsel and him. In fact, nothing in the record refutes Mr. White’s allegation that counsel told him that his motions to dismiss counsel had been denied. Thus the circuit court had to accept Mr. White’s allegations as true. Indeed, Mr. White’s inquiry at the conclusion of sentencing about how he could continue to “possibly fight this” lends additional support to the motion instead of refuting it. Because Mr. White’s motion is facially sufficient and not conclusively refuted by the record, the circuit court erred when it denied the motion without an evidentiary hearing. See Bayer, 902 So. 2d at 355;Townsend, 927 So. 2d at 1065-66.

We note that ” `once a defendant indicates his desire to avail himself of the rule 3.170(l) procedure, the trial court must appoint conflict-free counsel to advise and assist the defendant in this regard.’ “ Smith v. State, 849 So. 2d 485, 485-86 (Fla. 2d DCA 2003) (quoting Lester v. State, 820 So. 2d 1078, 1078 (Fla. 1st DCA 2002)). Therefore, we reverse the order summarily denying Mr. White’s rule 3.170(l) motion and remand for an evidentiary hearing where Mr. White shall be represented by conflict-free counsel.

Reversed and remanded with directions.

FULMER and DAVIS, JJ., Concur.

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

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Notes:

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DONALD MARTIN BRAMBLETT, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-2202

District Court of Appeal of Florida, First District.

Opinion filed July 24, 2009.

An appeal from the Circuit Court for Gulf County, Hentz McClellan, Judge.

Donald Martin Bramblett, pro se, Appellant.

Bill McCollum, Attorney General, Office of the Attorney General; Sarah J. Rumph, Assistant General Counsel, Florida Parole Commission, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for

PER CURIAM.

On April 30, 2008, appellant Donald Martin Bramblett filed a notice of appeal seeking review of the trial court’s “Order Dismissing Motion for Rehearing.” Because an order denying rehearing due to untimeliness is not an appealable order under rule 9.130(4), Florida Rules of Appellate Procedure, this Appellee. court issued an order on July 7, 2008, directing the Appellant to show cause why the appeal should not be dismissed. Appellant responded, and this court issued an order August 4, 2008, directing Appellant to amend his notice of appeal to indicate that he sought review of the final order entered August 16, 2007, denying the writ of habeas corpus. The briefing schedule proceeded and is now complete.

This court’s jurisdiction may be “raised at any time . . . because jurisdiction derives only from constitutional or statutory authority or in consequence of fundamental common-law principles.” Crapp v. Criminal Justice Standards & Training Comm’n, 753 So. 2d 787 (Fla. 3d DCA 2000). “[J]urisdiction `cannot be conferred by stipulation or endowed by action of the court.’” Id., (quoting Lovett v. City of Jacksonville Beach, 187 So. 2d 96, 99 (Fla. 1st DCA 1966)). Because this court is constrained to act only within its established jurisdiction, the court recedes from the portions of the order issued on August 4, 2008, determining that rendition of the final order was delayed, and concludes that the notice of appeal, as amended, was ineffective to confer jurisdiction on this court to review the final order denying habeas corpus. Accordingly, we dismiss the appeal. Dale v. State, 981 So. 2d 1222 (Fla. 1st DCA 2008).

The final order denying the writ of habeas corpus was entered by the circuit court on August 16, 2007, and Appellant/Petitioner’s motion for rehearing of that final order was placed in the hands of prison officials for mailing on August 30, 2007 (14 days after entry of the final order). Only timely motions for rehearing toll the rendition of the final order for purposes of the thirty-day time limit to commence an appeal of the final order. Fla. R. App. P. 9.020(h)(1) & 9.110(b). Under rule 1.530(b), Florida Rules of Civil Procedure, motions for rehearing must be filed within ten days of the date of filing the judgment. The trial court applied rule 1.530, and dismissed the motion for rehearing as untimely on April 15, 2008. Appellant’s original notice of appeal was filed on April 30, 2008, over 8 months after entry of the final order.

The proceedings in the circuit court were not appellate in nature. Nowhere in the initial pleading did Appellant/Petitioner seek recalculation of a parole date, compliance with due process in administrative proceedings, or any other review of final agency action. The relief Petitioner sought in the circuit court action was “that his 42 year old robbery conviction be `terminated’ and this court order ‘immediate release’ from incarcerated position and/or any other relief this court deems appropriate.” Because no quasi-judicial administrative action was at issue, the rules of civil procedure, including the requirement that motions for rehearing be filed within ten days of the date of the entry of the order to be reheard, applied. Surratt v. Freeman, 924 So. 2d 905 (Fla. 1st DCA 2006).

Appellant’s subsequent amendment of the notice of appeal substituting the final order as the order to be reviewed did not remedy the untimeliness of the notice of appeal or confer jurisdiction upon this court. “Failure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect. See Comm. Notes to Florida Rule of Appellate Procedure 9.110.” First Nat’l Bank in Fort Myers v. Florida Unemployment Appeals Comm’n, 461 So. 2d 208 (Fla. 1st DCA 1984)(reference to committee notes to 1977 amendment of Rule 9.110); David M. Dresdner, M. D., P. A. v. Charter Oak Fire Ins. Co., 972 So. 2d 275 (Fla. 2d DCA 2008). Late filing of the notice of appeal “is a defect no one can correct, not even the court.” Hawks v. Walker, 409 So. 2d 524, 525 (Fla. 5th DCA 1982).

Because the habeas corpus proceedings in the circuit court did not seek an appellate remedy, the rules of civil procedure applied and the motion for rehearing was untimely. Rendition of the final order was not tolled by the filing of the untimely motion for rehearing, and the notice of appeal was thus untimely.

Accordingly, this appeal is DISMISSED.

KAHN, DAVIS, and CLARK, JJ., CONCUR.

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

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JASON WINDHAM, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-2127.

District Court of Appeal of Florida, Fifth District.

Opinion filed July 24, 2009.

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

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

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

PER CURIAM.

Jason Windham timely appeals his conviction by jury verdict for aggravated assault with a deadly weapon and twenty-year minimum mandatory prison sentence imposed pursuant to the 10-20-Life statute.¹ We find no error in the trial court’s denial of Windham’s motion to suppress his confession, and find all other claimed errors related to Windham’s conviction to be harmless in light of his confession. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.

LAWSON, J., concurring specially, with opinion.

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Notes:

LAWSON, J., concurring specially.

I agree with the majority’s resolution of this case as to the issues raised. When reviewing the record, however, I noted that all parties at sentencing clearly believed that the court had no discretion to do anything but impose the twenty-year minimum mandatory sentence. This may not have been true. Windham was born on May 6, 1987, and was nineteen years old at the time he committed the offense, a third degree felony, on July 6, 2006. If Windham has not previously been classified as a youthful offender, it appears that he would have qualified for a youthful offender sentence. See § 958.04(1), Fla. Stat. (effective to Sept. 30, 2008) (“The court may sentence as a youthful offender any person: (a) Who is at least 18 years of age . . .; (b) Who is found guilty of . . . a crime which is, under the laws of this state, a felony¹ if such crime was committed before the defendant’s 21st birthday; and (c) Who has not previously been classified as a youthful offender….”). The minimum mandatory sentencing provisions of the 10-20-life statute do not supersede the youthful offender sentencing provisions. Darrow v. State, 789 So. 2d 552 (Fla. 5th DCA 2001); State v. Wooten, 782 So. 2d 408 (Fla. 2d DCA 2001). Therefore, it appears that the trial court could have imposed a lesser penalty by sentencing Windham as a youthful offender. Id. This point can be argued in connection with a motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800(c), filed anytime within 60 days after issuance of our mandate. Cummings v. State, 888 So. 2d 732 (Fla. 5th DCA 2004) (Torpy, J., concurring specially).

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Notes:

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A.D., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-1930.

District Court of Appeal of Florida, Second District.

Opinion filed July 24, 2009.

Appeal from the Circuit Court for Polk County, J. Michael McCarthy, Judge.

James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.

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

CASANUEVA, Chief Judge.

A.D. appeals the trial court’s order finding her guilty of contributing to the delinquency or dependency of a child, withholding adjudication, and placing her on a term of probation. Because the finding of guilt is for an offense that was not charged in the delinquency petition and is not a lesser-included of the charged offense, we reverse.

Facts

By juvenile petition, the State charged A.D. with one count of felony child abuse.¹ The petition alleged that A.D. “did intentionally inflict physical or mental injury upon [C.F.], a child, or did an intentional act or actively encouraged another to commit an act that results or could reasonably be expected to result in physical or mental injury to [C.F.], a child.”

Following the close of evidence, A.D. moved for a judgment of acquittal. The trial court granted the motion but, over A.D.’s objection, found her guilty of what it ruled was the lesser-included offense of contributing to the dependency of a minor.²

Analysis

A.D. contends that the trial court’s finding of guilt under the circumstances presented constitutes a denial of due process. “A conviction on a charge not contained in the charging document is considered a denial of due process. This principle applies in juvenile delinquency proceedings.” N.H.M. v. State, 974 So. 2d 484, 485-86 (Fla. 2d DCA 2008) (internal citations omitted).

The issue before this court is whether contributing to the delinquency or dependency of a child is a lesser-included offense of child abuse. For one offense to be a necessarily lesser-included offense of another, its statutory elements must be subsumed by the charged offense. See Carle v. State, 983 So. 2d 693, 695 (Fla. 1st DCA 2008). Consequently, we must look to the statutory elements of both offenses.

To commit the offense of contributing to the delinquency or dependency of a child, one must commit an act “which causes, tends to cause, encourages, or contributes to a child becoming a delinquent or dependent child or a child in need of services.” § 827.04, Fla. Stat. (2006). However, the statute for felony child abuse does not require one to contribute to a child becoming delinquent, dependent, or in need of services. See § 827.03(1). Therefore, the former is not a necessarily lesser-included offense of the latter. See also Fla. Std. Jury Instr. (Crim.) 16.3 (giving the standard jury instruction for child abuse, but not listing contributing to the delinquency or dependency of a child as a lesser-included offense).

We must also determine whether contributing to the delinquency or dependency of a child might possibly be a permissive lesser-included offense. “[W]hen an offense is not a necessarily lesser-included offense of the charged offense—that is, the offense is a `category 2′ or permissive lesser-included offense—the trial court cannot convict the defendant of the lesser crime unless the allegations of the charging document include the elements of that crime.” N.H.M., 974 So. 2d at 486. The charging petition in this case makes no mention of the major element of contributing to the delinquency of a minor to support a finding of guilt for that offense.

Conclusion

Because contributing to the delinquency or dependency of a minor is not a category one or category two lesser-included offense of felony child abuse, as charged, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

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

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Notes:

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RANDY EUGENE TATMAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-1225.

District Court of Appeal of Florida, Second District.

Opinion filed July 24, 2009.

Appeal from the Circuit Court for Hillsborough County, Anthony K. Black, Judge.

James Marion Moorman, Public Defender, and James T. Miller, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Randy Eugene Tatman appeals the postconviction court’s denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In his postconviction motion, Mr. Tatman asserted six grounds for relief. The postconviction court summarily denied some of the grounds raised and denied others after an evidentiary hearing. We affirm without discussion the postconviction court’s denial of all grounds asserted in Mr. Tatman’s motion except for ground 1(b). We also affirm as to this claim, but we write to explain why the circuit court retained jurisdiction over Mr. Tatman and could revoke his community control after his term of community control had expired.

I. FACTS AND PROCEDURAL HISTORY

Mr. Tatman pleaded guilty to two counts of sexual battery on a person older than twelve years of age but less than eighteen years of age by a person in a position of familial authority. The crimes were committed between December 20, 1998, and March 1, 1999, and on March 11, 1999. On July 20, 2000, the circuit court sentenced Mr. Tatman to two concurrent terms of two years’ community control followed by eight years’ probation.

On May 17, 2002, Michael Cotignola, Mr. Tatman’s probation officer, arrested Mr. Tatman for violating the terms of his community control. On May 20, 2002, Officer Cotignola filed an affidavit of violation of community control. The circuit court docket reflects that Mr. Tatman was brought before the court on June 5, 2002. However, no warrant was signed or issued before Mr. Tatman’s term of community control expired. During a September 4, 2002, hearing, Mr. Tatman admitted that he had violated the conditions of his community control. The circuit court revoked Mr. Tatman’s community control on January 30, 2003, and sentenced him to two concurrent terms of twenty-five years’ imprisonment. This court affirmed the revocation and resulting sentences without opinion. Tatman v. State, 888 So. 2d 36 (Fla. 2d DCA 2004) (table decision).

In ground 1(b), Mr. Tatman alleged that the circuit court lacked jurisdiction to revoke his community control because an arrest warrant was never issued.¹ In its written order, the postconviction court found that “[b]ecause no warrant was signed as a result of the affidavit, the revocation process was not legally commenced before the period of community control expired.” Nevertheless, the postconviction court concluded that the circuit court had jurisdiction to revoke Mr. Tatman’s probation because (1) Mr. Tatman was sentenced to a probationary term that was consecutive to his term of community control and (2) the affidavit of violation of community control alleged several violations of a condition of community control that was also a condition of probation. Based on this reasoning, the postconviction court denied Mr. Tatman’s claim after an evidentiary hearing. Mr. Tatman appeals this order.

II. DISCUSSION

A circuit court lacks jurisdiction to revoke community control after the term of community control expires unless the revocation process is set in motion during the term of community control. State v. Boyd, 717 So. 2d 524, 526 (Fla. 1998) (citing Carroll v. Cochran, 140 So. 2d 300, 301 (Fla. 1962)); Ermatinger v. State, 866 So. 2d 698, 699 (Fla. 2d DCA 2003); Morgan v. State, 757 So. 2d 618, 619-20 (Fla. 2d DCA 2000). The supreme court has explained that “when the affidavit is filed charging violation of the probation, the warrant is issued and the violator taken in custody within the period of probation, every ingredient of jurisdiction is preserved.” State ex rel. Lee v. Coker, 80 So. 2d 462, 463 (Fla. 1955). Thus the revocation process is generally set in motion upon “the issuance of an arrest warrant based upon an affidavit alleging a violation of probation.” Jones v. State, 964 So. 2d 167, 170 (Fla. 5th DCA 2007); see Morgan, 757 So. 2d at 619.

For the reasons outlined below, we conclude that the issuance of an arrest warrant was not required in this case. “The historic purpose of an arrest warrant in the criminal law context was to interpose between the government and the citizen a neutral official charged with protecting basic rights.” Hyser v. Reed, 318 F.2d 225, 243 (D.C. Cir. 1963) (en banc); see also Maulden v. State, 617 So. 2d 298, 300 (Fla. 1993) (explaining that the purpose of an arrest warrant is “`to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen’” (quoting Payton v. New York, 445 U.S. 573, 602 (1980))); Van Daley v. State, 725 S.W.2d 574, 578 (Ark. Ct. App. 1987) (“The only purpose of an arrest warrant is to have an accused arrested and brought before the justice or other officer issuing the warrant so that he may be dealt with according to law.”).

Under the facts of this case, the purpose underlying the warrant requirement was satisfied and the issuance of an arrest warrant would have been redundant.See Jones, 964 So. 2d at 171 (Orfinger, J., concurring). Section 948.06(1), Florida Statutes (1997), states in pertinent part:

Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or community control in a material respect, any. . . probation supervisor may arrest . . . such probationer or offender without warrant wherever found and forthwith return him or her to the court granting such probation or community control.

This language expressly authorized Officer Cotignola to arrest Mr. Tatman without a warrant. See Grubbs v. State, 373 So. 2d 905, 908 (Fla. 1979) (interpreting § 948.06, Fla. Stat. (1977)). Furthermore, Mr. Tatman was brought before the court after his warrantless arrest but before his term of community control had expired. An arrest warrant would not have served any purpose because Mr. Tatman was lawfully arrested and brought before the court. Thus the issuance of an arrest warrant here was not necessary to set the revocation process in motion.

The Fifth District’s decision in Jones does not compel a different result. In Jones, the Fifth District interpreted the 2003 version of section 948.06(1). Mr. Jones was arrested for a new law violation before his probationary period expired. 964 So. 2d at 168-69. The arrest affidavit indicated that the new law violation constituted a violation of Mr. Jones’ conditions of probation. Id. at 169. No proper affidavit of violation of probation was filed and no arrest warrant was issued before Mr. Jones’ probationary period expired. Id. at 170. On appeal, the State cited Grubbs as support for its argument that the issuance of an arrest warrant was unnecessary because Mr. Jones had been arrested before the probationary period expired and the arresting officer knew about his probationary status. Id. The Fifth District rejected this argument because, unlike the 1977 version of section 948.06 interpreted by the Grubbs court, the 2003 version of that statute expressly required the filing of an affidavit of violation of probation and the issuance of an arrest warrant before the probationary period would be tolled. Id. at 169-70. Because no affidavit of violation of probation was filed or arrest warrant was issued before the probationary term expired, the Fifth District reversed the revocation of Mr. Jones’ probation. Id.at 171.

Jones is distinguishable from this case for two reasons. First, an affidavit of violation of community control was filed before Mr. Tatman’s term of community control expired. Second, like in Grubbs, the version of section 948.06(1) applicable to this case does not include a tolling provision that requires the filing of an affidavit of violation of probation or the issuance of an arrest warrant. Therefore, the issuance of an arrest warrant was unnecessary because Mr. Tatman had been legally arrested and brought before the court prior to the expiration of his term of community control.

III. CONCLUSION

An affidavit of violation of community control was filed charging Mr. Tatman with violations of the terms of his community control. An arrest warrant would have been superfluous because Mr. Tatman was taken into custody and brought before the court within the period of community control. Thus the revocation process was legally commenced before the period of community control expired, and the circuit court had jurisdiction to revoke Mr. Tatman’s community control. Accordingly, the postconviction court properly denied ground 1(b) of the motion. Thus we affirm the postconviction court’s order in all respects.

Affirmed.

SILBERMAN and VILLANTI, JJ., Concur.

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

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Notes:

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EDWIN HERNANDEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-1094.

District Court of Appeal of Florida, Fifth District.

Opinion filed July 24, 2009.

Appeal from the Circuit Court for Orange County, Richard F. Conrad, Judge.

Michael H. LaFay, of NeJame, LaFay, Jancha, Ahmed, Barker & Joshi, Orlando, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

After entering a no contest plea, Hernandez was convicted of trafficking in cocaine. He reserved the right to appeal the denial of his motion to dismiss in which he alleged that he had been entrapped as a matter of law. Because the trial court applied the wrong test in evaluating Hernandez’s entrapment defense, we reverse.

Hernandez was the only witness at the hearing. He testified that he was addicted to cocaine and had been for the previous four to five years. He spent $80 to $120 every other day to purchase cocaine. Hernandez also used ecstasy, marijuana and other illegal drugs. Hernandez worked for a landscape company. On cross-examination, he admitted that his wages were insufficient to pay for both his daily living expenses and his illegal drugs and that to make up the difference, he sold marijuana. Hernandez testified that he made approximately $100/week from his marijuana sales. He denied that he had ever previously sold cocaine.

During the 2007 summer, Hernandez was contacted by a confidential informant who requested Hernandez’s assistance in the purchase of either heroin or a large amount of cocaine. According to Hernandez, he told the informant “at least four or five times” that he did not want to be involved because it was “too risky.” However, when the informant promised him a portion of the product, Hernandez agreed to locate a seller. Hernandez claimed he only agreed to participate in the drug transaction because of his addiction. Hernandez further testified the informant was aware of his “problem” and had previously sold him cocaine.

Hernandez subsequently located a seller and, on behalf of the informant, negotiated the purchase of one kilo of cocaine. When the seller, the informant, and Hernandez met to complete the transaction, law enforcement officers arrested the seller and Hernandez. The arrest took place on September 13, 2007.

Hernandez’s testimony was significantly challenged on cross-examination. He was initially not forthcoming on the fact that he was a marijuana dealer. He also gave conflicting testimony as to his relationship with the informant, testifying on one occasion that he had known the informant for four to five years, on another occasion that he hadn’t had contact with the informant for four to five years, and finally testifying that he had known the informant for five years but had lost contact with him for two years. Hernandez also initially down-played his role in the negotiations. Finally, Hernandez could not recall whether he had told the informant that he had “need[ed] the money.” (emphasis added).

At the conclusion of Hernandez’s testimony, defense counsel argued that the trial court should apply the “objective” entrapment test and determine that Hernandez’s due process rights had been violated. Specifically, defense counsel contended that it was improper for the informant to entice Hernandez, an alleged known cocaine addict, into an unlawful transaction by promise of payment in the form of drugs.

The prosecutor responded by incorrectly arguing that the trial court should apply the “subjective” test for entrapment and deny the motion because, inter alia, Hernandez had failed to establish that he was not “predisposed” to commit the charged offense. The prosecutor also observed that the trial court had not yet determined whether the State was required to disclose the confidential informant’s identity, and further if the court believed that Hernandez had put on sufficient evidence to support a dismissal of the charge, the State would request a continuance to enable it to present the informant’s testimony. It was also the State’s position that the notice of hearing had not afforded the State sufficient time to procure the informant’s presence.

The trial court did not address the State’s motion for continuance prior to its denial of Hernandez’s motion. In denying the motion, the trial judge stated: I’m going to find that the testimony suggests a propensity to commit a sale and delivery of cocaine and therefore no entrapment has occurred.

While the trial court may have correctly determined that Hernandez was not entitled to relief under Florida’s entrapment statute,¹ it failed to address the actual issued raised by Hernandez’s motion to dismiss — whether the government’s alleged misconduct constituted a violation of Hernandez’s due process rights.

In 1985, the Florida Supreme Court adopted an “objective” entrapment test to determine if a defendant had been entrapped as a matter of law. Under that test, entrapment did not occur as a matter of law where police activity (1) had as its end the interruption of a specific ongoing criminal activity; and (2) utilized means reasonably tailored to apprehend those involved in the ongoing activity. Cruz v. State, 465 So. 2d 516, 522 (Fla.), cert. denied, 473 U.S. 905 (1985). However, in 1987, the Florida Legislature enacted section 777.201 which required courts to apply the “subjective” test for entrapment. The subjective test focuses on a defendant’s predisposition to commit the crime while the objective test focuses on the government’s conduct. Munoz v. State, 629 So. 2d 90, 94-95 (Fla. 1993). In Munoz, the Florida Supreme Court determined that while the Legislature had the authority to adopt the subjective entrapment test, it could not adopt a statute that overruled a judicially established legal principle enforcing or protecting a federal or Florida constitutional right. Id. at 98. The court found that in the absence of egregious law enforcement conduct, the subjective test as set forth in section 777.201 was the test to be applied on the issue of entrapment. However, if law enforcement engaged in egregious conduct, an entrapment defense was to be evaluated under the due process provision set forth in Article I, section 9 of the Florida Constitution. Id. at 99.

In the present case, Hernandez did not seek relief under section 777.201. Rather, based on his claim that the government had engaged in egregious conduct, Hernandez was seeking relief under Florida’s due process clause. In support of this argument, Hernandez cited to language from the pre-Munoz case of Pezzella v. State, 513 So. 2d 1328, 1330 (Fla. 3d DCA 1987) where, in applying the now-abrogated Cruz test, our sister court stated: “[e]nticing a drug addict to participate in an illicit drug sale by promising him drugs for his personal use is reprehensible conduct which should not be tolerated.” Hernandez suggests that this court should determine, as a matter of law and based solely on his testimony, that the government’s conduct violated due process. We decline to do so.

First, while only Hernandez testified at the hearing, his testimony was impeached and, at times, internally inconsistent. As a result, this court is not bound to accept his testimony. Brannen v. State, 114 So. 429 (Fla. 1927). On remand, it will be for the trial court to determine Hernandez’s credibility.

Second, we are unwilling to adopt a rule finding that it is a per se due process violation for a government informant to offer illegal drugs to a known drug addict as an inducement to enter into an illegal activity. See, e.g., Campbell v. State, 935 So. 2d 614, 619 (Fla. 3d DCA 2006) (no due process violation where defendant claimed he was acting under informant’s influence because informant had given him drugs for use at hotel away from defendant’s disapproving mother). A court must evaluate all relevant circumstances and then determine whether the government conduct “so offends decency or a sense of justice that judicial power may not be exercised to obtain a conviction.” State v. Blanco, 896 So. 2d 900, 901 (Fla. 4th DCA 2005); see also Campbell. As observed State v. Williams, 623 So. 2d 462, 465 (Fla. 1993), defining the limits of due process is difficult because due process “is not a technical conception within a fixed content unrelated to time, place and circumstances.”

On remand, the trial court is to apply the objective test set forth in Munoz and determine whether there was a violation of Hernandez’s due process rights. We decline to determine whether the trial court should afford the State the opportunity to present the testimony of the confidential informant because the trial court did not rule on the State’s motion for continuance.

REVERSED and REMANDED.

SAWAYA and PALMER, JJ., concur.

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