Florida Criminal Law Opinions

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

Case No. 2D07-5808.

District Court of Appeal of Florida, Second District.

Opinion filed July 24, 2009.

Appeal from the Circuit Court for Polk County, J. Dale Durrance, Judge.

Jackson S. Flyte, Regional Counsel, Second District, and Christine A. Trakas, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Melinda Ramirez appeals the denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which she alleged eight claims of ineffective assistance of counsel. The postconviction court summarily denied six of Ramirez’s claims and denied the remaining two after an evidentiary hearing. While we reverse the summary denial of claim one, we affirm the denial of the remaining seven claims without comment.

Ramirez was convicted of trafficking in methamphetamine and sentenced to twenty years’ prison with a fifteen-year minimum mandatory. Her charges stemmed from a traffic stop that occurred while she was driving away from Lakeland Square Mall. The investigating officer who testified at trial indicated that he had received a tip from a confidential informant (CI) that Ramirez would be at the mall in a white car and would be in possession of a one-half-pound bag of methamphetamine. The officer proceeded to the mall and located a white car in the parking lot. He waited in the mall parking lot until he observed a Hispanic female exit the mall and enter the white car. The officer radioed additional officers, who stopped Ramirez on a side street after she had left the mall parking lot. The officers searched the car, and a one-half-pound bag of methamphetamine was found under the driver’s seat.

In her rule 3.850 motion, Ramirez alleged that her trial counsel was ineffective for failing to seek to suppress the drugs and contraband seized, as well as her resulting confession, because the evidence was the result of an illegal stop and a warrantless search. She further claimed that had her counsel sought the suppression, the evidence would have been excluded and she would not have been convicted.

In summarily denying this claim, the postconviction court concluded that Ramirez’s trial counsel was not ineffective, reasoning that even if counsel had filed the motion to suppress, the trial court would have denied it because the officers had probable cause to stop Ramirez and perform the search of the car. The postconviction court based this conclusion on its finding that the stop was made in reliance on an anonymous tip that was corroborated by independent police observation. The postconviction court attached portions of the transcripts of the investigating officer’s deposition and trial testimony to demonstrate that the record conclusively refuted Ramirez’s claim. The court also noted that an independent basis for the stop existed because the officers performed a “traffic stop” on Ramirez.

Under Strickland v. Washington, 466 U.S. 668 (1984), to establish ineffectiveness of counsel, a defendant must establish (1) that his or her attorney acted unreasonably according to prevailing professional norms and (2) that the defendant was prejudiced by his or her attorney’s deficient performance. “[O]n an ineffectiveness claim. . . [t]he appellate court must defer to the trial court’s findings on factual issues but must review the court’s ultimate conclusions on the deficiency and prejudice prongs de novo.” Bruno v. State, 807 So. 2d 55, 61-62 (Fla. 2001). Furthermore, if the postconviction court denies a claim without an evidentiary hearing, it must attach to its order portions of the record that conclusively refute the claim. Fla. R. Crim. P. 3.850(d).

Here, the postconviction court’s attachments do not conclusively refute Ramirez’s claim that counsel was ineffective for failing to file a motion to suppress. As such, the postconviction court erred in summarily denying this claim. See id.

The investigating officer’s testimony was that the CI had provided information to the police on two prior occasions but that no arrests had been made based on the information provided. In the instant case, the CI had advised that he had previously purchased trafficking amounts of methamphetamine from Ramirez. Although the CI had previously attempted to set up a controlled buy with Ramirez, he had been unsuccessful. The officer testified that on the day of the arrest, the CI called and advised that Ramirez had possession of a quantity of methamphetamine that she was going to sell and that she was at Lakeland Square Mall driving a white car. The officer testified that he went to the mall parking lot and located a white car. He further testified: “A short time later I observed a Hispanic female approaching the vehicle. The Hispanic female matched the description of Melinda Ramirez.” He then called on other officers to initiate a “traffic stop.” Soon after the other officers stopped Ramirez, the investigating officer arrived and immediately searched the vehicle, finding the drugs. The officer testified that the vehicle was a rental car and that he did not know in whose name the car had been rented.

The record before us indicates that the police may have had probable cause to stop the vehicle either based on a traffic stop or the CI’s tip. However, the record does not conclusively show that the stop was a legal traffic stop. Although the attached transcripts do indicate that the officers performed a traffic stop, the record does not identify the basis for the stop. This might suggest that Ramirez committed a traffic violation, but that is not clearly stated. The portion of the record regarding the traffic stop that the postconviction court attached to its order does not conclusively rebut Ramirez’s claim that the stop was illegal. Further, even if a traffic stop was properly executed, there is no indication that the stop gave the officers a basis to conduct a search. Tinson v. State, 650 So. 2d 189, 190 (Fla. 2d DCA 1995)(“[F]ounded suspicion to stop a vehicle does not carry with it authority to search the vehicle or its occupants.”).

Because the record does not conclusively establish that the stop was proper for a traffic violation, if the postconviction court’s summary denial of the claim is to be affirmed, the record must demonstrate that the CI’s tip, in and of itself, was sufficient to justify the stop and search. A CI’s tip, along with the corroborating circumstances surrounding it, can provide sufficient probable cause for the police to effectuate a stop and search of a vehicle or person. See State v. Butler, 655 So. 2d 1123, 1131 (Fla. 1995); State v. Walker, 898 So. 2d 198, 200 (Fla. 2d DCA 2005). Had Ramirez’s trial counsel challenged the probable cause of the officers to initiate the stop or to conduct the warrantless search, the trial court would have reviewed the motion to suppress to determine whether under “the totality of the circumstances,” which includes the basis of the CI’s veracity and knowledge, the information provided by the CI gave rise to the necessary probable cause. SeeWalker, 898 So. 2d at 200; Mitchell v. State, 787 So. 2d 224, 226 (Fla. 2d DCA 2001).

Accordingly, to summarily deny this claim, the postconviction court would have been required to find that specific facts in the record establish that the CI’s tip provided a sufficient basis for the stop and subsequent search. See Perez v. State, 851 So. 2d 849, 850-51 (Fla. 2d DCA 2003) (noting that while officers may have probable cause to stop and search a vehicle based on information provided by a CI, the postconviction court would be required to substantiate the summary denial with specific facts about the CI and record attachments supporting the determination). Therefore, the record must contain sufficient details to provide a basis for the postconviction court to determine that the trial court would necessarily have denied the motion to suppress.

There is nothing in the instant record to suggest that the trial court would have denied the motion to suppress based on the reliability of this CI’s past information.See Mitchell, 787 So. 2d at 227. In fact, the only information provided by the record would tend to show that although the CI had attempted to set up a buy the previous week, he had been unsuccessful and that information supplied by this CI in other cases had not led to any arrests. Similarly, the record fails to show anything more than general information that could be used to establish “veracity by showing that the information leading to the arrest in the current case was both sufficiently detailed and verifiable.” Id. at 227-28 (“[T]he C.I.’s information lacked sufficient detail. . . . [where] [t]he only verifiable information was . . . readily available because the [defendant was] in an open public place. . . . Without more evidence suggestive of criminal activity, the very generalized description in this case could apply to many innocent persons.”). Based on the record before us, the only facts that the officer could have relied on to verify the CI’s tip prior to the stop of Ramirez were that a Hispanic woman would exit the mall and that she would then get into a white car.

Although the officer testified during deposition that Ramirez fit the description of the person referred to by the CI, the record does not provide any details as to what distinguished Ramirez from any other Hispanic female. The fact that the CI said that the person would be driving a white car at Lakeland Square Mall is similarly vague considering the size of the mall parking lot and the number of white cars that might be present within the lot at any given time. Additionally, since the white car was a rental, it does not appear that prior to the stop, the officer was able to verify through vehicle information that the woman was Ramirez.

In other words, the record does not include many of the details that would have to be considered by the postconviction court in order for it to determine whether the totality of the circumstances shows that the trial court would have denied a motion to suppress had counsel filed it. Based on the lack of details included in this record, the postconviction court erred in finding that the record conclusively refutes Ramirez’s claim. We recognize that such details might exist in portions of the record not provided to this court. Furthermore, testimony at an evidentiary hearing on the claim could provide sufficient details to show that, based on a totality of the circumstances, a motion to suppress would have been denied and show that Ramirez’s claim of ineffectiveness is thereby conclusively refuted.

Accordingly, we reverse the summary denial of claim one of Ramirez’s rule 3.850 motion and remand for the postconviction court to either provide additional record support for the summary conclusion that counsel was not ineffective for failing to file a motion to suppress or hold an evidentiary hearing on this claim. SeePerez, 851 So. 2d at 851.

Affirmed in part, reversed in part, and remanded.

WALLACE and CRENSHAW, JJ., Concur.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

WILLIAM B. CRUMBIE, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-4747.

District Court of Appeal of Florida, First District.

Opinion filed July 24, 2009.

An appeal from the Circuit Court for Leon County, Kathleen Dekker, Judge.

Michael Ufferman of the Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant in this direct criminal appeal challenges his conviction and sentence for aggravated battery on a pregnant victim. He raises several arguments, only one of which merits discussion. He contends that the trial court abused its discretion by allowing the victim to testify on redirect examination by the prosecution that she was afraid of the appellant because he told her “he had murdered someone and he got off on a murder trial.” Concluding that the trial court acted within its broad discretion in allowing this testimony, we affirm the appellant’s conviction and sentence.

Prior to trial, the prosecutor informed the trial court that the victim stated to him that she was afraid of the appellant because the appellant told her that he had killed a person and gotten away with it. The prosecutor properly informed the victim that she could not say this during the trial, but the prosecutor argued to the trial court that if the appellant pushed the victim during cross-examination as to why she was afraid of the appellant, the testimony should be allowed. The trial court indicated that the testimony might be allowed with a limiting instruction.

During the state’s direct examination, the victim testified that the appellant punched her in her stomach several times and hit her on the head with a pot of warm grease. But when a neighbor called the police, the victim refused to give the police her correct name or assist in locating the appellant. The victim testified that she did not initially cooperate with the police because she did not want to be called a snitch, because there was an outstanding warrant for her arrest, and because she was afraid of the appellant. On cross-examination, the following exchange occurred between defense counsel and the witness: Q. In fact, that’s why you also gave a false name to law enforcement?

A. Right.

Q. It actually had nothing to do with the fact that you were scared of Mr. Crumbie, correct?

A. No, it had something to do with the fact that I was scared of Mr. Crumbie.

Q. So instead of telling the police your real name so they could protect you or offer you some sort of assistance, you gave them a false name? And you want us to still believe that you were scared of Mr. Crumbie at that point?

A. I gave them a false name because I had a warrant but I still got protection from the police. They still came out. They still did a report. They still did what they were supposed to do to take care of that.

Q. Mr. Crumbie wasn’t arrested that night.

A. He wasn’t arrested because he left the house.

Q. Now, didn’t he also move back in with you after this occurred?

A. Right.

Q. And you still want us to believe you were scared of him?

A. I was afraid of him but I also loved him at the same time.

. . . .

Q. Now, the night that this happened, you said you went back inside your house?

A. Right.

Q. But Mr. Crumbie had left?

A. He hadn’t left yet.

Q. He hadn’t left?

A. No.

Q. So, again, you want us to believe that you were scared of Mr. Crumbie but you went back into a house where he was located?

A. That’s my house and I made him leave my house. You’re right, I went back inside my house. Over defense counsel’s objection that the testimony was unfairly prejudicial, the trial court allowed the victim to testify on redirect about the appellant’s alleged statement to her, but the court instructed the jury that the testimony was admissible for the limited purpose of establishing its effect on the victim.

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. See Frances v. State, 970 So. 2d 806 (Fla. 2007). A trial court abuses its discretion only when no reasonable person would take the view adopted by the trial court. Id. at 813. Relevant evidence which would otherwise be considered inadmissible may be permitted when the defendant has “opened the door” to that evidence. See, e.g., Overton v. State, 801 So. 2d 877 (Fla. 2001). “As an evidentiary principle, the concept of `opening the door’ allows the admission of otherwise inadmissible testimony to `qualify, explain, or limit’ testimony or evidence previously admitted.” Ramirez v. State, 739 So. 2d 568, 579 (Fla. 1999) (quoting Tompkins v. State, 502 So. 2d 415, 419 (Fla. 1986)).

In this case, the appellant opened the door to the testimony concerning his alleged previous statement to the victim by repeatedly challenging the victim’s assertion made during direct examination that she initially refused to cooperate with the investigation in part because she was afraid of the appellant. The appellant proceeded with these challenges despite having been warned by the trial court that such a tactic might result in the admission of the victim’s account of the appellant’s previous statement. Had the trial court precluded this testimony, the jury would have been required to assess the victim’s credibility with an incomplete account of relevant evidence relating to her credibility. In these circumstances, the trial court did not abuse its discretion in allowing the state to present the challenged testimony on redirect examination. See, e.g., Love v. State, 971 So. 2d 280, 286 (Fla. 4th DCA 2008) (recognizing that the opening the door concept is based on considerations of fairness and the truth seeking function of a trial and may be employed when redirect examination serves to reveal the whole story of a transaction only partly explained in cross examination); see also Williamson v. State, 681 So. 2d 688 (Fla. 1996) (holding that section 90.403, Florida Statutes, did not preclude testimony that a critical state witness knew that the defendant had previously murdered a child, when the credibility of the witness was at issue due to his failure intially to fully cooperate with law enforcement officers investigating the crime for which the defendant was on trial).

The appellant’s conviction and sentence are affirmed.

HAWKES, C.J., and ALLEN, J., CONCUR; CLARK, J., DISSENTS WITH OPINION.

CLARK, J., dissent.

I disagree with the majority and would reverse the conviction.

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. § 90.403, Fla. Stat. Evidence of prior crimes is inadmissible where its sole relevancy is to attack the character of the defendant or to show the defendant’s propensity to commit a crime. Vazquez v. State, 419 So. 2d 1088 (Fla. 1982).

The decision of whether probative value is outweighed by prejudice is a judgment call for the trial court and will be upheld absent an abuse of discretion. Because the prejudice substantially outweighed any probative value of the victim’s statement, the trial judge abused its discretion in failing to exclude the testimony.

The defendant was charged with aggravated battery. On direct examination the victim testified that she had been untruthful with law enforcement about her identity when they responded to the emergency call because she was afraid of the defendant. On redirect examination, over the defense objection, ostensibly in an effort to rehabilitate the credibility of the witness, the State elicited testimony from the victim that she had been afraid of the defendant because the defendant had told her that he had murdered someone before and that he “got off on a murder trial.” The victim’s testimony implied that the defendant had previously been charged with murder and had been acquitted. The trial judge gave a cautionary instruction to the jury that they were not to “speculate as to the truth or falsity of the matters asserted in the statement.”

Fear is not an element of aggravated battery. See § 784.045, Fla. Stat. Thus, evidence of the victim’s fear was not relevant to the crime charged. Whether or not the victim was afraid of the defendant did not tend to prove or disprove a fact material to the case. Notably, there was no suggestion that the defendant told her of this murder charge and acquittal during or near the commission of the crime for which he was convicted. The testimony about the victim’s fear was not probative of a relevant fact, but was elicited in an effort to rehabilitate the victim’s credibility on a collateral matter, i.e., whether she had been untruthful with law enforcement. The admission of evidence of a defendant’s prior charge of murder is highly inflammatory. When evidence of a collateral crime is admitted improperly, it is presumptively harmful. Fiddlemon v. State, 858 So. 2d 1102 (Fla. 4th DCA 2003). McLean v. State, 934 So. 2d 1248, 1261 (Fla. 2006), the Florida Supreme Court held that “[c]ollateral crime evidence violates a defendant’s right to due process if it is so prejudicial that it denies the defendant a fair trial.” The supreme court emphasized the significance of a trial court weighing the probative value of evidence against the danger of unfair prejudice and explained:

[T]he application of section 90.403 should always render evidence inadmissible when it has such a prejudicial effect. In other words, if the potential prejudice is so great that admission of the collateral crime evidence will violate the defendant’s right to a fair trial, then the probative value of the evidence must be “substantially outweighed by the danger of unfair prejudice.”

Id.

In this case, and particularly because the defendant was on trial for a crime of violence, the curative instruction was not likely to be effective in persuading the jury to disregard the implication that the defendant was a violent person who had murdered before without legal consequence. The court’s caution that the jury should not speculate on the truth of the assertion could not ameliorate the statement’s prejudicial effect. In view of the current charges of violence, the statement gave the jury reason to believe that the defendant was a violent person in the past and thus had a propensity to be violent. The improper implication of the defendant’s violent past could not be cured by a caution to the jury about refraining to speculate on the truth of the assertion. See Brooks v. State, 868 So. 2d 643 (Fla. 2d DCA 2004).

The defendant’s right to a fair trial was compromised by the victim’s statement that the defendant had committed murder before and “got off on a murder trial.” The prejudicial effect of the statement substantially outweighed the probative value of the assertion. The curative instruction could not “unring the bell” about the defendant’s past criminal history. Henderson v. State, 789 So. 2d 1016 (Fla. 2d DCA 2000).

The trial court erred in allowing the victim’s testimony that the defendant had previously been charged with and acquitted of murder. The statement was highly prejudicial. Under these circumstances, the state has not met its burden of showing beyond a reasonable doubt that the victim’s statement concerning the defendant’s previous charge and acquittal for murder did not contribute to the jury’s verdict of guilt. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)

I would reverse.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

RAMON M. SANCHEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-4706.

District Court of Appeal of Florida, First District.

Opinion filed July 24, 2009.

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

Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and C. Bowen Robinson, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

We affirm the defendant’s convictions, but reverse for resentencing. The trial court erred in sentencing the defendant as a prison releasee reoffender to consecutive terms of imprisonment. Although there were two victims involved, the defendant’s crimes arose from a single criminal episode as they occurred without interruption in time or location. See Staten v. State, 600 So. 2d 1269, 1270 (Fla. 2d DCA 1992) (holding that even though there were two victims, a single criminal episode occurred because there was not an interruption in time and place); Gloster v. State, 568 So. 2d 1318, 1318 (Fla. 2d DCA 1990) (“notwithstanding the fact that different victims were involved, all three offenses occurred without interruption in time and location”). As such, we find that Robinson v. State, 829 So. 2d 984 (Fla. 1st DCA 2002), controls here and requires that the defendant be resentenced.

AFFIRMED in part, REVERSED in part, REMANDED for resentencing.

ALLEN, PADOVANO, and ROBERTS, JJ., CONCUR.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

Domingo Mercado, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-1773.

District Court of Appeal of Florida, Third District.

Opinion filed July 22, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Mary Barzee Flores, Judge. Lower Tribunal Nos. 02-2758, 02-3051, 02-5435, 02-5810, 02-5813, 02-5814, 02-5816, 02-5823.

Domingo Mercado, in proper person.

Bill McCollum, Attorney General, for appellee.

Before GERSTEN, ROTHENBERG, and LAGOA, JJ.

ROTHENBERG, J.

Domingo Mercado (“Mercado”) appeals the trial court’s order denying his motion to correct illegal sentences imposed in the eight cases listed above. The gravamen of Mercado’s complaint is the Prison Releasee Reoffender adjudications and resulting mandatory sentences imposed on each count of burglary of an unoccupied dwelling. Although Mercado correctly notes that the Florida Supreme Court State v. Huggins, 802 So. 2d 276 (Fla. 2001), held that the Prison Releasee Reoffender statute did not apply to burglary of an unoccupied dwelling, his reliance on Huggins is misplaced as the Legislature amended the statute, effective July 1, 2001, to include burglary of an unoccupied dwelling as a qualifying offense under the statute. As Mercado’s crimes were all committed after July 1, 2001, the trial court correctly denied Mercado’s motion.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Angel Roberto Gonzalez, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-1553.

District Court of Appeal of Florida, Third District.

Opinion filed July 22, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Mary Barzee Flores, and Reemberto Diaz, Judges. Lower Tribunal No. 04-8753.

Angel Roberto Gonzalez, in proper person.

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

Before COPE, WELLS, and CORTIÑAS, JJ.

COPE, J.

This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal 3.850. We remand for further proceedings.

Defendant-appellant Gonzalez was convicted of armed burglary and false imprisonment. In point one of his motion, the defendant contends that his trial counsel was ineffective for failing to move for a judgment of acquittal on the ground that the evidence was legally insufficient to support the proposition that the defendant was armed during the burglary. He asserts that the evidence only supported the charge of unarmed burglary.

The victim testified that his vehicle was stopped by an individual impersonating an FBI agent. He identified the defendant from a photo lineup as the perpetrator, although the victim was unable to make identification at trial. The victim stated that the perpetrator took several items of personal property, plus a fanny pack containing a firearm. Because of the taking of the fanny pack containing the firearm, the defendant was convicted of armed burglary, as opposed to unarmed burglary. The defendant alleges that there was no evidence which would support an inference that the defendant knew what was inside the fanny pack. The defendant asserts that such a motion, if made, would have been successful. See Barrett v. State, 983 So. 2d 795, 796 (Fla. 4th DCA 2008).

The State filed a response in the trial court, arguing that the defendant did, in fact, make a motion for judgment of acquittal, which was denied. However, the defendant alleges that this was a boilerplate motion for judgment of acquittal, and that counsel failed to argue the absence of evidence establishing that the defendant knew what was in the fanny pack at the time that he took it. The State’s trial court response cited the transcript pages containing the motion for judgment of acquittal, but the State did not attach it to the trial court response. For present purposes, we must accept the defendant’s characterization that counsel failed to address with specificity the claimed deficiency in proof of the “armed” portion of the armed burglary charge.

The Florida Supreme Court has said that a boilerplate motion for judgment of acquittal is legally insufficient. Woods v. State, 733 So. 2d 980, 984-85 (Fla. 1999) (“Florida Rule of Criminal Procedure 3.380 requires that a motion for judgment of acquittal `fully set forth the grounds on which it is based.’”). It follows that the defendant has made “a facially sufficient claim for postconviction relief,” Boykin v. State, 725 So. 2d 1203, 1203 (Fla. 2d DCA 1999), and we must remand for further proceedings.

In point three, the defendant argues that his trial counsel was ineffective for failing to object that unadmitted evidence was sent to the jury room. The State responded, and the trial court agreed, that this argument was procedurally barred because it was raised in the defendant’s direct appeal to this court.¹ The State’s argument was misplaced under the circumstances of this case.

In the direct appeal, the defense argued that a document entitled “MiamiD-ade Police Department, Doral District, Residential Burglary, Intelligence Bulletin,” was inadvertently admitted into evidence and given to the jury. According to the brief in the defendant’s direct appeal, the Intelligence Bulletin contained inadmissible evidence of other crimes. In response in the direct appeal, the State argued first, that the record was not entirely clear about whether this document did, or did not, go to the jury. The State maintained that testimony from the attorneys and courtroom clerk, or possibly other individuals, would be needed in order to determine what exhibits went to the jury. Second, the State argued that trial counsel had made no objection to any of the trial exhibits, and therefore the issue was not preserved for appellate review. The State made no other arguments on direct appeal on this issue.

In his Rule 3.850 motion the defendant alleges that the objectionable document went to the jury and that his trial counsel was ineffective for failing to object. This is a facially sufficient claim. See Harris v. State, 826 So. 2d 340, 341 (Fla. 2d DCA 2002).

On appeal from a summary denial of a motion for postconviction relief, this court is required to reverse an order denying a facially sufficient claim unless the record shows conclusively that the appellant is not entitled to any relief. Fla. R. App. P. 9.141(b)(2)(D). We, therefore, remand for further consideration of points one and three, or for an evidentiary hearing. If the trial court again summarily denies the motion, it must attach documents conclusively refuting the defendant’s claim.

Reversed and remanded for further proceedings consistent herewith.²

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

Chentee Maurice Key, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-1513.

District Court of Appeal of Florida, Third District.

Opinion filed July 22, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge. Lower Tribunal No. 04-25891.

Chentee Maurice Key, in proper person.

Bill McCollum, Attorney General, for appellee.

Before RAMIREZ, C.J., and COPE and WELLS, JJ.

PER CURIAM.

This is an appeal of an order summarily denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Because the motion was filed within two years after the issuance of the mandate Key v. State, 990 So. 2d 529 (Fla. 3d DCA 2008), it could also be viewed as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

In the motion, defendant-appellant Key contends that the charging document and verdict form do not support a conviction under subsection 794.011(3), Florida Statutes (1995), for armed sexual battery. For counts one, two, and three, the jury checked a box on the verdict form finding the defendant “GUILTY of Sexual Battery while armed with a deadly weapon or in the process used physical force likely to cause serious injury[.]” The jury did not check a box stating that “the deadly weapon used was a firearm[.]”

The defendant argues that on counts one through three he was charged with possessing a firearm or destructive device during the sexual battery. He points out that the charging document did not contain an allegation that he used “actual physical force likely to cause serious personal injury . . . .” § 794.011(3), Fla. Stat. (2005). He maintains that his offense must be reduced to the lesser included offense of sexual battery under subsection 794.011(5), Florida Statutes (2005).

We have taken judicial notice of the defendant’s file in his direct appeal. The identical issue was raised in the defendant’s initial brief and the motion for rehearing. We did not address the issue in the panel opinion, but we denied the motion for rehearing by unpublished order, stating, “The motion for rehearing is denied on the merits on authority of the controlling and indistinguishable case of DuBoise v. State, 520 So. 2d 260, 264-65 (Fla. 1988).” As the issue has already been decided, we affirm the order now before us.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Corey O’Neal, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-883.

District Court of Appeal of Florida, Third District.

Opinion filed July 22, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Antonio Marin, Judge, Lower Tribunal No. 01-19774.

Corey O’Neal, in proper person.

Bill McCollum, Attorney General, for appellee.

Before GERSTEN, ROTHENBERG, and LAGOA, JJ.

ROTHENBERG, J.

The defendant, Corey O’Neal (“O’Neal”), appeals the trial court’s summary denial of his motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.850. We affirm.

In 2003, O’Neal was found guilty of one count of robbery with a firearm and one count of aggravated assault. He was sentenced to sixty years incarceration with a ten-year mandatory sentence as to the armed robbery. This Court affirmed O’Neal’s convictions and sentences on June 16, 2004. O’Neal v. State, 876 So. 2d 569 (Fla. 3d DCA 2004).

On June 13, 2006, O’Neal filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of trial counsel based on counsel’s (1) failure to call two alibi witnesses; (2) decision to permit co-counsel to cross-examine an eyewitness and the lead detective; and (3) failure to object to the introduction of a lineup, where O’Neal’s photograph allegedly contained numbers suggesting a prior arrest. The trial court denied the motion, finding that O’Neal’s claims were insufficient under Strickland v. Washington, 466 U.S. 668, 687 (1984).

After the trial court’s denial of O’Neal’s rule 3.850 motion, O’Neal filed a motion which he labeled as an “addendum” to his initial motion for postconviction relief. The “addendum” motion listed an additional claim of ineffective assistance of trial counsel—counsel’s failure to object to the trial court’s refusal to read a portion of the trial testimony back to the jury after it had begun its deliberations. Because the trial court had denied O’Neal’s initial motion for postconviction relief before O’Neal filed the second motion, which he styled as an “addendum,” the trial court found that the second motion was successive, and denied it on November 22, 2006. This Court affirmed the trial court’s order denying relief. O’Neal v. State, 947 So. 2d 1177 (Fla. 3d DCA 2007).

On December 11, 2008, O’Neal filed the instant motion seeking postconviction relief under rule 3.850, alleging that trial counsel was ineffective because he: (1) misadvised O’Neal regarding the length of sentence he would serve if convicted; (2) failed to exercise a challenge against a biased juror; and (3) pursued a theory that conceded guilt. The trial court concluded that the motion was successive and thus, procedurally barred, and therefore denied relief. This appeal followed.

On appeal, O’Neal disputes the trial court’s treatment of his “addendum” motion in 2006 as a successive motion for postconviction relief, and challenges the trial court’s ruling that the instant motion is a successive motion. We find these arguments to be procedurally barred and without merit. O’Neal appealed the trial court’s November 22, 2006 order, and this Court affirmed. Thus, this Court already has adjudicated O’Neal’s argument regarding the propriety of the November 22, 2006 order. See State v. McBride, 848 So. 2d 287, 290 (Fla. 2003) (explaining that collateral estoppel prevents identical parties from relitigating the same issue(s) that were previously decided). Nonetheless, the instant rule 3.850 motion, which O’Neal filed on December 11, 2008, was properly denied because it was not only successive, but untimely. See Fla. R. Crim. P. 3.850(b).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

JOHN WILLIAMS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-4429.

District Court of Appeal of Florida, Second District.

Opinion filed July 22, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Highlands County, Peter F. Estrada, Judge.

PER CURIAM.

John Williams challenges the postconviction court’s order denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We reverse as to one subclaim but affirm the denial of the remaining claims without comment.

Williams originally pleaded guilty to three third-degree felonies in exchange for five years’ probation. He admitted to violating his probation on May 29, 2007, and in exchange was sentenced to five years in prison. One subclaim contained within claim two of his motion was not specifically addressed by the postconviction court. Williams alleged that when the 131 days he served in jail when originally charged is added to the five-year sentence imposed after revocation, his sentence exceeds the statutory maximum. See § 921.161(1), Fla. Stat. (2006). Williams appears to have been alleging somewhat inartfully that he was not given credit for the time he spent in jail prior to the original disposition on the charges. A jail credit claim is cognizable under rule 3.800(a). State v. Mancino, 714 So. 2d 429, 433 (Fla. 1998). Furthermore, a probation violator sentenced to prison is entitled to credit for time served in jail awaiting the original probationary sentence. Walker v. State, 543 So. 2d 343, 344 (Fla. 1st DCA 1989); Kirkman v. Wainwright, 465 So. 2d 1262, 1263 (Fla. 5th DCA 1985); see also § 921.161(1) (“[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.”). We therefore reverse and remand for the postconviction court to address this subclaim and either correct the sentencing documents to reflect credit for time spent in jail awaiting disposition of the original charges, as well as time in jail awaiting disposition of the probation violation, or attach those portions of the record that conclusively refute the subclaim.

Affirmed in part, reversed in part, and remanded with instructions.

DAVIS, WALLACE, and KHOUZAM, JJ., Concur.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

JOSEPH ALEXIS, Appellant,
v.
STATE OF FLORIDA & FORT PIERCE POLICE DEPARTMENT, Appellees.

No. 4D08-3623.

District Court of Appeal of Florida, Fourth District.

July 22, 2009.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Cynthia L. Cox, Judge, L.T. Case No. 562005CF002180A.

Joseph Alexis, Zephyrhills, pro se.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee State of Florida.

PER CURIAM.

Appellant, Joseph Alexis appeals from an order denying his motion for return of certain property that was confiscated from him at the time of his arrest. The trial court granted his motion except for that portion concerning the return of confiscated currency. The trial court denied the motion as to the currency and ordered the Fort Pierce Police Department to remit to the clerk of the circuit court the sum of $575 representing mandatory court costs (“mandatory costs”) and $500 representing an appellate filing fee and transcript costs for an appeal previously filed by the appellant (“appellate costs”).

At the sentencing hearing, at which time the trial court initially imposed the mandatory costs, the appellant failed to object when the mandatory costs were announced in open court and he filed no motion pursuant to Florida Rule of Criminal Procedure 3.800(b) in that regard. Accordingly, this issue is not preserved for appellate review. Sanders v. State, 710 So. 2d 1052 (Fla. IstDCA 1998).

With respect to the appellate costs, we agree with appellant’s argument because such items are discretionary in nature and as a result, the court should have given the defendant notice and an opportunity to be heard which it did not do. As such, this matter is remanded to the trial court with instructions to enter an order requiring the return of the appellant’s appellate costs totaling $500. Alternatively, the trial court may reimpose the appellate costs if the requirements of documentation, notice and opportunity for the appellant to be heard are met. Gilchrist v. State, 938 So. 2d 654 (Fla. 4th DCA 2006).

Reversed in part and remanded.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Mario Lot, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-1878.

District Court of Appeal of Florida, Third District.

Opinion filed July 22, 2009.

An Appeal from the Circuit Court for Monroe County, Mark Jones, Judge, Lower Tribunal No. 07-535.

Horan, Wallace & Higgins (Key West), and Cara Higgins, for appellant.

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

Before GERSTEN, SUAREZ and ROTHENBERG, JJ.

ROTHENBERG, J.

Mario Lot (“the defendant”) appeals his conviction and sentence for grand theft. We affirm.

The victim, Cole Mayer (“Cole”), is the beneficiary of a substantial trust established by his biological father, who was a part owner of Sloppy Joe’s Bar/Restaurant in Key West, Florida. Cole’s biological father died when Cole was two years old. When Cole was approximately six years old, the defendant and Cole’s mother became romantically involved, and the defendant helped Cole’s mother with household finances and bill-paying. Cole and the defendant enjoyed a father-son relationship.

Upon his eighteenth birthday (late in 2006), Cole sought and obtained the defendant’s advice on obtaining access to the trust. In January 2007, the defendant asked Cole for a $5,000 loan to pay a gambling debt the defendant had incurred. Cole wrote the defendant a check, and specifically noted on the memo line, “Loan Dad.” Cole testified that he told the defendant that this was a one-time thing, and that he would never again finance the defendant’s gambling. Although Cole was aware that the defendant was a gambler, he testified that when he loaned the defendant $5,000, he was unaware the defendant had a gambling problem.

Cole subsequently provided the defendant with a number of signed, blank checks, expecting the defendant to use the checks to pay some of Cole’s attorney and home improvement expenses. However, the defendant used the blank checks to repay additional gambling debts, totaling over $100,000. Thereafter, Cole, his mother, and a family friend held an intervention, where they confronted the defendant with his gambling, and offered to assist him with getting help. The defendant admitted to having a gambling problem, vowed to repay Cole in full, and attempted to settle the matter without the authorities getting involved, however, Cole ultimately reported the theft to the police.

The defendant hired Joseph Spataro, who represented the defendant as defense counsel for five months, until Spataro accepted a position with the State Attorney’s Office in Key West. Before trial, the defendant moved to disqualify the entire Monroe County State Attorney’s Office. At the hearing, Spataro testified that after terminating his representation of the defendant and becoming employed by the Monroe County State Attorney’s Office, he was fully screened from the defendant’s prosecution, and he did not discuss the case with any of his colleagues or supervisors. The trial court denied the defendant’s motion to disqualify, and the case proceeded to trial.

During defense counsel’s cross-examination of Cole, the State objected to defense counsel’s attempt to highlight Cole’s gambling habits, contending that the questions were irrelevant to the true issue in the case—whether Cole had consented to the defendant’s use of the blank checks to finance his gambling. Defense counsel responded that he wanted to delve into Cole’s gambling to refute his testimony that he was unaware that the defendant had a gambling problem. The trial court sustained the objection, finding that the testimony sought was irrelevant evidence seeking only to establish bad character.

At the conclusion of the trial, on rebuttal closing argument, the prosecutor explained to the jury that people with addictions involving drugs, alcohol, or gambling, often do “evil things” in furtherance of their addiction—even to those they love—and those acts are not always performed in a sophisticated manner. Defense counsel objected and moved for a mistrial, arguing that the State had impermissibly suggested that the defendant was an alcoholic or a drug addict. The trial court denied the motion, the jury found the defendant guilty of grand theft, and this appeal followed.

The defendant contends that reversal is necessary because: (1) the trial court impermissibly limited the cross-examination of Cole; (2) the trial court erred in denying the defendant’s motion for mistrial based upon the prosecutor’s statements during rebuttal closing argument; and (3) the entire Monroe County State Attorney’s Office should have been disqualified.

The Cross-Examination of Cole

The trial court limited defense counsel’s cross-examination of Cole by sustaining the State’s objection to a line of questioning regarding Cole’s gambling with his friends, where the defendant did not participate. The trial court found that these questions were irrelevant, and tended only to establish Cole’s bad character. On appeal, we review the trial court’s limitation of defense counsel’s cross-examination for an abuse of discretion. Moore v. State, 701 So. 2d 545, 549 (Fla. 1997)(“Limitation of cross-examination is subject to an abuse of discretion standard.”); accord Diaz v. State, 747 So. 2d 1021, 1023 (Fla. 3d DCA 1999).

The defendant argues that the trial court abused its discretion by limiting his cross-examination of Cole and not allowing him to develop his main defense—that Cole was aware of the defendant’s gambling debts, that he willingly loaned the money to the defendant, and that he was aware that the money was going to be used to pay off the defendant’s gambling debts. We do not find that the limitation of defense counsel’s cross-examination was error. The record conclusively establishes that the defendant had a full opportunity to present testimony related to his defense, including testimony that Cole played poker with the defendant, and Cole was aware that the defendant gambled. The trial court’s limitation of defense counsel’s cross-examination of Cole pertained only to Cole’s own gambling habits in the absence of the defendant, which we agree was irrelevant and was properly excluded.

The State’s Rebuttal Closing Argument

During its rebuttal closing argument, the prosecutor made the following comments to the jury: [T]he defense is somehow asking you to speculate that, oh, why would the defendant steal from this young man who he loves so much. Well, it’s an unfortunate thing, but addiction is evil. It’s an evil thing.

. . . .

People who are addicted to drugs steal from their families. People who are addicted and who are alcoholics do some pretty evil things, too. People, they drive drunk, things that you wouldn’t expect them to do in order to get their alcohol. People who need their drugs do lots of things in order to get their drugs. Gambling is just as bad. This defendant had a gambling problem and was in such hot water with his bookies that he had to go and steal money from somebody. Where’s he going to get the money from? Well, the deepest well that he knows that he’s got some power over belongs to his stepson. Where else is he going to get the money? Is it smart? No. . . . It doesn’t mean he didn’t do it.

The trial court denied the defendant’s contemporaneous objection and subsequent motion for a mistrial, finding that the testimony did reflect that the defendant had a gambling problem, which could be fairly characterized as an addiction, and that to suggest that people with addictions are often driven to out-of-character acts is “within the ambit of logic and common sense.”

On appeal, the defendant argues that these comments prejudicially influenced the jury, and the trial court’s denial of his motion for mistrial amounts to reversible error. We disagree, as the defendant has failed to demonstrate any abuse of discretion. Goodrich v. State, 854 So. 2d 663, 664 (Fla. 3d DCA 2003) (“The control of comments made to the jury by counsel is within the discretion of the trial court, and an appellate court will not interfere unless a party demonstrates an abuse of discretion.”).

In this case, the record is replete with references made by both parties to the defendant’s gambling problem. The testimony, admitted without defense objection, revealed that the defendant had been referred to Gambler’s Anonymous, and was otherwise going to seek help, and that Cole, his mother, and a friend held an “intervention” for the defendant regarding his gambling. It was no great stretch of logic for the prosecutor to suggest that, like people addicted to drugs and alcohol, those with gambling addictions often act in inexplicable fashions, and sometimes, to the detriment of those they love. See id. (noting that attorneys have great latitude in presenting closing arguments, provided that they adhere to the evidence presented to the jury, or logical inferences therefrom).

Our conclusion is bolstered by the fact that the State’s comments were made in direct response to the defendant’s closing argument that the defendant’s easily-traceable actions indicate a non-criminal motive or intent. See Stancle v. State, 854 So. 2d 228, 229 (Fla. 4th DCA 2003) (“A prosecutor’s argument should be examined in the context in which it is made.”). Thus, because the State’s rebuttal closing argument was both grounded in the evidence presented to the jury, and was made in direct response to a line of argument commenced by the defendant, we hold that the trial court acted within its discretion by allowing the prosecutor’s argument and denying the defendant’s subsequent motion for a mistrial.

The Defendant’s Motion to Disqualify

Prior to trial, the defendant moved to disqualify the Monroe County State Attorney’s Office, based on the fact that after Joseph Spataro discontinued his representation of the defendant, he became employed by the State. Ms. Vogel, Spataro’s immediate supervisor, was the prosecutor assigned to the instant case.

At the hearing on the defendant’s motion to disqualify the Monroe County State Attorney’s Office, both Spataro and Vogel offered clear and uncontroverted testimony establishing that they never discussed the defendant’s case, no confidential information was exchanged, and Spataro did not see the file or assist in the prosecution of the case in any capacity. In addition, Spataro instructed his assistant at the State Attorney’s Office to screen him from all correspondence involving this case, and to keep it from his view. Finding that the defendant failed to demonstrate actual prejudice, and that Spataro (who was obviously disqualified) had been fully screened from his former client’s prosecution, the trial court denied the motion and allowed the case to proceed. The defendant now argues that this denial amounts to reversible error.

“[I]mputed disqualification of the entire state attorney’s office is unnecessary when the record establishes that the disqualified attorney has neither provided prejudicial information related to the pending criminal charge nor has personally assisted, in any capacity, in the prosecution of the charge.” State v. Fitzpatrick, 464 So. 2d 1185, 1188 (Fla. 1985); see also Mackey v. State, 548 So. 2d 904, 905 (Fla. 1st DCA 1989) (finding that for the purposes of disqualification, a State Attorney’s Office is not comparable to a law firm). In response, the defendant argues that Popejoy v. State, 597 So. 2d 335 (Fla. 3d DCA 1992), is controlling. We disagree, as that case is clearly distinguishable.

In Popejoy, the record established that the defendant’s former counsel communicated with the prosecutor and sat at the prosecution’s table during a hearing concerning the defendant. Id. at 335. Accordingly, this Court held that the disqualification of the entire State Attorney’s Office (in Monroe County) was appropriate. Id. at 336. In the instant case, however, the defendant was unable to offer any evidence suggesting that any inappropriate contact occurred between his former attorney and the prosecutor involved in the case. While Spataro’s “switching of sides” likely left the defendant with a regrettable sting, in the absence of actual prejudice, disqualification of the entire State Attorney’s Office was not required. See State v. Fields, 954 So. 2d 1218, 1220 (Fla. 3d DCA 2007) (holding that in the absence of actual prejudice, the disqualification of an entire State Attorney’s Office constitutes a departure from the essential requirements of law).

Thus, the trial court correctly denied the defendant’s motion to disqualify the entire Monroe County State Attorney’s Office.

Conclusion

The trial court acted within its discretion by limiting defense counsel’s cross-examination of Cole and permitting the prosecutor’s comments during the State’s rebuttal closing argument. We also find that because Spataro was sufficiently screened, and the defendant did not demonstrate any actual prejudice, the trial court correctly denied the defendant’s motion to disqualify the entire Monroe County State Attorney’s Office. Accordingly, we affirm the defendant’s conviction and sentence.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites