Florida Criminal Law Opinions

Edward Joe Young, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-1455.

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. 97-30051.

Edward Joe Young, in proper person.

Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

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

SHEPHERD, J.

Appellant, Edward Joe Young, appeals the denial of a Florida Rule of Criminal Procedure 3.800(a) motion, in which he seeks credit for time served.

On January 13, 2000, Young originally was sentenced on five counts to a prison term of three-and-one-half years, followed by one year of community control and fifteen years of probation, pursuant to a plea to reduced charges of three counts of attempted capital sexual battery, § 794.011(2), Fla. Stat. (2000), and two counts of incest, § 826.04, Fla. Stat. (2000). On July 28, 2006, upon revocation of probation, Young was resentenced to ten years in state prison on all five counts, to run concurrently, with credit for time served from November 16, 2005.

On May 24, 2007, Young filed a motion to correct illegal sentence, alleging he was not given credit for the three-and-one-half years previously served in the Department of Corrections. Two months later, he amended the motion to further allege entitlement to credit for time served on probation.

The State responded to the motion, asserting that pursuant to a negotiated plea, Young waived credit for time served for the three-and-one half years he served in state prison prior to November 16, 2005. On October 29, 2007, the trial court summarily denied the motion. Upon Young’s appeal of the summary denial, we reversed the trial court in an opinion utilizing our standard admonition, “If the trial court again enters an order summarily denying [Young's] post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to relief.” Young v. State, 973 So. 2d 624, 624 (Fla. 3d DCA 2008). Apparently misinterpreting our opinion to suggest that one of its options on remand was to conduct an evidentiary hearing on a Florida Rule of Criminal Procedure 3.800(a) motion, cf. Renaud v. State, 926 So. 2d 1241, 1241 (Fla. 2006) (“A requirement for relief under Florida Rule of Criminal Procedure 3.800(a) is `that the court records demonstrate on their face an entitlement to . . . relief.’ Fla. R. Crim. P. 3.800(a). This rule does not contemplate the necessity of an evidentiary hearing.”), the trial court did so, and, on May 9, 2008, after hearing what it considered to be the more credible evidence from Young’s former counsel—that the agreed credit at the plea colloquy was from November 16, 2005, Young’s last booking date—the trial court again denied Young’s motion. Young now appeals this order.

During the pendency of this appeal, we ordered the transcripts from the plea colloquy and evidentiary hearing to be filed with this Court. The governing document, July 19, 2006 resentencing plea colloquy, conclusively refutes Young’s contention he would receive credit for time served for any period of incarceration prior to November 16, 2005. In fact, the pronouncement made in open court by the trial judge with both Young’s and his counsel’s consent was that Young “[would] receive credit time served since November 16th of 2005, the date he was taken into custody for this [violation of probation]“. It is apodictic that a defendant in a probation revocation hearing may waive credit for time served as part of a plea agreement. See Johnson v. State, 974 So. 2d 1152, 1154 (Fla. 3d DCA 2008) (“A provision in a plea agreement that the defendant is to be awarded credit for time served from a specific date effectively waives any claim to credit for time served before that date.”); Joyner v. State, 988 So. 2d 670, 672 (Fla. 3d DCA 2008). Accordingly, we affirm the trial court order insofar as it denies the motion for credit for time served in prison. However, this does not end our labor in this case.

In its Answer Brief, the State commendably reminded us that the trial court did not rule upon Young’s amendment to his Rule 3.800(a) motion seeking credit for time previously served on community control and probation. On this point, we reverse and remand for further proceedings.

Under the statutory sentencing laws in effect at the time Young committed his crimes:

[T]he court may not impose a subsequent term of probation or community control, which, when combined with any amount of time served on preceding terms of probation or community control for offenses before the court for sentencing, would exceed the maximum penalty allowable as proved by s. 775.082. No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he or she shall be sentenced to serve.

948.06(3), Florida Statutes (1997); see also Chase v. State, 977 So. 2d 708, 709-10 (Fla. 2d DCA 2008). In this case, Young was sentenced for three first-degree felonies—attempted capital sexual batteries, each of which carried a sentence of thirty years’ incarceration. The sentences Young received upon probation revocation were for ten years’ incarceration plus fifteen years’ probation, with credit for time served of approximately eight months. The combined, effective sentence was twenty-five years, with eight months’ credit. Young alleges he spent an additional four years and eleven months on probation or community control, and that he previously served approximately three-and-one-half years in prison. Under the Florida Supreme Court’s pronouncement Waters v. State, 662 So. 2d 332, 333 (Fla. 1995), when a split sentence is imposed upon a revocation of probation, the total period of past and future incarceration, plus past and future probation or community control, cannot exceed the maximum sentence which could be imposed. We do not have the precise data concerning Young’s incarceration dates, community control, and probation before us. However, we know he served approximately three-and-one-half years in prison, one year on community control, and three-and-one-half years on probation, before he was arrested for violating his probation. We also know his resentence was ten years in prison plus fifteen years’ probation. Young alleges the total of his past, current, and future incarceration, plus probation and community control, would be approximately thirty-three years, in excess of the thirty-year maximum for a first-degree felony. The State further candidly and properly advises that the sentencing guidelines in effect in 1997, the year in which Young committed his crime, further provided that if a split resentence was imposed, it also was possible for the resentencing court to exceed the statutory maximum. See Fla. R. Crim. P. 3.703(d)(31) (providing that if a split sentence was imposed, “[t]he total sanction (incarceration and community control or probation) shall not exceed the term provided by general law or the guidelines recommended sentence where the provisions of subsection 921.001(5) apply”). Because the trial court did not consider the allegations of the amended motion and the law applicable thereto, we reverse and remand for determination whether the total terms of prison, community control, and probation exceeded the legal maximum sentence, and, if so, to provide the defendant partial credit for time previously served on community control or probation, or to reduce the future probationary term.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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ROBERT LEE OSTEEN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-1351.

District Court of Appeal of Florida, Second District.

Opinion filed July 22, 2009.

Appeal from the Circuit Court for Highlands County, Olin W. Shinholser, Judge.

Robert Lee Osteen, pro se.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

Robert Lee Osteen appeals from the order denying his motion for postconviction relief after evidentiary hearing. We reverse and remand for a new evidentiary hearing because the trial court abused its discretion in denying Osteen’s request for appointed counsel. We also reverse the summary denial of Ground Two and direct that Osteen be given an evidentiary hearing on this claim.

Osteen was sixteen when he and two codefendants committed the robbery at issue in this case. Osteen pleaded guilty and was sentenced to two years’ community control followed by eight years’ probation in 2003. The sentence was an agreed-upon downward departure. In imposing sentence, Judge Langford stated: “The Score Sheet calls for a minimum sentence of 75 months State Prison. You can add six months to that, which will be 81 months, if he violates the conditions of Community Control and/or probation that you are going to be put on.”

In 2005, the community control officer filed an affidavit of violation alleging that Osteen failed to remain confined to his approved residence and failed to report as directed. At the revocation hearing, the community control officer recommended that the supervision be restored and Osteen be placed in a residential probation restitution center. She advised that Osteen was twenty years old and that he lacked direction. One of the codefendants had previously violated his community control and had received ninety-six months in prison. Judge Shinholser accepted Osteen’s open admission to the violation and imposed a forty-year sentence. The sentence was affirmed on direct appeal. Osteen v. State, 939 So. 2d 1071 (Fla. 2d DCA 2006) (table).

Osteen filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in January 2007. In Ground One, he alleged that his counsel was ineffective for failing to convey a plea offer before the revocation hearing. In Ground Two, he alleged that his counsel was ineffective for failing to object and preserve for review the issue of Judge Shinholser’s bias and prejudice as evidenced by the presumptively vindictive forty-year sentence and the comments of the judge at the revocation hearing.

The postconviction court entered an initial order on January 26, 2007, directing a response from the State on Ground One and summarily denying Ground Two. The court reasoned that Osteen failed to allege any facts that would demonstrate vindictiveness in sentencing and that because the forty-year sentence was within the sentencing authority of the trial court, there was no basis for an objection by counsel.

Osteen filed an addendum to his motion in August 2007 (Ground Three) claiming that his open plea to the violation of community control was not voluntary because his counsel had failed to inform him that he could have entered a plea to a cap of ninety-six months in an agreement with the State.

In October 2007, the postconviction court ordered an evidentiary hearing for Grounds One and Three. In November 2007, Osteen moved for appointment of counsel for the evidentiary hearing. The postconviction court entered an order denying the motion for appointment of counsel on the basis that the issues were not complex and did not require substantial legal research.

Osteen filed a second addendum to his postconviction motion on November 7, 2007, in which he alleged that counsel was ineffective for failing to discover “the stipulation” by the original judge, Judge Langford, that upon violation of community control, Osteen would receive ninety months (or the low end of the sentencing guidelines). The postconviction court entered an order on December 13, 2007, denying this claim after finding that it was refuted by the transcript of the original sentencing hearing in August 2003 before Judge Langford.

The evidentiary hearing occurred in December 2007. The transcript shows that Osteen first renewed his request for appointed counsel. Osteen told Judge Shinholser that a jailhouse lawyer had prepared his postconviction motion for him and had advised him to object to proceeding without appointed counsel for the hearing. The judge again denied the request for counsel. Osteen indicated that he was unable to proceed without the assistance of counsel. The State moved for directed verdict but also asked the court to reserve ruling until the State put on its case.

The State then called Christopher Boldt, the defense attorney for the violation of community control. Boldt indicated that he had received an offer from the State for a ninety-six month sentence, which was in parity with what the codefendant had received. Boldt had some recollection of a conversation with Osteen immediately preceding the revocation hearing and he remembered using the words “known quantity” with respect to a plea offer. Osteen had responded that he wanted to go home, which Boldt perceived to be a “no” to a negotiation that would involve further incarceration. Boldt met with Osteen the day before the hearing, and Osteen made no indication that he would be willing to accept significant amounts of further incarceration.

The postconviction court stated that the directed verdict was granted. But for the sake of the appellate record, the court found that Boldt provided effective representation, that Boldt did convey the plea offer, and that Osteen rejected the offer because he did not want to serve any more jail time and wanted to go home and the only way he could do that was to enter a straight-up plea. The court found that the plea was voluntary.

Osteen argues on appeal that the postconviction court erred in denying his request for appointed counsel at the evidentiary hearing. We agree that this was an abuse of discretion in that the record does not reflect that Osteen had the capability of representing himself. See Bynum v. State, 932 So. 2d 361 (Fla. 2d DCA 2006).

We also conclude that the summary denial of Ground Two was error. The court rejected this claim after concluding that Osteen’s counsel would have no basis to object to the forty-year sentence. This court has recognized that an allegation of counsel’s failure to object to a vindictive sentence presents a cognizable claim under rule 3.850. St. Pierre v. State, 966 So. 2d 972, 975 (Fla. 2d DCA 2007). The sentencing hearing on the revocation shows that Osteen entered his admission after a lengthy discussion wherein Judge Shinholser discussed whether he could modify Osteen’s probation in accordance with the probation officer’s recommendation without an admission to the violation. Osteen entered his admission to the violation with the impression that the judge would consider modifying the probation as requested. However, after a number of witnesses spoke in Osteen’s favor, the court stated: “The real debate here today is not whether I should follow the recommendation of your attorney or follow the recommendation of the State Attorney but whether I should impose a Life sentence. That’s the real debate.” The court made this comment after the State argued at length that a ninety-six month sentence was appropriate because Osteen and the codefendant were equally culpable and the codefendant had received ninety-six months.

Given the disparity between the sentence imposed and the recommendations of the State and probation officer, we are unable to say that the record conclusively refutes the allegation that counsel was ineffective for failing to challenge the sentence on the basis of bias, prejudice, or vindictiveness. Therefore, we reverse the summary denial of this claim. Because Judge Shinholser has already ruled that Osteen’s claim is without merit and a reasonable person in Osteen’s position might well fear that Judge Shinholser would not fairly and impartially determine this claim, a different judge shall be assigned to the case on remand. Cf. St. Pierre, 966 So. 2d at 975-76 (issuing writ of prohibition disqualifying judge from further participation in case).

We reject without discussion the other issues raised by Osteen on appeal.

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

KHOUZAM, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

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

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THOMAS L. STEPHENS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2396.

District Court of Appeal of Florida, Fourth District.

July 22, 2009.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Nelson Bailey, Judge, L.T. Case No. 06-12920 CFA06.

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

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

POLEN, J.

Appellant, Thomas L. Stephens, timely appeals the trial court’s entry of his guilty plea and denial of his motion to correct sentence on the charge of aggravated battery with a deadly weapon. We affirm the trial court’s entry of appellant’s guilty plea without further discussion; however, as to the second issue, we reverse and remand this case for resentencing.

Appellant was charged in connection with an incident in which he threw a broken glass bottle at a woman, and struck her in the face. The broken bottle lacerated and permanently blinded the woman’s left eye.

After accepting appellant’s guilty plea, the trial court sentenced him to 15 years of probation with 51.45 months in prison as a condition of probation. In appellant’s 3.800(b)(2) motion to correct sentence, he moved to eliminate the “condition of probation” language in the imprisonment order and to strike the additional 15 year probationary term. Fla. R. Crim. P. 3.800(b)(2). In response, the trial court resentenced appellant to 14 years and 5 months probation with 51.45 months in prison as a special condition of probation. The sentence is illegal under Florida statutory law. The State correctly agrees that resentencing is necessary.

Section 948.03(2) of the Florida Statutes (2007) provides:

[I]f the court withholds adjudication of guilt or imposes a period of incarceration as a condition of probation, the period shall not exceed 364 days, and incarceration shall be restricted to either a county facility, a probation and restitution center under the jurisdiction of the Department of Corrections, a probation program drug punishment phase I secure residential treatment institution, or a community residential facility owned or operated by any entity providing such services.

(Emphasis added.) Here, the imposed 51.45 month jail sentence exceeds 364 days and is thus improper, as appellant argues and the State concedes. The Florida Supreme Court has given guidelines for correcting sentences of this nature. Beach v. State, 436 So. 2d 82 (Fla. 1983) (instructing that a trial judge may impose a sentence of imprisonment no longer than the originally ordered combined period of incarceration and probation in correcting a voidable order of punishment for a criminal offense).

Accordingly, we reverse and remand for resentencing consistent with this opinion.

WARNER and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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ROBIN NAVAMUEL, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2289.

District Court of Appeal of Florida, Fourth District.

July 22, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Eileen M. O’Connor, Judge, L.T. Case No. 05-9594 CF 10A.

Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

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

TAYLOR, J.

The appellant, Robin Navamuel, was charged by information with possession of a firearm or electric weapon by a convicted felon (Count I), possession of cannabis with intent to deliver/sell (Count II), and possession of drug paraphernalia (Count III). He entered a plea of no contest on all three counts and now appeals the trial court’s denial of his motion to suppress evidence. Appellant argues that the trial court erred in denying his motion because law enforcement agents initially searched his home without a warrant or valid consent and then continued the search with a warrant based on the illegally obtained evidence. We agree and reverse.

At the hearing on the motion to suppress, several DEA agents and the appellant testified. DEA Agent Randy Matschner testified that agents began surveilling appellant after an informant told Matschner that appellant was involved in marijuana cultivation and sales and that he was a friend of another subject, Darren Frase, whom the DEA had been investigating for drug activity. During a search of Frase’s home, Agent Matschner told Agents Scott Hahn and Armando Roche to go to appellant’s home to try to get consent to search his home.

Agents Hahn and Roche testified that they drove to appellant’s house. Agent Roche pulled into the front driveway behind appellant’s parked car while Agent Hahn parked in the swale area. Both agents approached appellant in the driveway near his car and told him that they were going to conduct a pat down for their safety. After Agent Roche removed appellant’s wallet and a large roll of cash and patted him down, the agents obtained appellant’s verbal consent to search his home. Once in the house, the agents observed a partially smoked marijuana cigarette in an ashtray on the kitchen counter. More DEA agents arrived soon thereafter to assist with the search and found additional marijuana in a kitchen drawer. During the search, appellant revoked his consent but then changed his mind and allowed the agents to continue the search. The agents found a bag of marijuana under a couch in the living room and hydroponic grow equipment in the back bedroom. Agent Roche placed appellant under arrest. After appellant withdrew consent the second time, agents left the residence and applied for a search warrant. The warrant was issued upon allegations in the application that a consensual search of the residence led to the recovery of marijuana.

With regard to the initial encounter between the agents and appellant, appellant testified that he was already inside his car when the agents pulled into the driveway and blocked his car. Agent Roche got out with his gun drawn and told him to “show me your hands, put your hands out the window” and turn off the car using one hand. According to appellant, Roche kept his gun drawn until appellant got out of his car. Then Roche re-holstered his weapon and told him he was going to pat him down.

Appellant filed a motion to suppress evidence. His motion asserted that the initial search of his home was done without a warrant, valid consent, or exigent circumstances and that the search warrant was obtained after the initial illegal search and based on misrepresentations by the police. After numerous evidentiary hearings, the trial court denied the motion. Appellant pled no contest to the charges and reserved his right to appeal the denial of his motion to suppress.

The state’s sole justification for the initial warrantless search of appellant’s home was consent. In denying the motion to suppress, the trial court ruled that the initial encounter between the officers and appellant in the driveway was a “consensual citizen encounter” and that the initial search of appellant’s home was consensual.

A ruling on a motion to suppress is a mixed question of fact and law. Smith v. State, 997 So. 2d 499, 500 (Fla. 4th DCA 2008). Although appellate courts must accept a trial court’s determination of historical facts that are supported by competent substantial evidence, we must independently review the trial court’s application of those facts to the law in resolving constitutional issues arising from the Fourth and Fifth Amendment. Globe v. State, 877 So. 2d 663, 668-69 (Fla. 2004); Delorenzo v. State, 921 So. 2d 873, 876 (Fla. 4th DCA 2006). In other words, we review the trial court’s legal conclusions de novo. State v. Christman, 838 So. 2d 1189, 1191 (Fla. 2d DCA 2003).

“The trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence . . . .” Delorenzo, 921 So. 2d at 876. In this case, the trial court was free to reject appellant’s testimony in determining that the initial encounter between the officers and appellant in the driveway was a “consensual citizen encounter.” The court went on, however, to find that during this consensual encounter the agents “conducted a pat-down of the Defendant for their safety.” As appellant points out, the record contains no evidence, and the trial court makes no findings, that there was consent or justification for the weapons pat down. No testimony was presented at the hearing that the defendant consented to being frisked. Moreover, no evidence was adduced that the officers possessed any information or made any observations during the consensual encounter to form a belief that the defendant was armed and dangerous. Although the state does not address this issue, appellant makes a compelling argument that the weapons pat down, which the agents conducted before obtaining his consent to search his home, was unlawful and thus invalidated his consent and tainted all the evidence seized.

Johnson v. State, 785 So. 2d 1224, 1225 (Fla. 4th DCA 2001), we considered “whether a police officer may conduct a pat down for weapons during what began as a consensual encounter with a citizen.” We determined that, if during the encounter an officer makes observations that support his “reasonable belief that the appellant [is] armed and potentially dangerous,” the officer is entitled to conduct a pat down pursuant to the Fourth Amendment. Id. We also recognized that some courts “suggest that a pat down transforms a consensual encounter `into a stop requiring closer scrutiny.’” Id. at 1228 (citing Sholtz v. State, 649 So.2d 283, 284 (Fla. 2d DCA 1995) and Hamilton v. State, 612 So. 2d 716, 718 (Fla. 2d DCA 1993)).

In Delorenzo, the defendant was asleep in his parked car in a shopping center parking lot at 3:30 in the morning when he was approached by a police officer on patrol. The trial court found that the officer told the defendant to remove his hand from his pocket and then instructed him to step out of his car. After again asking the defendant to remove his hand from his pocket, the officer obtained his consent to search for officer safety. During the search, as the officer was pulling out a pack of matches, a baggy containing cocaine fell to the ground. The trial court concluded that the search was consensual and denied the defendant’s motion to suppress the cocaine. We reversed. We held that the police officer’s order directing the defendant to remove his hand from his pocket and step out the car converted the interaction between the officer and the defendant from a consensual encounter to an investigatory stop. We explained that because the officer lacked any reasonable suspicion of criminal activity and had no reasonable basis to fear for his safety, the investigatory stop was illegal. Id. at 878-879. We stated:

There are times during an officer’s encounter with an individual, when the officer’s observations may lead to a belief that the individual is armed and dangerous, a belief the officer did not hold when the encounter was initiated. Under certain factual circumstances this court has held that concern for an officer’s safety may create reasonable suspicion warranting an investigatory stop. See Johnson, 785 So. 2d 1224; Brown v. State, 714 So. 2d 1191 (Fla. 4th DCA 1998). However, as pointed out in Brown, not every “consensual encounter may escalate to an investigative stop simply because the officer generally has safety concerns.”

Id. at 877.

Finally, in DeLorenzo, we rejected the trial court’s finding and the state’s argument that the defendant consented to the search during the investigatory stop. We stated: “Consent given after police conduct determined to be illegal is presumptively tainted and deemed involuntary, unless the state proves by clear and convincing evidence that there was a clear break in the chain of events sufficient to dissolve the taint.” Id. at 879 (citing Scott v. State, 696 So. 2d 1335, 1336 (Fla. 4th DCA 1997)and Faulkner v. State, 834 So. 2d 400, 403 (Fla. 2d DCA 2003)).

In sum, the state did not present evidence or argue that the agents had a well-founded suspicion of criminal activity to justify an investigatory stop when they encountered appellant in his driveway. Instead, the state argued, and the trial court found, that the contact was a consensual citizen encounter. The state, however, failed to establish that during the encounter the agents had a reasonable belief that appellant was armed and dangerous to justify patting him down. The illegal pat down converted the consensual encounter into an unlawful stop. Because the state failed to show by clear and convincing evidence a break in the chain of events from the time the officers conducted the illegal stop and frisk and obtained appellant’s consent to search, his consent is deemed involuntary. Thus, the motion to suppress should have been granted and all the physical evidence derived from this illegal stop and frisk excluded as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488 (1963). This includes any evidence the agents found in appellant’s house after securing the search warrant, because the warrant was tainted by the prior illegal search of the house. Grant v. State, 978 So. 2d 862 (Fla. 2d DCA 2008).

Reversed and Remanded.

WARNER and POLEN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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James C. Marshall, Appellant,
v.
The State of Florida, Appellee.

No. 3D06-3205.

Consolidated: 3D06-3204.

District Court of Appeal of Florida, Third District.

Opinion filed July 22, 2009.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge, Lower Tribunal Nos. 03-7778, 04-10361.

Roderick D. Vereen, for appellant.

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

Before COPE, SHEPHERD, and SUAREZ, JJ.

On Motion for Rehearing

SUAREZ, J.

We grant James C. Marshall’s motion for rehearing, withdraw our previously rendered per curiam opinion dated March 25, 2009, and substitute the following in its place:

James C. Marshall appeals from his conviction for one count of second degree murder. We affirm.

We address only the claim that the trial court committed reversible error by not conducting a proper Faretta¹ hearing. Based upon our review of the record, Marshall’s alleged requests for self-representation were at best equivocal; he was not entitled to an inquiry on the subject of self-representation under Faretta. See Rios v. State, 696 So. 2d 469 (Fla. 2d DCA 1997) (holding that if court-appointed counsel is found, after a proper Nelson inquiry,² to be rendering effective assistance and the defendant insists that he still wants to discharge him or her, then a Faretta hearing is in order); accord Davila v. State, 829 So. 2d 995 (Fla. 3d DCA 2002)(finding that because there was no unequivocal request for self-representation, the defendant was not entitled to an inquiry on the subject of self-representation under Faretta). Further, we cannot conclude from the record before us that the trial court abused its discretion in refusing to permit Marshall to discharge his counsel after holding a proper Nelson hearing. See Rios, 696 So. 2d at 471.

We affirm all remaining issues on appeal.

Affirmed.

—————

Notes:

—————

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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.

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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.

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Notes:

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Courtesy of David Edelstein

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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

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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

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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

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