Florida Criminal Law Opinions

THOMAS TURNER, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D07-3220. District Court of Appeal of Florida, Fourth District. August 26, 2009Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, John J. Murphy, III, Judge, L.T. Case Nos. 03-11358 CF10A & 06-14347 CF10A.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

After entering a no contest plea to possession of cocaine, Thomas Turner was sentenced to three years probation. In this violation of probation proceeding, the trial court found Turner guilty of each of three charged violations of that probation and sentenced him, as a habitual felony offender (HFO), to five years incarceration. Turner insists that the evidence was insufficient to establish any of the violations and that the trial court erred in imposing an HFO sentence. We reject, without further comment, Turner’s sufficiency of the evidence claim. As the State concedes, however, there is merit in the argument regarding the HFO sentence. Not only did the court’s oral pronouncement of sentence fail to include an HFO designation, but the offense for which sentence was imposed was possession of cocaine, in violation of section 893.13, Florida Statutes (2003). A violation of section 893.13 cannot provide the basis for the imposition of an HFO sentence. See § 775.084(1)(a)3., Fla. Stat. (2003). We thus affirm the revocation of probation, but remand the matter, directing the trial court to correct the sentencing order by removing the HFO designation.

Affirmed in part; reversed in part; and remanded.

STEVENSON, MAY and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Demetrius Dyer, Appellant,
v.
The State of Florida, Appellee. No. 3D07-2487. District Court of Appeal of Florida, Third District. Opinion filed August 26, 2009.An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge. Lower Tribunal No. 02-18846.

Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Roland A. Soler, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.

PER CURIAM.

Demetrius Dyer appeals the trial court’s denial of his motion to suppress incriminating statements he made to the police while in custody following a five-hour period of questioning during which three teams of five detectives tried to get him to speak. We affirm because Dyer’s Miranda rights were not violated.

During the period of questioning, Dyer never invoked his right to silence. He simply ignored the detectives and stared at the wall. The inquiry was intermittent and pertained only to questions like his name, personal background, and date of birth. When Dyer finally agreed to speak, he was read his Miranda rights.

Jump v. State, 983 So. 2d 726 (Fla. 1st DCA 2008), State v. Lebron, 979 So. 2d 1093 (Fla. 3d DCA 2008), and State v. Pitts, 936 So. 2d 1111 (Fla. 2d DCA 2006), the courts have held that, where a defendant makes a statement after receiving a Miranda warning which confirms an earlier voluntary statement made before Miranda warnings were given, the post-Miranda statement is admissible if the police officer did not engage in a calculated two-step strategy to undermine the requirements of Miranda. Oregon v. Elstad, 470 U.S. 298, 318 (1985), the Supreme Court held “that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.”

Dyer’s argument is even weaker than the defendants’ arguments in Jump, Lebron, and Pitts because he made no incriminating statements prior to the administration of his Miranda rights. Dyer’s Miranda rights were thus not undermined.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

LEE NELSON, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-3889 District Court of Appeal of Florida, Fourth District. August 26, 2009.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Marc H. Gold, Judge, L.T. Case No. 07-22369CF10A.

Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

This appeal presents the question of whether a defendant with prior non-drug felony convictions is eligible for an alternative sentence under section 948.20, Florida Statutes (2008). We answer yes, and remand for the circuit court to consider the defendant’s motion for alternative sentencing.

The State charged the defendant with possession of cocaine under section 893.13(6)(a), Florida Statutes (2008), plus three misdemeanors. The defendant entered a no contest plea to the court on the charges. During the plea colloquy, the defendant moved for alternative sentencing under section 948.20, Florida Statutes (2008), which states:

If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a), the court may either adjudge the defendant guilty or stay and withhold the adjudication of guilt; and, in either case, it may stay and withhold the imposition of sentence and place the defendant on drug offender probation.

(1)The Department of Corrections shall develop and administer a drug offender probation program which emphasizes a combination of treatment and intensive community supervision approaches and which includes provision for supervision of offenders in accordance with a specific treatment plan. The program may include the use of graduated sanctions consistent with the conditions imposed by the court. Drug offender probation status shall include surveillance and random drug testing, and may include those measures normally associated with community control, except that specific treatment conditions and other treatment approaches necessary to monitor this population may be ordered.

(2) Offenders placed on drug offender probation are subject to revocation of probation as provided in s. 948.06.

§ 948.20, Fla. Stat (2008).¹

The defendant expressed that, if the circuit court denied the motion, the defendant would reserve the right to appeal that denial. The circuit court, relying on State v. Langdon, 978 So. 2d 263 (Fla. 4th DCA 2008), denied the motion, finding that the defendant was ineligible for an alternative sentence under section 948.20 because he had prior nondrug felony convictions. After completing the plea colloquy and a brief sentencing hearing, the circuit court adjudicated the defendant guilty on all counts and sentenced him to thirty-six months in prison on the cocaine charge and time served on the misdemeanors.

The defendant appeals, arguing that the circuit court erred in finding the defendant ineligible for an alternative sentence under section 948.20 because he had prior non-drug felony convictions. The State responds that the statute’s use of the word “may” in the first paragraph gives a court the discretion to grant or deny motions under the statute, and the circuit court did not abuse its discretion in denying the motion because the defendant had both non-drug and drug convictions.

The record indicates that the circuit court denied the motion as a matter of law based on its interpretation of Langdon, not based on the exercise of its discretion under the statute. Therefore, our review is de novo. State v. Sigler, 967 So. 2d 835, 841 (Fla. 2007) (“[J]udicial interpretation of statutes . . . are pure questions of law subject to the de novo standard of review.”).

We agree with the defendant that the circuit court erred in finding the defendant ineligible for an alternative sentence under section 948.20 because he had prior non-drug felony convictions. The circuit court inadvertently misinterpreted Langdon. That case dealt with a different statute, section 948.034, which covers terms and conditions of probation in a community residential treatment center for defendants committing the drug offenses enumerated in chapter 893. 978 So. 2d at 264. We held in Langdon that a defendant who has a felony conviction of a nondrug related offense is not eligible to receive an alternate sentence under section 948.034. Id. We reached that holding because section 893.13 expressly states that a court may sentence a defendant to probation under section 948.034 if the defendant has not previously been convicted of a non-drug felony. Id. at 264-65 (citing § 893.13(10) and (11), Fla. Stat.).

Section 893.13 does not prohibit a court from considering an alternative sentence under section 948.20 if the defendant has been convicted of a non-drug felony. Nor does any other statute contain such a prohibition. The circuit court erred by imposing such a prohibition in this case, requiring that this court reverse the judgment and sentence.

On remand, the circuit court shall reconsider the defendant’s motion for alternative sentencing under section 948.20′s plain language. Neither the circuit court nor the parties should interpret this opinion as suggesting that the circuit court must stay and withhold the adjudication of guilt or the imposition of sentence or place the defendant on drug offender probation. Rather, the circuit court retains the discretion to decide the defendant’s motion under the statute’s terms.

Reversed and remanded.

DAMOORGIAN and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

Luis Del Valle, Appellant,
v.
The State of Florida, Appellee. No. 3D08-1603. District Court of Appeal of Florida, Third District. Opinion filed August 26, 2009.An Appeal from the Circuit Court for Miami-Dade County, Bertila Soto, Judge, Lower Tribunal No. 05-26781-C.

Eric M. Cohen, for appellant.

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

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

COPE, J.

This is an appeal of a conviction for first degree murder and other offenses. Defendant-appellant Del Valle contends that the trial court erred by denying his motion to suppress his confession. We affirm.

After the murder in this case, the Hialeah Police Department suspected that the crime might have been gang-related. Detective Spitler, of the gang investigation unit, saw the defendant walking down the street with his girlfriend, and knew that the defendant was a member of the Hillside Gangsters. The detective believed that possibly Hillside members might have information on the homicide. He asked if the defendant would take a ride with him in his unmarked car to talk to a detective. The defendant and his girlfriend got in. The detective took them both to the Hialeah Police Station.

Detective Arango arrived and conducted an interview of the defendant in the detective’s office while the girlfriend remained in another detective’s office. Detective Arango advised the defendant that he was a suspect and administered Miranda^* warnings. In an unrecorded conversation, the defendant indicated that he would not discuss anything related to the murder, but was willing to look at photographs and advise the detective if he knew the persons. He did this, and signed the photographs.

The defendant agreed to give a taped statement regarding the foregoing. After several minutes of the taped discussion, the defendant stated that he did not want to speak anymore. The detective then asked several questions to determine whether the defendant did not want to speak at all, or whether the defendant remained willing to discuss the identifications of the individual gang members. The defendant twice reiterated that he did not want to speak any more. The detective then terminated the recorded statement. The detective told the defendant that he was going to speak with the defendant’s girlfriend and asked if the defendant would mind waiting while he did so. The defendant said no problem, and waited in the office.

The detective spoke with the girlfriend for an hour and ten minutes, and then returned to tell the defendant he was finished. At that point the defendant said he wanted to tell the detective what had happened. The detective specifically testified that he “did not initiate that part of [the] conversation, the defendant did.” The defendant then gave a second taped interview in which he admitted committing the crime.

The trial court denied the motion to suppress, finding that the statement was given freely and voluntarily. The court stated that it had no reason to doubt that the defendant initiated the second statement, and found that proper Miranda warnings had been given at the outset.

The defendant argues that the defendant’s invocation of the right to terminate questioning was not “scrupulously honored” within the meaning of Michigan v. Mosley, 423 U.S. 96 (1975). We disagree. As the Florida Supreme Court said in a similar case, “upon consideration of the totality of the circumstances, we believe that the police did not violate the principles of Miranda or Mosley in obtaining appellant’s confession.” Henry v. State, 574 So. 2d 66, 69 (Fla. 1991).

The defendant relies on State v. Brown, 592 So. 2d 308 (Fla. 3d DCA 1991), but that case is not on point. There the defendant invoked his right to silence and requested counsel. The officer continued to discuss the case and outlined the State’s evidence against the defendant. The officer then left the defendant handcuffed in an interrogation room for an hour and a half, after which he was taken to a booking room. The defendant then stated that he wanted to tell the truth, waived his previously-invoked rights to silence and counsel, and gave a statement. The majority opinion in Brown held that the officer’s monologue about the State’s case against the defendant amounted to “interrogation” for Miranda purposes. Brown, 592 So. 2d at 308-09.

In the present case, the detective engaged in no such conduct. After questioning ceased, the defendant remained in the detective’s office, and was not handcuffed, while the detective spoke with the girlfriend in an adjacent office. The trial court believed the detective’s testimony that, upon returning to tell the defendant that the questioning of the girlfriend was completed, the defendant initiated the conversation with the detective and stated that he wanted to tell the detective what had happened.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

PENNY LIVINGSTON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-3648. District Court of Appeal of Florida, Second District. Opinion filed August 26, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County, Michael E. Raiden, Judge.

WHATLEY, Judge.

Penny Gail Livingston appeals the order summarily denying her motion for postconviction relief. We reverse because the postconviction court failed to comply with Florida Rule of Criminal Procedure 3.850(d).

In the order summarily denying her motion, the postconviction court began by stating, “In the event Defendant appeals this order, the Clerk of Court is directed to forward the record to the Second District Court of Appeal.” The clerk did not forward the record to this court. Even if it had, “Florida Rule of Criminal Procedure 3.850(d) is not satisfied by merely attaching the entire record on appeal.” Banks v. State, 975 So. 2d 1268, 1269 (Fla. 4th DCA 2008) (citing Hoffman v. State, 571 So. 2d 449 (Fla. 1990)). Rather, rule 3.850(d) provides that the postconviction court shall attach a copy of the portions of the files and records that conclusively show that the movant is entitled to no relief. While the postconviction court refuted Livingston’s allegations by citing to the transcript and sometimes quoting from it, it did not attach the portions of the record it cited, as required by rule 3.850(d).

Accordingly, we reverse and remand with directions that the postconviction court attach those portions of the record that conclusively refute Livingston’s allegations or conduct an evidentiary hearing.

Reversed and remanded with directions.

VILLANTI and CRENSHAW, JJ., Concur.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

M.N., Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-1953. District Court of Appeal of Florida, Second District. Opinion filed August 26, 2009.Appeal from the Circuit Court for Hillsborough County, Denise A. Pomponio, Judge.

James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Robert J. Krauss, Chief-Assistant Attorney General, Tampa, for Appellee.

EN BANC

SILBERMAN, Judge.

M.N., a juvenile, seeks review of the trial court’s order placing him on probation. M.N. entered a no contest plea to the charges in this case while attempting to reserve the right to appeal the denial of his motion to continue. We affirm because the motion to continue was not dispositive and M.N. did not otherwise preserve any issues for review. We write because our affirmance requires us to recede from a case suggesting that dismissal is the proper remedy.

M.N. entered an open, no contest plea to charges of burglary of an occupied dwelling and criminal mischief. At the change of plea hearing, counsel for M.N. requested a continuance because, on the previous evening, a witness the defense had been trying to locate contacted M.N. online and gave M.N. her telephone number. According to M.N., the witness had invited him to the house he allegedly burglarized. M.N. acknowledged that the online contact did not include any information as to what the witness might say. The court denied the motion, noting that the case had been reset several times.

M.N. then agreed to enter a no contest plea to the charges contingent upon his right to appeal the denial of his motion to continue. The court accepted M.N.’s plea, noting that M.N. was reserving the right to appeal the denial of his motion to continue. However, the court did not expressly find the motion to be dispositive. The State did not object to M.N.’s attempt to reserve the right to appeal the denial of his motion to continue. The court ordered adjudication withheld and placed M.N. on probation until M.N.’s nineteenth birthday.¹

On appeal, counsel filed briefs pursuant to Anders v. California, 386 U.S. 738 (1967), and In re Appellate Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991), and asserted that no meritorious issues exist for appellate review. Counsel recognized that M.N. had entered his plea while attempting to reserve his right to appeal the denial of his motion to continue. However, counsel asserted that there was no basis for review because the motion to continue was not truly dispositive.

A defendant may appeal from a judgment based on a no contest plea if he expressly reserves the right to appeal a dispositive order of the trial court. See Fla. R. App. P. 9.140(b)(2)(A)(i). A motion is dispositive if the State could not proceed to trial if the defendant prevailed on the appeal of the ruling on the motion. See Blow v. State, 993 So. 2d 540, 542 (Fla. 2d DCA 2007), Ashley v. State, 611 So. 2d 617, 618 (Fla. 2d DCA 1993). In this case, the motion to continue was not dispositive because reversal on appeal would not have prevented the State from proceeding to trial, instead, reversal would have merely allowed M.N. to attempt to locate a defense witness to use at trial.

Because M.N. has not expressly reserved a dispositive order for review, we must affirm his conviction. See Leonard v. State, 760 So. 2d 114, 119 (Fla. 2000). We recognize that, under similar circumstances, this court has previously dismissed the appeal for lack of jurisdiction. See Blow, 993 So. 2d at 542, Ashley, 611 So. 2d at 618. In Leonard, however, the supreme court determined that a defendant’s failure to preserve an issue for review after entry of a plea is not a jurisdictional bar to appeal but is a limitation on the issues that can be addressed on appeal. Id. at 118. Thus, the court held that district courts should not dismiss appeals from pleas upon a determination that they do not present a dispositive issue that was reserved for review but should summarily affirm such decisions.² Id. at 119, see also Sears v. State, 920 So. 2d 709, 709 (Fla. 4th DCA 2006) (affirming judgment and sentence entered pursuant to plea based on determination that the court’s ruling on his motion to suppress was not dispositive). The supreme court has recognized that Leonard applies to juvenile cases. See State v. T.G., 800 So. 2d 204, 209 n.3 (Fla. 2001).

In light of the controlling authority of Leonard, we recede from Blow to the extent it is inconsistent with this case. We also recede from that portion of any other case decided after Leonard in which this court dismissed an appeal from a plea for lack of jurisdiction based on the appellant’s failure to preserve a dispositive issue for review. To the extent that M.N. believes his plea was involuntary because he was led to believe he could appeal the denial of his motion to continue, our affirmance is without prejudice to any right M.N. might have to file a petition for writ of habeas corpus in the circuit court. See D.E.R. v. State, 993 So. 2d 1030, 1030 (Fla. 2d DCA 2008).

Affirmed without prejudice to M.N.’s right to file a timely petition for writ of habeas corpus.

CASANUEVA, C.J., and ALTENBERND, FULMER, WHATLEY, NORTHCUTT, DAVIS, KELLY, VILLANTI, WALLACE, LaROSE, CRENSHAW, and MORRIS, JJ.,³ Concur.

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

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

ROBERT DENNIS BERCH, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 1D09-2581. District Court of Appeal of Florida, First District. Opinion filed August 21, 2009.Petition for Belated Appeal — Original Jurisdiction.

William White, Public Defender, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.

Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the judgment and sentence rendered on March 27, 2009, in Duval County Circuit Court case number 16-2008-CF-005718-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ALLEN, DAVIS, and PADOVANO, 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

JERMARAL RAMON COBB, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D09-1787. District Court of Appeal of Florida, First District. Opinion filed August 21, 2009.An appeal from the Circuit Court for Gilchrist County. Stan R. Morris, Judge.

Jermaral Ramon Cobb, pro se, Appellant.

Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Having considered appellee’s motion for remand and reconsideration of order under review, we have determined that the motion is well-taken. The Florida Supreme Court has recently adopted a comprehensive set of rules to be used in civil proceedings under Chapter 394, Part V, “The Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators’ Treatment and Care Act.” See In re Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators, 34 Fla. L. Weekly S405 (Fla. July 9, 2009). Newly adopted rule 4.460 provides that a respondent in a civil commitment proceeding “may file a petition for habeas corpus alleging ineffective assistance of counsel in the county in which the judgment was rendered within two years after the judgment becomes final.” Accordingly, the order of the circuit court is reversed and the cause is remanded with directions to treat the previously filed rule 1.540 motion as a petition for writ of habeas corpus alleging ineffective assistance of counsel.

ALLEN, DAVIS, and PADOVANO, 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

VINCENT A. BROOKS, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 1D09-1624. District Court of Appeal of Florida, First District. Opinion filed August 21, 2009..Petition for Belated Appeal — Original Jurisdiction.

Vincent A. Brooks, pro se, Petitioner.

Bill McCollum, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the July 25, 2008, order terminating any further DNA testing issued in Duval County Circuit Court case number 1990-CF-6731-AXXX. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ALLEN, DAVIS, and PADOVANO, 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

ELMER MOORE, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 1D09-1400. District Court of Appeal of Florida, First District. Opinion filed August 21, 2009.Petition for Belated Appeal — Original Jurisdiction.

Elmer Moore, pro se, Petitioner.

Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition for belated appeal is denied. However, the correspondence filed in this court on December 29, 2008, in case number 1D08-0654 shall be treated as a timely notice of appeal to review the December 2, 2008, circuit court order denying defendant’s motion for postconviction relief in Duval County circuit Court case number 16-2006-CF-0786-AXXX.

ALLEN, DAVIS, and PADOVANO, 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