Florida Criminal Law Opinions

ANTHONY ERIC JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-809. District Court of Appeal of Florida, Second District. Opinion filed August 21, 2009.Appeal from the Circuit Court for Hillsborough County, Mark R. Wolfe, Judge.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

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

PER CURIAM.

Anthony Eric Johnson appeals his judgment and sentences for trafficking in cocaine and conspiracy to traffic in cocaine. Johnson’s appellate counsel filed a motion to reverse the judgment because of the incomplete record based on the court reporter’s certification that “due to equipment failure and human error,” she is unable to produce a transcript of the second day of Johnson’s two-day jury trial. This court relinquished jurisdiction to allow the parties an opportunity to reconstruct the record pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Having now reviewed and reconsidered the various motions, responses, orders, and status reports that have been filed in an attempt to reconstruct the record, this court concludes that reconstruction of an adequate record for meaningful appellate review is not possible. See Green v. State, 855 So. 2d 687 (Fla. 2d DCA 2003); Berube v. State, 771 So. 2d 1263 (Fla. 2d DCA 2000); Thomas v. State, 828 So. 2d 456 (Fla. 4th DCA 2002). Accordingly, we reverse Johnson’s judgment and sentence and remand for a new trial.

Reversed and remanded.

FULMER, WALLACE, and LaROSE, JJ., Concur.

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STATE OF FLORIDA, Appellant,
v.
ABRAM M. BLAND, Appellee. Case No. 1D08-5440. District Court of Appeal of Florida, First District. Opinion filed August 21, 2009.An appeal from the Circuit Court for Duval County. John M. Merrett, Judge.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Bureau Chief-Criminal Appeals, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, and Mara B. Levy, Special Assistant Public Defender, Tallahassee, for Appellee.

PER CURIAM.

In this direct criminal appeal, the state seeks review of an order granting appellee’s motion to dismiss the information charging appellee with sexual battery on a mentally defective person. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(A). See State v. Feagle, 604 So. 2d 824 (Fla. 1st DCA 1991). Although the trial court granted appellee’s motion to dismiss upon finding that section 794.01 l(4)(e), Florida Statutes (2007), was unconstitutional as applied to appellee’s sexual acts with the victim, we decline to address this constitutional question because the case can be resolved on nonconstitutional grounds. See In re Holder, 945 So. 2d 1130, 1133 (Fla. 2006) (noting that the court will avoid considering a constitutional question when the case can be decided on nonconstitutional grounds); Singletary v. State, 322 So. 2d 551, 552 (Fla. 1975) (adhering to the “settled principle of constitutional law that courts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.”). We affirm the trial court’s order granting appellee’s motion to dismiss because the undisputed facts did not establish a prima facie case that the victim was “mentally defective.” See State v. Torresgrossa, 776 So. 2d 1009, 1011 (Fla. 5th DCA 2001); Mathis v. State, 682 So. 2d 175, 180-81 (Fla. 1st DCA 1996).

AFFIRMED.

WEBSTER, DAVIS, and LEWIS, JJ., CONCUR.

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KERI SZEWCZYK, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-4441. District Court of Appeal of Florida, Second District. Opinion filed August 21, 2009.Appeal from the Circuit Court for Charlotte County, Lynne E. Dailey, Judge.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Keri Szewczyk appeals her sentence of three years’ incarceration followed by eight years’ probation that was imposed upon the revocation of her probation. She correctly contends that the sentence was illegal because it exceeded the three-year suspended incarcerative component of the true split sentence that was originally imposed for an offense she committed on August 8, 2003. See Sullivan v. State, 625 So. 2d 955 (Fla. 2d DCA 1993); see also Evans v. State, 730 So. 2d 768 (Fla. 1st DCA 1999). The State properly concedes that Szewczyk’s sentence was illegal. Accordingly, we reverse and remand for resentencing.

Reversed and remanded for resentencing.

WALLACE and LaROSE, JJ., Concur.

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JEFFREY JOSEPH MARZENDORFER, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-3272. District Court of Appeal of Florida, First District. Opinion filed August 21, 2009.An appeal from the Circuit Court for Santa Rosa County, R.V. Swanson, Judge.

Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Bryan Jordan, Assistant Attorney General, and Ian M. Cotner, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant challenges the trial court’s denial of his motion to dismiss the allegation that he violated probation by failing to abide by the special condition prohibiting him from possessing or consuming alcohol, and the subsequent revocation of his probation based on his violating this condition, on grounds that the condition was illegally imposed. Because Appellant is not entitled now to challenge the legality of the special condition, these claims do not merit discussion. Matthews v. State, 736 So. 2d 72, 75 (Fla. 4th DCA 1999) (quoting State v. Powell, 703 So. 2d 444 (Fla. 1997)).

However, Appellant’s claim that the trial court erred in revoking his probation for his failure to pay restitution without making a determination that he had the ability to pay is meritorious. It is undisputed that Appellant failed to pay restitution. However, “before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.” Stephens v. State, 630 So. 2d 1090, 1091 (Fla. 1994). Here, the trial court reversibly erred in failing to make a determination that Appellant had the ability to pay restitution, and therefore, the finding that Appellant willfully violated the condition requiring him to pay restitution must be stricken from the probation order. See Odom v. State, 34 Fla. L. Weekly D1278 (Fla. 1st DCA June 24, 2009). Because it is unclear from the record whether the trial court would have revoked probation and imposed the same sentence based solely on Appellant’s violation of the condition prohibiting him from possessing or consuming alcohol, we reverse the revocation order and remand for further proceedings. Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997); Mordica v. State, 618 So. 2d 301, 305 (Fla. 1st DCA 1993).

REVERSED AND REMANDED.

WOLF, WEBSTER, AND CLARK, JJ., CONCUR.

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FRANK F. HIGGINBOTHAM, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-3269. District Court of Appeal of Florida, First District. Opinion filed August 21, 2009.An appeal from the Circuit Court for Levy County, Maurice V. Giunta, Judge.

Nancy A. Daniels, Public Defender, Steven L. Seliger and David P. Gauldin, Assistant Public Defenders, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

BARFIELD, J.

Appellant challenges the denial of a motion to suppress evidence seized in the warrantless search of his motel room, which resulted in convictions for drug offenses. He contends that the trial judge erred in denying his motion to suppress the evidence seized from the motel room, based on the “exigent circumstances” exception to the warrant requirement, where the circumstances were very similar to those presented Gnann v. State, 662 So. 2d 406 (Fla. 2d DCA 1995), Levine v. State, 684 So. 2d 903 (Fla. 4th DCA 1996), Rebello v. State, 773 So. 2d 579 (Fla. 4th DCA 2000), and State v. Garcia, 866 So. 2d 124 (Fla. 4th DCA 2004). He asserts that the possibility that illegal drugs might be destroyed did not exist until the police, through an informant, knocked on the motel room door, and that a warrantless entry is not justified when the actions of the police have created the exigent circumstances. We agree.

As in Levine, we are bound by the Florida Supreme Court’s opinion Hornblower v. State, 351 So. 2d 716, 718-19 (Fla. 1977), which held that “probable cause itself is not sufficient to support a warrantless search” of a constitutionally protected area like a dwelling or motel room; that “if time to get a warrant exists, the enforcement agency must use that time to obtain the warrant,” absent an exception to the warrant requirement; and that “[l]aw enforcement officers may not sit and wait as here (when they could be seeking a warrant), then utilize their self-imposed delay to create exigent circumstances.” See also, Lee v. State, 856 So. 2d 1133 (Fla. 1st DCA 2003).

The order denying the motion to suppress is REVERSED and the case is REMANDED to the trial court for further proceedings consistent with this opinion.

DAVIS and ROBERTS, JJ., CONCUR.

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TONY PUREL HOWARD, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-1332. District Court of Appeal of Florida, Second District. Opinion filed August 21, 2009.Appeal from the Circuit Court for Lee County, Mark A. Steinbeck and James R. Thompson, Judges.

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

A jury convicted Tony Howard of burglary of a structure, petit theft, and resisting a law enforcement officer without violence. In this appeal he contends the evidence was insufficient to support the burglary and petit theft convictions. We disagree with his argument concerning the burglary conviction, and we affirm it without further discussion. We do, however, conclude that the evidence was insufficient to support a conviction for petit theft. Therefore, we reverse that conviction and direct the trial court to discharge Howard on that offense.

The charges in this case arose from a break-in at a Florida Power & Light substation. A law enforcement officer saw Howard inside the fenced perimeter of the substation. Howard ran away from the officer and, as he did, dropped a black case on the ground. The case contained a pair of binoculars.

Howard’s possession of the binoculars was the basis of the petit theft charge. In order to prove a defendant guilty of that crime, the State is required to prove that he knowingly obtained or used, or endeavored to obtain or to use, “the property of another.” § 812.014(1), Fla. Stat. (2005) (emphasis supplied). Nelson v. State, 453 So. 2d 473, 475 (Fla. 2d DCA 1984); Jenkins v. State, 898 So. 2d 1134, 1135 (Fla. 1st DCA 2005).

Here the State failed to prove that the binoculars belonged to someone other than the defendant. The only evidence about the ownership of the binoculars came from an FPL engineer. He testified that FPL furnished binoculars to its employees but that the company did not tag or otherwise mark them as FPL property. While the brand of binoculars Howard dropped was one that the company issued, it was not the only brand the company used. No employees reported that their binoculars were missing or testified to that fact at trial. The engineer conceded that he could not establish who owned the binoculars.

Accordingly, we reverse Howard’s petit theft conviction. We remand to the trial court to discharge Howard on that charge and to strike the sentence imposed for it.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and KHOUZAM, JJ., Concur.

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JEAN ATIS, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-5924. District Court of Appeal of Florida, Second District. Opinion filed August 21, 2009.Appeal from the Circuit Court for Hillsborough County, Joelle Ann Ober, Acting Circuit Judge.

James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Jean Atis appeals his judgments and sentences for attempted carjacking and attempted robbery. He maintains that the State improperly questioned him about his prior record during cross-examination. Although the portion of cross-examination dealing with Mr. Atis’ prior record was poorly handled, we conclude that any error was harmless.

On July 5, 2007, shortly after midnight, a deputy sheriff observed two men fighting next to a taxi van that was stopped in the eastbound lanes of Fletcher Avenue. The deputy activated her emergency lights and broke up the fight. The deputy determined that the fight involved the taxi driver and a passenger. Further investigation revealed Mr. Atis lying on the floor of the rear seat of the taxi.

The taxi driver testified that he was hired by the two men in Ybor City. He had never seen the men before that evening. The men explained that they were leaving Ybor City because Mr. Atis had had too much to drink. Mr. Atis got in the back seat of the cab and lay down, and his friend got in the front seat.

During the drive, the passengers changed their instructions and wanted to go to a different location. Mr. Atis then put his hand around the driver’s neck from the back seat and ordered the driver to give him everything he had. The driver did not immediately obey this instruction. Mr. Atis threatened to shoot the driver and produced a handgun.

The driver observed that the gun appeared to be broken.¹ He took the gun away and began to struggle with the men. He claimed that Mr. Atis jumped into the front seat and tried to take control of the taxi. They struggled for a long time. The man who had been in the front seat exited the taxi. When he saw the deputy’s car, he shouted, “police,” and Mr. Atis hid in the back seat of the taxi.

At trial, Mr. Atis chose to testify. He explained that the two men did hire the taxi in Ybor City. He was intoxicated and lay down on the backseat of the taxi to sleep. The next thing he remembered was waking up when the deputy was at the scene. He remembered no fight, knew nothing about the plastic handgun, and only went to the floor of the taxi when the deputy ordered him to get down on the floor and crawl out of the van. Undoubtedly anticipating the State’s cross-examination, Mr. Atis’ attorney asked him if he had ever been convicted of a felony, and he admitted that he had five prior felonies.

During cross-examination, the assistant state attorney returned to the issue of Mr. Atis’ prior record. The transcript reflects the following:

Q. How many times have you been convicted of a felony?

A. Five times.

Q. And how many were for crimes of dishonesty?

[Defense]: Judge, I’m going to object. Can we approach?

The Court: Sure.

(A BENCH CONFERENCE WAS HELD, AS FOLLOWS:)

[State]: That’s proper.

[Defense]: I’m going to object and say I have already asked my client, have you ever been convicted of a felony and how many times. He said five. This is improper for them to go back over it again.

[State]: No, it’s —

[Defense]: I reviewed the fact that my client had five felony convictions with him and I reviewed his convictions.

The Court: I know, but it’s a proper question on cross examination. So, if that’s the basis of your objection I’ll overrule it. But, I don’t know about exactly the way you worded it. I think it’s supposed to be felony or misdemeanor crimes involving dishonesty or moral turpitude is the full question you are supposed to ask so — [State]: I can ask or how many misdemeanors of dishonesty. But he’s going to say none and then we’re going to be back to the same position, since it’s a felony of dishonesty so —

[Defense]: Well, I don’t know what you want us to do.

The Court: Well, the question is supposed to be asked all in one sentence so —

[Defense]: That’s how I would ask it be asked then.

The Court: Yeah.

[State]: Okay.

(THE BENCH CONFERENCE CONCLUDED.)

Q. Mr. Atis, have you ever been convicted of a felony or misdemeanor crime involving dishonesty?

A. I don’t understand your question.

Q. How many — have you ever been convicted of a felony?

A. Yes.

Q. How many times?

A. Five times.

Q. Have you ever been convicted of any crime, including misdemeanor, of dishonesty?

[Defense]: Same objection, Judge.

The Court: Overruled.

Q. You can answer that?

A. Um, I still don’t understand your question. Q. Were any of these crimes for anything that is dishonest in nature?

A. I don’t understand.

Q. Okay. Have you ever been convicted of a any [sic] type of crime involving dishonesty, whether it’s a worthless check, a theft charge?

[Defense]: Objection, improper.

The Court: Overruled.

Q. Anything involving any type of dishonest character?

A. Yes.

Q. Okay. How many times?

A. Once.

Obviously, this portion of the transcript is not a model of proper cross-examination and the trial court could have addressed the assistant state attorney’s inexperience and confusion more effectively. The assistant state attorney’s reference to a “felony of dishonesty” explains the source of the confusion during this botched cross-examination.

Mr. Atis had a prior record consisting entirely of felonies. He had convictions for carrying a concealed weapon, felon in possession of a firearm, possession of cocaine, robbery, and uttering a forged instrument. It is apparent that the assistant state attorney believed that one of these felonies, presumably uttering a forged instrument, was a “felony of dishonesty” and that the other felonies were not crimes of dishonesty. Thus, she wished to first establish the number of overall felonies for which Mr. Atis had convictions and then establish how many of these felonies were “crimes of dishonesty.” As explained below, the rule of evidence could be interpreted to permit such a line of questioning, but established procedures do not distinguish between felonies that are or are not crimes of dishonesty. The “crimes of dishonesty” category is used to allow cross-examination about the commission of crimes that typically are misdemeanors.

Section 90.610(1), Florida Statutes (2007), provides:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment. . . .

Under Florida law, all crimes “punishable by death or imprisonment in excess of 1 year” are classified as felonies. See § 775.08(1), Fla. Stat. (2007). Although it is plausible that the phrase “or if the crime involved dishonesty or a false statement regardless of the punishment” could be interpreted to include felonies already described in the preceding phrase, it is well established that these two phrases describe two distinct groups of offenses that do not overlap. As Justice Pariente explained when she was a member of the Fourth District, “The effect of the subsection, as amended by the legislature and as adopted by the supreme court, is to allow impeachment for all felonies, but restrict impeachment to only those misdemeanors involving dishonesty or false statement.” Bobb v. State, 647 So. 2d 881, 884 (Fla. 4th DCA 1994). As such, when a witness has been convicted of a felony, the other party may not inquire further into whether the felony involved dishonesty or false statement because doing so “would have the impermissible and unintended effect of elevating certain felonies over others.” Id.

In Florida Evidence, Professor Ehrhardt suggests the following line of questions to comply with this rule of procedure: Q. “Have you ever been convicted of a felony?”

A. “Yes.”

Q. “How many times?” or, counsel may ask, if applicable,

Q. “Have you ever been convicted of a crime involving dishonesty or false statement?”

A. “Yes.”

Q. “How many times?”

Charles W. Ehrhardt, Florida Evidence § 610.6, at 590-91 (2009 ed).

At least when none of the offenses were committed in another state, the more specific line of questions suggested by Professors Eleazer and Weissenberger may be more precise and prevent some confusion about whether crimes of dishonesty involve felonies or misdemeanors:

Counsel to witness (cross-examination): Have you ever been convicted of a felony?

Witness: Yes.

Counsel: How many times?

Witness: Two.

Counsel: Have you ever been convicted of a misdemeanor involving dishonesty or false statement?

Witness: Yes.

Counsel: How many times?

Witness: One.

William R. Eleazer & Glen Weissenberger, Florida Evidence- 2004 Courtroom Manual 404 (LexisNexis 2004).

In this case, it is noteworthy that the error could have been better preserved. In front of the jury, Mr. Atis explained three times that he did not understand the question. In the end, when the assistant state attorney asked whether he had ever been convicted of “any type of crime,” the objection was merely that the question was “improper.” It is obvious that the assistant state attorney knew that she had no evidence of a prior misdemeanor that was a crime of dishonesty. If defense counsel or the court had explained the limits of this rule of evidence to the assistant state attorney, she would not have persisted in this questioning. Throughout the questioning, the assistant state attorney clearly believed in good faith that she could ask the defendant about a “felony of dishonesty.”

During closing argument, both defense counsel and the assistant state attorney discussed Mr. Atis’ prior record. Without objection, the assistant state attorney argued: “Mr. Atis got up here, found out [that he's] been convicted of five felonies including one for dishonesty. That’s something that you all can consider in your deliberations. That’s something that’s important.”

We conclude, however, that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). The clumsy manner in which these questions were asked did not result in any detailed description of his prior offenses. The assistant state attorney’s prompt that the offense could be an offense like a “worthless check or a theft charge” is not a description of his prior record and did not suggest to the jury that he had an exceptionally bad prior record. At worst, it repeated Mr. Atis’ admission that he had committed five felonies on more occasions than necessary. Interestingly, Mr. Atis apparently reached the same conclusion as the assistant state attorney that his felony conviction for uttering a forged instrument was his one felony of dishonesty. Although the assistant state attorney did mention the “felony of dishonesty” in closing argument, there was no confusion that the total number of prior offenses was five and not more. In the overall context of this trial, we conclude that the error is harmless.

Affirmed.

LaROSE and KHOUZAM, JJ., Concur.

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MARTIN BYERS, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-3125. District Court of Appeal of Florida, Second District. Opinion filed August 21, 2009.Appeal from the Circuit Court for Polk County, Donald G. Jacobsen, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.

KELLY, Judge.

Martin Byers appeals his judgments and sentences for trafficking in methamphetamine and carrying a concealed weapon. We reverse his judgment and sentence for trafficking because we agree with Byers’ argument that the trial court erred when it denied his motion for judgment of acquittal on that charge. In all other respects, we affirm.

The State’s evidence established that as part of an investigation, police officers responded to a motel where they observed Byers standing outside one of the rooms. After asking Byers to identify himself, the officers asked him whether he had any weapons. When Byers admitted that he had two sets of brass knuckles in his pockets, the officers searched him and then arrested him for carrying a concealed weapon. The officers then entered the motel room and found a second man, Roberto Gutierrez. They arrested Gutierrez after they observed smoke and saw a “bong” by the sink when he came out of the bathroom.

After arresting Byers and Gutierrez, the officers searched the motel room and found a set of keys on the dresser. When officers asked who the keys belonged to, Byers said they were his, and according to the officers, he consented to a search of his vehicle. Although Byers told officers the keys went to a white truck, witnesses told the officers that Byers and Gutierrez had driven to the motel in a light-colored Chevy Malibu. The officers tried the keys on the Malibu, and they were able to unlock it. A search of the car yielded a black bag on the passenger side floorboard containing 52.7 grams of methamphetamine, baggies, and a BB gun.¹ Byers admitted to officers that he knew that there was a large amount of methamphetamine in the car and that Gutierrez intended to sell it. He stated that he had driven Gutierrez to the motel in exchange for a small amount of the drug.

On appeal, Byers contends that the trial court erred in denying his motion for judgment of acquittal on the trafficking charge because the evidence did not establish that he possessed the methamphetamine in the backpack. Possession may be either actual or constructive. Actual possession exists where the accused has knowing physical possession of a controlled substance. Gartrell v. State, 626 So. 2d 1364, 1366 (Fla. 1993). The State does not contend Byers was in actual physical possession of the methamphetamine, but rather contends he possessed it constructively. Constructive possession exists where it is shown that the accused knows of the presence of the contraband and has the ability to maintain control over it or reduce it to his possession, even though he does not have it in his physical possession. State v. Snyder, 635 So. 2d 1057, 1058 (Fla. 2d DCA 1994); Ras v. State, 610 So. 2d 24, 25 (Fla. 2d DCA 1992); Spataro v. State, 179 So. 2d 873, 877 (Fla. 2d DCA 1965).

When a defendant has been in exclusive possession of the premises where contraband is found, knowledge and control can be inferred. Spataro, 179 So. 2d at 877. However, when the premises have not been in the exclusive possession of the defendant, as is the case here, knowledge and control cannot be inferred unless there are incriminating statements or other circumstances that would support such an inference. Id.; see also Santiago v. State, 991 So. 2d 439, 442 (Fla. 2d DCA 2008) (“Generally, independent proof can be established by the admission into evidence of a pretrial statement made by an accused, by witness testimony, or by scientific evidence.”); Wagner v. State, 950 So. 2d 511, 513 (Fla. 2d DCA 2007) (“When . . . contraband is found in a location that was accessible to more than one person, a defendant’s knowledge of its presence and ability to exercise dominion and control will not be inferred; these elements must be established by independent proof.”). Byers admits that he knew about the methamphetamine; the question is whether he had dominion and control over it.

Whether an individual had dominion and control is generally a fact issue for the jury; however, a judgment of acquittal is proper when the State does not adduce evidence from which dominion and control can be inferred. Issac v. State, 730 So. 2d 757, 758 (Fla. 2d DCA 1999). Further, “[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So. 2d 187, 188 (Fla. 1989). Here, the evidence established that Byers knew the methamphetamine was in the car he drove to the motel, that he knew Gutierrez intended to sell the methamphetamine, and that he agreed to drive Gutierrez to the motel in exchange for a small amount of the drug. Even if proof of these circumstances permitted an inference that Byers had control over the methamphetamine, it does not exclude Byers’ reasonable hypothesis of innocence that the drugs in the backpack belonged exclusively to Gutierrez. See, e.g., Lester v. State, 891 So. 2d 1219, 1221 (Fla. 2d DCA 2005); Snyder, 635 So. 2d at 1057. Because the State did not meet its burden to establish Byers’ dominion and control over the drugs, and thus did not establish his constructive possession, we reverse Byers’ conviction and sentence for trafficking in methamphetamine.

Reversed in part; affirmed in part.

SILBERMAN and WALLACE, JJ., Concur.

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EDWIN MURPHY, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 5D08-2603. District Court of Appeal of Florida, Fifth District. Opinion filed August 21, 2009.Appeal from the Circuit Court for Orange County, Tim Shea, Judge.

James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Edwin Murphy, Malone, Pro Se.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, J.

In this Anders¹ appeal, Edwin Murphy’s pro se brief raises one meritorious issue. Following a trial, Murphy was convicted of attempted sexual battery and lewd or lascivious molestation. At his sentencing hearing, Murphy sought dismissal of one of the two convictions on double jeopardy grounds. The trial judge, while conceding that a double jeopardy issue might exist, declined to rule on Murphy’s motion. Instead, the court adjudicated Murphy guilty of lewd or lascivious molestation and sentenced him to prison, while taking no action on the attempted sexual battery charge. The State concedes this was error.

A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the defendant not guilty due to a lack of sufficient evidence to convict, double jeopardy, or any other legally sufficient reason. The trial court may not simply refuse to act. State v. Houghtailing, 704 So. 2d 163, 164 (Fla. 5th DCA 1997). Accordingly, we remand this matter to the trial court for the purpose of rendering an order with regard to the attempted sexual battery charge. If it is appropriate to adjudicate Murphy not guilty of that charge, it may do so. If not, it must adjudicate and sentence him for that crime.

REVERSED AND REMANDED.

COHEN, J., concurs.

GRIFFIN, J., concurs and concurs specially, with opinion.

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Notes:

GRIFFIN, J., concurring and concurring specially.

The trial court appeared to be uncertain about the double jeopardy issue in this case, which was understandable given the uncertain state of the law. Since this case was decided, however, the Florida Supreme Court issued its decision State v. Meshell, 2 So. 3d 132 (Fla. 2009), which may inform the trial court’s decision on remand.

In this case, count one charged capital sexual battery, alleging that defendant’s penis had union with the victim’s vagina. Defendant was found guilty of attempted sexual battery, which means that defendant did some act in furtherance of the charged offense but failed to complete it. See § 777.04(1), Fla. Stat. (2008). Count three, which charged lewd or lascivious molestation of the same victim, alleged that defendant intentionally touched her genitals or the clothing covering her genitals. Unlike count one, count three did not allege that defendant used his penis, but alleged a lewd touching.

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JULIE L. LIMBAUGH, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 5D08-3838. District Court of Appeal of Florida, Fifth District. Opinion filed August 21, 2009.Appeal from the Circuit Court for Marion County, Hale R. Stancil, Judge.

James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

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

MONACO, C.J.

The appellant, Julie Limbaugh, appeals the trial court’s order finding that she violated her probationary placement, revoking probation, and placing her on an additional 10 years of probation. Because there is an absence of evidence and of a judicial finding that the probationer had the ability to pay, we reverse. An extensive exposition of the facts is unnecessary for an understanding of our disposition of this case. Suffice it to say that Ms. Limbaugh’s probation was conditioned, among other things, upon her payment of a monthly restitution amount, as well as the cost of her supervision, court costs and fines. At the time of her hearing for violation of probation she was behind on both species of payments, and was violated solely for failure to make those payments.

The evidence produced by the State reflected that while she was employed, Ms. Limbaugh consistently made the required payments. After she got pregnant, however, she developed a condition known as placenta previa, and was compelled to relinquish her job. She thereafter made no further payments. Other than the payment issue, Ms. Limbaugh was doing everything else that was required on probation.

There was virtually no evidence adduced by the State concerning Ms. Limbaugh’s ability to pay her costs and restitution. Despite this void in the evidence, the trial court found that she violated her probation, and placed her on an additional term of ten years probation.

We review a trial court’s determination that a defendant willfully and substantially violated his or her probation using an abuse of discretion standard. Garity v. State, 970 So. 2d 500, 502 (Fla. 5th DCA 2007). The State has the burden to prove by a preponderance of the evidence that the defendant violated a condition of probation willfully and substantially. Ballien v. State, 942 So. 2d 981, 983 (Fla. 5th DCA 2006) (citing Stewart v. State, 926 So. 2d 413 (Fla. 1st DCA 2006)); Lawson v. State, 941 So. 2d 485, 488 (Fla. 5th DCA), approved, 969 So. 2d 222 (Fla. 2007). It is well-established that where the violation alleged by the State is a failure to pay costs or restitution, there must be evidence presented, and a finding of the trial court that the probationer had the ability to pay, but willfully did not do so. Shepard v. State, 939 So. 2d 311, 314 (Fla. 4th DCA 2006) (citing Warren v. State, 924 So. 2d 979, 980-81 (Fla. 2d DCA 2006)); Rogan v. State, 934 So. 2d 593, 672-73 (Fla. 5th DCA 2006); Osta v. State, 880 So. 2d 804 (Fla. 5th DCA), dismissed, 886 So. 2d 227 (Fla. 2004). Here, there is simply no evidence to underpin the violation.

Accordingly, we reverse the finding of violation of probation, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.

Courtesy of David Edelstein

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