Florida Criminal Law Opinions

Xzavius Edwards, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-1476.

District Court of Appeal of Florida, Third District.

Opinion filed September 30, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Bertila Soto, Judge, Lower Tribunal No. 07-12443.

Robert I. Barrar, for appellant.

Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.

Before GERSTEN, and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

We find no reversible error in any of the points raised on this appeal from convictions of assault and aggravated assault, as lesser included offenses of

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aggravated assault on a law enforcement officer with a firearm and attempted first degree murder, respectively.

While a portion of the prosecutor’s final argument may have been questionable under the “gotcha” theory stated in Garcia v. State, 564 So. 2d 124 (Fla. 1990), Romero v. State, 901 So. 2d 260 (Fla. 4th DCA 2005), and Hernandez v. Home Depot U.S.A., Inc., 695 So. 2d 484 (Fla. 3d DCA 1997),¹ we hold both that (1) because this argument was not raised in support of his motion for mistrial, it may not be successfully pursued on appeal,² see Craig v. State, 510 So. 2d 857, 864 (Fla. 1987), and (2) the comment was in any case not so serious as to require granting a mistrial below, or a new trial here. See Williams v. State, 744 So. 2d 1103, 1107-08 (Fla. 3d DCA 1999) (“`[O]therwise proper trials are not to be reversed merely because an . . . analysis of a single statement reveals a defect in rhetoric. When, as in this case, it clearly appears that the defendant’s substantial rights were not affected, it is our duty to affirm. We do.’”) quoting Henry v. State, 290 So. 2d 73, 75 (Fla. 2d DCA 1974)), review denied, 753 So. 2d 567 (Fla. 2000).

Affirmed.

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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COTY JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2792.

District Court of Appeal of Florida, Fourth District.

September 30, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Stanton S. Kaplan, Judge, L.T. Case No. 06-18365CF10A.

Carey Haughwout, Public Defender, and James W. Mclntire, 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.

In this Anders¹ appeal, Coty Johnson challenges the revocation of his probation and the resulting sentence for one count of possession of cocaine and two counts of resisting without violence. Pursuant to In re Anders Briefs, 58,1 So. 2d 149 (Fla. 1991), the public defender asserts that no meritorious issues exist except a minor sentencing error. After a thorough review of the record, we agree.

The trial court properly revoked Johnson’s probation on the basis of new law violations and imposed a legal sentence of thirty months in prison on count one (possession of cocaine). However, as defense counsel points out, the trial court improperly revoked Johnson’s probation and imposed concurrent one-year sentences for counts two and three (resisting without violence). This was improper because Johnson’s one-year probation term had expired for both counts of resisting without violence before the probation affidavit and warrant were filed, and the court lacked jurisdiction over those offenses. See McAvoy v. State, 760 So. 2d 1120 (Fla. 4th DCA 2000). The state concedes that the trial court lacked jurisdiction over the misdemeanor. Additionally, he had already served the maximum sentence allowed for the offense of resisting without violence, which is one year. §§ 843.02, 775.082(4)(a), Fla. Stat. (2006).

Because correcting this minor sentencing error will not alter the length of Johnson’s imprisonment, we affirm the revocation of probation

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and sentence as it relates to the cocaine charge. However, we reverse and remand the sentence as it relates to the resisting arrest without violence charges for the trial court to vacate the judgment and sentence it entered on July 1, 2008, on counts two and three. See Sutton v. State, 855 So. 2d 673, 674 (Fla. 2d DCA 2003).

Affirmed in part; reversed in part.

STEVENSON, MAY and LEVINE, JJ., concur.

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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KEITH WASSERSTROM, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-720

District Court of Appeal of Florida, Fourth District.

September 30, 2009

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel Lazarus, Judge; L.T. Case No. 06-17964 CF10.

Sheryl J. Lowenthal and Milton Hirsch, Miami, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

This appeal presents the primary question of whether there was sufficient evidence to sustain convictions for two counts of official misconduct of a city commissioner for filing falsified official conflict forms.

The defendant, Keith Wasserstrom, a former Commissioner for the City of Hollywood, was charged with five counts. The trial court granted a judgment of acquittal for the one count of unlawful compensation, and the jury found him not guilty of two counts of official misconduct emanating from the forms filed by the Mayor of Hollywood, Mara Giulianti. The defendant was found guilty of official misconduct for two disclosure forms he filed on March 23, 2004, and July 7, 2004, respectively.

Wasserstrom’s uncle, Arnold Goldman, entered into a contract to sell a sewage system, called Bio-Native Technologies, to local governments. Goldman’s contract stated that he would receive two dollars per ton of sewage that was treated under contracts he procured. Wasserstrom entered into a separate contract with Goldman to provide legal services to Goldman’s company, Normandy Group, in return for 50% of the money that Goldman received for contracts procured in localities other than the City of Hollywood.

The City of Hollywood published a request for proposal (RFP), in which another company was ranked first and Bio-Native was ranked second. Wasserstrom, along with Mayor Giulianti, did not vote in this

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proposal and filed the required Memorandum of Voting Conflict, Form 8B. However, Normandy Group actively promoted the Bio-Native system to the City of Hollywood, and Wasserstrom publicly advocated for Bio-Native with city administrators and the Hollywood City Commission.

On March 23, 2004, Wasserstrom filed a Form 8B which stated as follows:

My lawfirm [sic] represents a sales representative of one of the RFP responders, Schwing Bioset, on matters other than Bioset’s responce [sic] to the subject RFP. The lawfirm [sic] represents the sales representative, not Bioset, and the relationship accordingly does not constitute a prohibitted [sic] conflict of doing business with one’s agency or a conflicting contractual relationship. Fla. Stat. s. 112.313(3),(7). Furthermore, the lawfirm [sic] does not represent the sales representative in connection with the RFP response, and accordingly, award of the contract to Bioset would not inure to the special private gain of the [sic]. Fla. Stat. s. 112.3143. However, I believe that the lawfirm’s [sic] representation of the sales representative in other matters appears to be a possible conflict of interest. Fla. Stat. s. 286.012.

On July 7, 2004, the Wasserstrom filed another Form 8B, which stated the following:

My lawfirm [sic] represents a company (Normandy Group) which as [sic] a contractual relationship with another company (BioNative Technologies), which in turn has a contractual relationship with one of the respondants [sic] to the RFP (Schwing-Bioset), on matters other than Bioset’s response to the subject RFP. The lawfirm [sic] represents the Normandy Group not Bioset, and the relationship accordingly does not constitute a prohibited conflict of doing business with one’s agency or a conflicting contractual relationship. Fla. Stat. s. 112.313(3), (7). Furthermore, the lawfirm [sic] does not represent any of these entities in connection with the RFP response, and accordingly, award of the contract to Bioset would not inure to the special private gain of the lawfirm [sic]. Fla. Stat. s. 112.3143. However, on a strictly voluntary basis (AEO 90-55) [sic], I chose to abstain from voting. Fla. Stat. s. 286.012.

At trial, Goldman testified that Wasserstrom would earn money only if the system was sold to other communities. Goldman believed the

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utilization of the system by the City of Hollywood would not create any direct benefit to Wasserstrom but would help convince other communities in Broward County to contract for the Bio-Native system. The strategy was that if Goldman could sell the system to Hollywood, other cities would follow suit. Wasserstrom would then make money from the contracts with other localities, such as Fort Lauderdale, Pembroke Pines, or Coral Springs. Goldman also said that Wasserstrom did not want to put any “more” pressure on the City of Hollywood’s utility director to purchase Bio-Native. In an e-mail dated September 2004, Wasserstrom indicated he believed his law firm and his uncle’s company should be paid $50,000 for work already done.

Analysis Judgment of Acquittal

We review a motion for judgment of acquittal de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). On a defendant’s motion for judgment of acquittal, the defendant admits all facts introduced into evidence as true, and the court views all inferences in the light most favorable to the State. Maglio v. State, 918 So. 2d 369, 374 (Fla. 4th DCA 2005). If a rational trier of fact could find the existence of the elements of the charged crime beyond a reasonable doubt, “substantial” evidence exists to sustain the conviction, and a judgment of acquittal is not appropriate. Id.; Aurigemma v. State, 801 So. 2d 982, 986 (Fla. 4th DCA 2001). The jury is charged with weighing the credibility of evidence, so the fact that the evidence is contradictory is not grounds for a judgment of acquittal. Williams v. State, 967 So. 2d 735, 755 (Fla. 2007). A motion for judgment of acquittal should only be granted where “there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law.” Mosley v. State, 34 Fla. L. Weekly S468, S473 (Fla. July 16, 2009) (quoting Williams, 967 So. 2d at 755).

Where the “State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence.” Pagan, 830 So. 2d at 803. In a case where the State presents both direct and circumstantial evidence, however, the court does not apply the “special standard of review applicable to circumstantial evidence cases.” Mosley, 34 Fla. L. Weekly at S473 (citing Pagan, 830 So. 2d at 803).

Wasserstrom was convicted of official misconduct in violation of section 838.022(1)(a), Florida Statutes (2004), which makes it “unlawful

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for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another,” to “[f]alsify, or cause another person to falsify, any official record or official document.” Thus, to establish a prima facie case of official misconduct, the State had to present evidence sufficient to establish that Wasserstrom: (1) was a public servant, (2) acted with corrupt¹ intent, (3) acted to obtain a benefit² for any person, and (4) falsified an official record or document.

On appeal, Wasserstrom argues that the two disclaimers that the “lawfirm [sic] does not represent the sales representative in connection with the RFP response, and accordingly, award of the contract to Bioset would not inure to the special private gain of the lawfirm” [sic] are true and that the State failed to present evidence inconsistent with this “reasonable hypothesis of innocence.”

The State introduced ample evidence of each element of official misconduct such that a reasonable trier of fact could sustain Wasserstrom’s conviction.³ The falsity of the disclaimer and the intended benefit elements of the State’s case are interrelated. At trial, it was undisputed that Wasserstrom would have benefitted if other jurisdictions contracted to use the Bio-Native system. Goldman testified that securing the City of Hollywood contract would help convince other local governments to contract for the system, and Wasserstrom would be compensated when other jurisdictions accepted those contracts. Because Wasserstrom would have benefitted from other jurisdictions’ contracts for Bio-Native, and because the Hollywood contract would pave the way for such contracts, it was a disputed issue of fact as to whether a benefit would “inure to the special private gain” of Wasserstrom and his law firm. Moreover, the fact that the jury asked for the definition of “inure” indicates that it was focused on the truth or falsity of the disclaimer. The State was required to prove only that Wasserstrom misrepresented the underlying facts on the form. See State v. Russ, 778 So. 2d 414, 416 (Fla. 1st DCA 2001).

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Additionally, the State presented evidence that Wasserstrom believed he was entitled to $50,000 in remuneration for services rendered to Bioset after the Hollywood contract had been executed. While this money could have been for services rendered regarding contracts in other jurisdictions, the record was not clear and the determination of the services for which Wasserstrom sought payment was properly presented to the jury. The jury could reasonably have concluded that Wasserstrom sought payment in part for his work on the Hollywood contract. This evidence is sufficient to establish a prima facie claim of both the elements of intended benefit and false statement.

With respect to corrupt intent, the State presented circumstantial evidence from which the jury could have found that Wasserstrom intended to receive $50,000 from his work related to the Hollywood contract. Additionally, the jury could infer that Wasserstrom invited his uncle, who had no experience in the water treatment business, to sign a contract with Bio-Native for the purpose of hiding Wasserstrom’s own relationship with Bio-Native. Finally, the State presented evidence from which the jury could conclude that Wasserstrom inappropriately pressured the utility director to choose Bio-Native over the top-scoring bid in response to the RFP. All of this evidence could give rise to an inference that Wasserstrom drafted his disclosure forms to hide the full extent of his involvement with Bio-Native and the benefit he would eventually receive.

Accordingly, the State presented a prima facie case sufficient to sustain the charge of official misconduct, and the trial court correctly denied Wasserstrom’s motion for judgment of acquittal.

Remaining Issues

With respect to his argument that the verdicts are inconsistent, Wasserstrom argues that his acquittals for unlawful compensation and official misconduct as to two other disclosure forms are inconsistent with his conviction on the remaining two counts of official misconduct. Inconsistent verdicts, however, are permissible. See Brown v. State, 959 So. 2d 218, 220-21 (Fla. 2007). The sole exception to this rule is where “an acquittal on one count negates a necessary element for conviction on another count.” Id. at 221 (quoting Gonzalez v. State, 440 So. 2d 514, 515 (Fla. 4th DCA 1983)). For instance, an acquittal on a felony charge can negate the essential felony element of felony murder. Brown, 959 So. 2d at 221.

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To prove official misconduct, the State was not required to demonstrate that Wasserstrom was compensated unlawfully for the Hollywood contract. Instead, the State was only required to show that Wasserstrom had the intent that a benefit would accrue to “anyone” including (but not limited to) Wasserstrom or his uncle. The fact that Wasserstrom was acquitted of receiving unlawful compensation himself does not negate the fact that he intended a benefit to accrue to “anyone.” Likewise, the fact that Wasserstrom was acquitted of causing Mayor Giulianti to falsify her disclosure forms has no bearing on and is disconnected from the jury’s conclusion that Wasserstrom knowingly falsified his own disclosure forms. As such, we find that the verdicts were consistent and affirm on this ground.

After reviewing the record of the trial court, we conclude that the State presented sufficient evidence for a jury to convict Wasserstrom of official misconduct, and we affirm.⁴

Affirmed.

DAMOORGIAN, GERBER and LEVINE, JJ., concur.

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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HENRY BATTLE, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2890.

District Court of Appeal of Florida, Fourth District.

September 30, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Paul L. Backman, Judge, L.T. Case No. 06-12690 CF10A.

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

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant, Henry Battle, timely appeals his conviction and sentence. This court has jurisdiction. Fla. R. App. P. 9.140(b)(1)(A).

Battle was charged by information with burglary of a dwelling, theft and battery on a law enforcement officer. A detective and investigating officers, as well as two witnesses, testified at the jury trial in April 2007. The detective testified that he had observed Battle running along a sidewalk with socks on his hands, ducking and hiding between parked cars. This detective and the officer accompanying him found Battle’s behavior highly suspicious. The detective followed Battle in the marked police unit while the officer exited the car and chased Battle. After some physical struggle, the officer was able to tackle Battle to the ground and handcuff him.

Battle told the detective and the officer that his name was Larry Jones. They thus wrote the name “Larry Jones” on the evidence bag containing the socks Battle wore on his hands.

As the detective and the officer detained Battle, four Hispanic men ran toward them. The detective discovered, after speaking with the men, that someone took money from their home. A search of Battle’s person revealed he carried the exact amount and denomination of money that the witnesses claimed was missing.

Because the Hispanic men did not speak more than broken English, a Spanish-speaking officer was called to the scene to help the witnesses

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make an identification of Battle. The witnesses identified Battle as the intruder that they saw inside their home minutes before their conversation with the police. At the time of trial, two of the witnesses had returned to Mexico.

At trial, the detective and one of the officers testified that the unavailable witnesses had told them the exact amount and denomination of money the intruder stole. In addition, on redirect examination, the prosecutor asked the detective how sure he was that Battle committed the burglary. After reciting the evidence collected, the detective answered, “Definitely, one hundred percent, [Battle] is the guy that committed the burglary.”

At the conclusion of the trial, Battle was convicted of burglary of a dwelling, theft and simple battery, a lesser included offense of battery on a law enforcement officer. The trial court sentenced Battle to thirty-years imprisonment on the burglary count and time served on the theft and simple battery counts.

Battle first argues on appeal that any testimony by law enforcement officials regarding the claims made by the two unavailable witnesses is inadmissible hearsay and a violation of the Confrontation Clause. Battle emphasizes that the detective and the officer were permitted to testify that the unavailable witnesses had told them the precise amount of money they were missing, as well as the exact denomination. This hearsay testimony was the foundation of the State’s identification case.

We agree that the trial court abused its discretion in admitting testimony regarding the out-of-court statements of the unavailable witnesses. We reverse as to the admission of evidence regarding the statements of these declarants. Though a trial court has wide discretion concerning the admission of evidence, the court’s discretion is limited by the rules of evidence. E.g., McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007). The hearsay evidence was inadmissible. The State should have taken steps to preserve the testimony of these two men before they returned to Mexico.

Battle also argues that because he was unable to cross-examine these witnesses, the admission of their statements violated the Confrontation Clause. E.g., Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); Crawford v. Washington, 541 U.S. 36, 50-53, 124 St.Ct. 1354, 158 L.E.2d 177 (2004) (holding admission of “testimonial” statements by unavailable declarants a defendant has not had the opportunity to cross-examine violates the Confrontation Clause

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of the Sixth Amendment). Here, the witnesses’ statements were made between fifteen and twenty minutes after the burglary while Battle was in police custody, and so were not solicited by the police in attempts to respond to an ongoing emergency. See Davis, 547 U.S. at 822 (“[Statements] are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”); Crawford, 541 U.S. at 50-53. The admission of these testimonial statements violated Battle’s constitutional rights.

Secondly, Battle argues that evidence regarding his alias is inadmissible as other crimes evidence offered only to show his bad character or propensity to commit crimes. See § 90.404(2)(a), Fla. Stat. (2007). Specifically, Battle challenges the State’s reference to the false name Larry Jones that Battle provided to the police upon his arrest. The detective and officer wrote Larry Jones on the evidence bag containing the socks that Battle wore on his hands. Evidence of prior crimes or bad acts is admissible to prove facts other then character or propensity, such as identity. Id. Here, the trial court’s admission of testimony regarding Battle’s alias was not in error. The State had to explain to the jury why a name other than Henry Battle was on the evidence bag. The information regarding Battle’s alias was integral to the facts of the arrest and explained what would otherwise be inexplicable. Thus, the false name testimony was not inadmissible evidence of a collateral crime or bad act, but intertwined with the present case.

Battle thirdly objects to admission of the detective’s opinion testimony. During the trial, the detective testified that “[d]efinitely, one hundred percent, [Battle] is the guy that committed the burglary.” Battle argues that this statement was improper opinion testimony, which tainted the jury and requires reversal.

Generally, “a witness’s opinion as to the guilt or innocence of the accused is not admissible.” E.g., Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000). Florida statutory law excludes such opinion testimony, regardless of its relevance, “on the grounds that its probative value is substantially outweighed by unfair prejudice to the defendant.” Id.; see § 90.403, Fla. Stat. (2007). The danger of prejudice increases when an investigating officer is permitted to offer an opinion as to the defendant’s guilt. Martinez, 761 So. 2d at 1080. “In this situation, an opinion about the ultimate issue of guilt could convey the impression that evidence not presented to the jury, but known to the investigating officer, supports the charges against the defendant.” Id.

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Though the issue is not preserved for appeal, if defense counsel properly had objected to the detective’s opinion, it would have been excluded as an impermissible opinion on Battle’s guilt. The detective’s opinion as to the guilt of the defendant impinged on the jury’s determination. Trial courts should be stricter in cautioning counsel against soliciting such opinions and law enforcement officials about making such statements. As this case will be remanded for a new trial, such testimony should not be allowed.

Lastly, Battle concedes that the alleged impropriety of remarks made during the State’s closing arguments was not preserved for appellate review. We thus affirm without further discussion.

In summary, we reverse and remand for a new trial based upon Battle’s first argument, and affirm as to his second, third and fourth arguments on appeal.

Affirmed in part, reversed and remanded in part.

WARNER and TAYLOR, JJ., concur.

Not final until disposition of timely filed

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GABRIEL RODRIGUEZ-LARA, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3967

District Court of Appeal of Florida, Fourth District.

September 30, 2009

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. Case No. 2005CF008025AXXMB.

Eugene S. Garrett, Boca Raton, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant, Gabriel Rodriguez-Lara, appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 without an evidentiary hearing. We reverse and remand the denial of Grounds 1, 2, and 3, for the trial court to conduct an evidentiary hearing because appellant stated legally valid claims that are not conclusively refuted by the record. We affirm as to Ground 4.

“A court’s decision whether to grant an evidentiary hearing is subject to de novo review.” Owen v. State, 986 So. 2d 534, 543 (Fla. 2008).

[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient. The defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden. However, in cases where there has been no evidentiary hearing, we must accept the factual allegations made by the defendant to the extent that they are not refuted by the record. We must examine each claim to determine if it is legally sufficient, and, if so, determine whether or not the claim is refuted by the record.

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Williamson v. State, 994 So. 2d 1000, 1006 (Fla. 2008) (quoting Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000)). To determine the facial or legal sufficiency of a claim of ineffective assistance of counsel, the court applies the two-pronged test set out in Strickland v. Washington, 466 U.S. 668 (1984). See Jones v. State, 845 So. 2d 55, 65 (Fla. 2003) (“To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.”). Failure to sufficiently allege both prongs results in a summary denial of the claim. Spera v. State, 971 So. 2d 754, 758 (Fla. 2007).

Appellant was convicted of one count of burglary with assault or battery and one count of aggravated battery on his estranged wife. In Ground 1, appellant claimed that trial counsel was ineffective for failing to call his girlfriend as a witness to establish his defense to the burglary charge. He asserted that she would have testified that he had gone to the house late at night because he could not get his wife on the phone and was worried about his family. When he got there, the door was open and his daughter let him in. He asserted that his girlfriend was willing to testify and that she was waiting outside the courtroom expecting to testify. He attached her affidavit and asserted in Ground 2 that, because trial counsel did not call her to testify, he presented no defense to the burglary charge. Thus, appellant stated a facially sufficient ground for relief under Spera, 971 So. 2d at 758 (where the claim is that trial counsel was ineffective for failing to call a witness, in addition to alleging the identity of the witnesses, the substance of their testimony, and how he was prejudiced, a movant must allege that the witness was available to testify at trial).

The trial court summarily denied Ground 1, concluding that appellant could not establish that trial counsel was deficient because the affidavit attached to appellant’s motion was inconsistent with the transcript of the sworn statement the appellant had given to investigators. “However, in cases where there has been no evidentiary hearing, we must accept the factual allegations made by the defendant to the extent that they are not refuted by the record.” Freeman, 761 So. 2d at 1061. Nor does the record conclusively refute appellant’s assertions. It establishes that he informed the trial court before trial that trial counsel “didn’t look into” the girlfriend as a potential witness. While the appellant’s pre-trial statement did contradict the girlfriend’s affidavit on some points, it also corroborated appellant’s assertion that she would testify that he did not enter the house with the intention of battering the victim.

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Finally, appellant asserted that the trial court improperly relied on the appellant’s statement because is it not part of the files and record in this case. See Dessin v. State, 868 So. 2d 613, 614 (Fla. 2d DCA 2004) (“[N]either the State nor the trial court may go outside the record to refute a defendant’s allegations in a motion for postconviction relief.”). It is not possible to discern from the record before us on appeal whether that statement was part of the files and record. On remand, the trial court must verify that the statement is part of the record before relying on it.

Ground 2 was completely intertwined with Ground 1, in that appellant asserted that trial counsel was ineffective for failing to present a defense to the burglary charge. Trial counsel called no witnesses and argued only briefly in closing that the State had not proved appellant intended to assault or batter the victim when he entered the house. Due to a total lack of evidence, however, he could not offer any explanation for why appellant had entered the house in the first place.

An evidentiary hearing is required to determine the extent that trial counsel’s argument may have been shaped by strategic choices to which appellant agreed. See Harris v. State, 768 So. 2d 1179, 1183 (Fla. 4th DCA 2000) (full exploration of the trial attorney’s strategy decisions and communications with his client required, unless proving prejudice is impossible because the asserted “defense would have been severely undermined by the wealth of incriminating evidence before the jury”). There is not a wealth of incriminating evidence on the element of intent in this case. The only evidence that appellant intended to batter the victim when he entered the house was the fact that he entered the house without permission at night and ultimately battered her.

In Ground 3, appellant asserted that trial counsel conceded guilt to aggravated battery as a lesser included offense of the charge of attempted first degree murder without his permission. “[T]he effectiveness of counsel for conceding the guilt of a client is to be evaluated under the Strickland standard.” Cox v. State, 966 So. 2d 337, 366 (Fla. 2007).

The record establishes that, before trial, trial counsel told the trial court that appellant had agreed to concede guilt to a lesser charge of domestic battery, but that he had not gone over his opening statement with appellant. Appellant asserted that he had agreed to concede guilt to simple battery, but that trial counsel conceded guilt to aggravated battery by repeatedly describing the battery in emotional and inflammatory terms that prejudiced the jury against him and made it

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impossible to argue that he had merely committed a simple battery. We agree.

Evidence was presented that appellant had choked the victim. Some of her hair had been pulled out, and she had bruises and small scratches on her neck and arms and some bite marks. She had, however, suffered no permanent injuries and agreed that her injuries were superficial. Before the jury heard this evidence, however, trial counsel had conceded that appellant had battered his wife and had described the “domestic battery” in opening statement as “a severe beating . . . domestic violence .. . a very bad ugly thing. . . . The beating is awful. . . . It is a terrible thing. . . .”

In closing argument, trial counsel continued by describing it as “a violent battery . . . an act of violence . . . a beating.” He did make one short argument in closing that this was a “simple battery.” However, the jury was not instructed on crimes named “domestic battery” or “simple battery.” It was instructed only that it could find appellant guilty of “aggravated battery” if the victim suffered great bodily harm. It could find appellant guilty of “battery” if the victim suffered bodily harm. Neither “great bodily harm” nor “bodily harm” was defined in the instructions.

Under these facts, where the difference between a finding of guilty for battery versus aggravated battery was how the jury felt about the harm caused to the victim, trial counsel’s repeated use of emotional and inflammatory terms to describe the battery was the functional equivalent of a concession that appellant had committed aggravated battery. As a result, the only issue for the trial court to resolve on remand is whether appellant agreed to the strategy used by trial counsel.

In Ground 4, appellant argued that trial counsel was ineffective for failing to object when the state impermissibly argued in closing that the jury was the “conscience of the community.” Standing alone, this failure does not constitute ineffective assistance of counsel because the improper comment was isolated at the end of closing argument, with the result that appellant cannot establish sufficient prejudice to require a new trial. Zack v. State, 911 So. 2d 1190, 1206 (Fla. 2005). Accordingly, appellant cannot cure the deficiency by amending his pleading, and we affirm the summary denial of Ground 4 with prejudice. Oquendo v. State, 2 So. 3d 1001, 1006 (Fla. 4th DCA 2008) (Under Spera, 971 So. 2d at 755, the movant should be granted “a reasonable opportunity to amend insufficient claims unless the deficiency cannot be cured.”).

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Affirmed in Part, Reversed in Part and Remanded.

HAZOURI, MAY and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed

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ELLVIN HUNTER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3153

District Court of Appeal of Florida, Fourth District.

September 30, 2009

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 03-15481 CF10A.

Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant, Ellvin Hunter, timely appeals the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion.

On September 13, 2003, two police detectives patrolling Fort Lauderdale in a marked unit pulled behind a Ford Taurus which they paced driving 42 mph in a 30 mph zone. The vehicle’s temporary tag was altered. The detectives activated their lights and, when the driver failed to pull over, issued a BOLO. Later that day another officer assisted the detectives and pulled behind the vehicle which ultimately ran a red light. The detectives activated emergency equipment as they were catching up to the car. Hunter, the driver, exited the vehicle and ran on foot but was apprehended shortly thereafter. A search of Hunter’s person revealed cannabis and keys to the vehicle. Inside the vehicle, in plain view, was a pistol between the driver seat and console. The state charged Hunter with possession of a firearm by a convicted felon, possession of a firearm with altered serial numbers, possession of cannabis and fleeing a police officer. The state filed a notice seeking habitualization in December 2003. The court severed count I, possession of a firearm by felon, from the other counts.

Hunter was tried only for possession of a firearm by a convicted felon. Pamela Robinson testified for the defense that on the date of the incident she was dating Mainey Silva, who was friends with the defendant, Hunter. She and Silva were celebrating Silva’s birthday at a hotel. Robinson testified that she, Silva, and Hunter all drove her 2000 Ford Taurus at times. That day Silva took the car and left her at the hotel.

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Silva had another car which he kept in storage because it had expensive rims. Silva also had two guns, a black and a brown gun.

Hunter testified in his own defense that he had known Silva on September 13, 2003, for about a year and a half and knew Pamela Robinson through Silva. When Silva came by the apartment to pick Hunter up, Hunter drove the vehicle. Hunter did not notice whether there was a gun in the car but he did notice a white towel or T-shirt in the vehicle closer to Silva’s side of the car. Hunter testified that the front and driver windows of the car had legal tint, but that the back windows were tinted illegally dark. Hunter testified that police in an unmarked Taurus pulled behind them. Silva said not to stop because Silva had a warrant for his arrest and didn’t want to go to jail, so Hunter kept driving at a slow pace. The car behind him didn’t put on any lights and so he kept going. When the police lights came on Hunter drove away and lost sight of the police. Hunter ultimately ran a red light. Silva jumped out of the car and Hunter kept driving and stopped the vehicle in front of his girlfriend’s house.

Hunter admitted during cross examination that he was a four time convicted felon. He had driven Robinson’s car twice before and that was the third time he was driving the car. Hunter testified that during the time he was friends with Silva he had never seen him with a gun. Hunter never saw or touched a gun in the car that day. Hunter was found guilty as charged and sentenced as an habitual felony offender to thirty years imprisonment. This court affirmed Hunter’s convictions on direct appeal and wrote an opinion addressing only the sufficiency of the evidence. Hunter v. State, 914 So. 2d 985 (Fla. 4th DCA 2005).

Hunter subsequently filed his motion for post-conviction relief arguing that he was entitled to relief on six grounds: (1) counsel failed to object to the judge’s submission of incomplete jury instructions for use in jury deliberations; (2) counsel failed to prepare and/or proffer reverse Williams¹ Rule evidence; (3) counsel conceded Hunter’s guilt without his explicit and affirmative consent; (4) counsel failed to contemporaneously object to and/or move for mistrial for prosecutorial misconduct during closing arguments; (5) counsel failed to properly communicate the State’s plea offer of five years; (6) counsel failed to object to the trial court’s allowing an alternate juror’s notes to be given to the jury foreperson and considered during jury deliberation; (7) counsel failed to object to the jury taking the charging information which included severed offenses with them into deliberations.

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The State responded that Hunter’s motion should be summarily denied because claims 1, 4, 5, and 6 of trial court error and prosecutorial misconduct were procedurally barred since they were or should have been raised on direct appeal and the remaining claims were without merit and directly refuted by the record. The trial court summarily denied Hunter’s motion. Hunter now timely appeals.

In alleging ineffective assistance of counsel, a defendant must meet the two prongs of Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of competent performance under prevailing professional standards. See Kennedy v. State, 547 So. 2d 912, 913 (Fla. 1989). Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and the reliability of the proceeding that confidence in the outcome is undermined. Id. A trial court’s summary denial of a rule 3.850 motion is appropriate only when the claims are either conclusively refuted by the record or facially invalid. Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). Where the trial court did not hold an evidentiary hearing, the defendant’s allegations must be accepted as true to the extent they are unrefuted by the record. Id.

We find error in the trial court’s summary denial of claims 5 and 7 of Hunter’s 3.850 motion and reverse and remand for an evidentiary hearing. The State argues that summary denial of claim 5 was appropriate because defense counsel acknowledged at the sentencing hearing that he was aware of the maximum penalty of thirty years, and thus, the record refutes Hunter’s claim. However, Hunter’s claim alleges that defense counsel advised him of the five-year plea offer but failed to inform him that he could be sentenced as an habitual felony offender for up to thirty years. The fact of defense counsel’s acknowledgment does not prove that defense counsel properly informed Hunter of his exposure when he advised him of the State’s plea offer. Thus, this allegation is not refuted by the record.

Furthermore, in Smith v. State, 909 So. 2d 972 (Fla. 2d DCA 2005), the court held that a defendant was entitled to an evidentiary hearing on his motion for postconviction relief where he alleged defense counsel had failed to inform him that he faced habitual felony offender sentencing of thirty years if he rejected the State’s plea offer of 15.6 years. Id. at 973. The court explained that a facially sufficient claim of ineffective assistance is pled where the defendant states that (1) counsel failed to inform or misinformed him of the State’s plea offer, (2) but for the misinformation, defendant would have accepted the offer, and (3) the

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State’s offer, if accepted, would have resulted in a lesser sentence than the ultimate sentence received. Id. Though the record includes the State’s notice of intent which was served at the sentencing hearing, Hunter alleges that the State offered a five-year sentence in exchange for his plea prior to trial and sentencing. Therefore, an evidentiary hearing is required before the trial court can properly conclude that counsel was not ineffective for failing to advise Hunter of the possibility that he could be sentenced as a habitual felony offender to a significantly greater sentence.

The State also argues that the trial court properly summarily denied Hunter relief on claim 7 because the record does not support Hunter’s contention that the jury was provided with an unamended information which listed the severed charges. Only the charge of possession of a firearm by a convicted felon was tried, and yet, Hunter alleges the jury received an unamended information which listed severed charges of possession of a firearm with altered serial number, possession of cannabis, and fleeing a police officer. In Higgins v. State, 885 So. 2d 994 (Fla. 4th DCA 2004), the defendant argued ineffective assistance of counsel alleging that counsel had failed to object to the jury receiving an information which listed severed charges. Id. at 996. Because there was no record evidence conclusively refuting the claim, this court held that an evidentiary hearing was required. Id. In the present case, there is no record evidence that the information given to the jury was an amended version with the severed charges removed. Therefore, the trial court erred in summarily denying relief on this ground and an evidentiary hearing is required. For the foregoing reasons, we reverse and remand for an evidentiary hearing on claims 5 and 7 of Hunter’s 3.850 motion for postconviction relief.

Reversed and remanded.

STEVENSON and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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JEFF LIGHT, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-1898.

District Court of Appeal of Florida, First District.

Opinion filed September 30, 2009.

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

Lisa B. McLean of Lisa B. McLean, P.A., Tampa, for Appellant.

Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

Appellant raises two issues in his appeal from a final judgment and sentence for two counts of unlawful sexual activity with certain minors. We find one issue to be dispositive. Specifically, the trial court erred in denying appellant’s motion to suppress his confession which was obtained through promises to the appellant. We, therefore, reverse.

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Appellant complains of two techniques used by Deputy Sheriff Tummond during the interview, namely that Tummond told appellant (1) he could go home that day no matter what he said, and (2) Tummond told appellant the age for consent was 16, when in fact, in appellant’s particular case, it was 18. Appellant argues that the result of these techniques was to offer an implied promise of no prosecution that created a quid pro quo relationship.

It is well established that a confession or an inculpatory statement must be voluntary, under the totality of the circumstances, to be admissible. See, e.g., Blake v. State, 972 So. 2d 839 (Fla. 2007); Walker v. State, 771 So. 2d 573 (Fla. 1st DCA 2000).

In Ramirez v. State, 34 Fla. L. Weekly D1520 (Fla. 1st DCA July 29, 2009), we summarized the law in this area in the following manner:

It is also well-established that an interrogating officer may, without rendering a confession involuntary, promise to make a suspect’s cooperation known to the prosecutor or advise the suspect that “it would be easier on him” if he cooperated. Blake, 972 So. 2d at 844. Confessions or inculpatory statements induced by other types of promises may, however, result in suppression at trial. See id. Whether a particular confession or statement is rendered involuntary as a result of improper promises depends on the totality of the circumstances. See id. at 844-45; Walker, 771 So. 2d at 575. This Court has emphasized that “[e]ach case must be judged on its own unique facts.” Green v. State, 878 So. 2d 382, 384 (Fla. 1st DCA 2003).

The State suggests that Appellant’s statement cannot be considered involuntary because the detective did not make an express “quid pro quo” bargain with him. We disagree. While the presence of an

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express “quid pro quo” bargain for a confession will render the confession involuntary as a matter of law, see Walker, 771 So. 2d at 575, it is not correct to say that the absence of an express “quid pro quo” bargain insulates police misconduct from claims of undue influence or coercion. The test for determining whether a particular confession or statement is involuntary is still whether, in considering the totality of the circumstances, the reviewing court can conclude that the defendant was unable to make a choice free from unrealistic hope and delusions as to his true position, due to the officer’s conduct. Walker, 771 So. 2d at 575.

Tummond repeatedly told appellant that no matter what appellant said, he would be able to go home that day. Tummond never implied or stated that if appellant confessed, however, he would not be arrested or prosecuted. Tummond stated to appellant that he still had investigating to do, and thus, the trial court did not err in holding it was unreasonable for appellant to take this statement as a promise of no prosecution. Thus, were this the only issue, we would affirm the trial court. We cannot, however, consider this statement in isolation.

Appellant also claimed Tummond’s misstatement that the age for consent was 16 in Florida was meant to cause appellant to think his actions were legal and, thus, to believe confessing to them could not lead to his arrest or prosecution. The age for consent is 16, but only when the perpetrator is not older than 23. See § 794.05, Fla. Stat. (2005). Tummond testified he knew appellant was older than 23. In that case, the age for consent was actually 18. While “police misrepresentations alone do not necessarily render a confession involuntary. . . . [t]o establish that a statement is involuntary, there must be a finding of coercive police conduct.”

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Blake, 972 So. 2d at 844 (internal citations omitted). When police officers use techniques that “delude the suspect as to his true position,” a resulting confession may not be voluntary. Thomas v. State, 456 So. 2d 454, 458 (Fla. 1984).

This case is strikingly similar to Albritton v. State, 769 So. 2d 438 (Fla. 2d DCA 2000). In Albritton, the court held there was “an implied, if not a direct, promise on the part of [the police] that if Ms. Albritton confessed that she committed the offense as part of a religious ritual, she would be constitutionally protected and could not be prosecuted,” and, thus, there was a “nexus between the detective’s statements regarding the religious ritual and Ms. Albritton’s confession” because regardless of any ulterior motive (to protect her son), the confession was clearly induced by the assurance, since “immediately after the detective’s statements regarding the constitutional protections applied to religious activity, Ms. Albritton confessed.” Id. at 442. Similarly, the clear causal connection between the deceptive statement and the confession in Albritton is present in the current case.

These misrepresentations of the law concerning the age of consent coupled with the promise to the defendant that he could go home, even if he admitted having sexual relations with the 16-year-old girl, rendered the statement involuntary; we must therefore reverse and remand for a new trial.

WEBSTER and CLARK, JJ., CONCUR.

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JABE CARNEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-1753.

District Court of Appeal of Florida, Second District.

Opinion filed September 30, 2009.

Appeal from the Circuit Court for Manatee County, Janette Dunnigan, Judge.

Joseph J. Registrato, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

CRENSHAW, Judge.

Jabe Carney appeals his judgments and sentences of fifteen years’ incarceration for DUI manslaughter, driving while license suspended and causing death, driving while license suspended as a habitual offender, and two counts of misdemeanor DUI. Because the trial court erred in sentencing Carney twice for one homicide, we

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reverse and remand for the imposition of an appropriate sentence, and affirm on all other grounds without comment.

On February 5, 2006, Carney was involved in a single-automobile accident just south of the Skyway Bridge, which resulted in a passenger’s death when the car lost control and spun off the roadway. Carney was subsequently charged with DUI manslaughter, driving while license suspended and causing death, driving while license suspended as a habitual offender, and two counts of misdemeanor DUI. Carney pleaded guilty to driving while license suspended as a habitual offender, and a jury found him guilty of all other charges. Carney was sentenced to fifteen years for DUI manslaughter and to five years for driving while license suspended and causing death.

The State concedes error. We agree, and find that while it was proper to convict Carney of DUI manslaughter and driving while license suspended, the trial court erred when it enhanced the degree of both crimes based on a single homicide. See State v. Cooper, 634 So. 2d 1074, 1075 (Fla. 1994).

Accordingly, we reverse and remand for the imposition of an appropriate sentence. Carney’s convictions are affirmed.

Affirmed in part, reversed in part, and remanded.

LaROSE and KHOUZAM, JJ., Concur.

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STATE OF FLORIDA, Appellant,
v.
ROBERT KONEGEN, Appellee.

No. 4D08-2224.

District Court of Appeal of Florida, Fourth District.

September 30, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michael L. Gates, Judge, L.T. Case No. 07-13739 CF 10A.

Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.

LEVINE, J.

The jury convicted appellee, Robert Konegen, of uttering a forged or false instrument. After the jury returned its guilty verdict, the trial judge granted a defense motion for a judgment of acquittal based on Linn v. State, 921 So. 2d 830 (Fla. 2d DCA 2006). On appeal, the state argues that the trial court erred in granting the motion. Based on the specific facts of this case, we agree with the state and find the court’s reliance on Linn to be misplaced.

The standard of review was summarized in State v. Burrows, 940 So. 2d 1259, 1261-62 (Fla. 1st DCA 2006):

A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo to determine whether the evidence is legally sufficient to support the jury’s verdict. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). In criminal cases, legal sufficiency, as opposed to evidentiary weight, is the appropriate concern of the district court, and a heightened standard of proof required in a trial court does not change the standard of review here. See McKesson Drug Co. v. Williams, 706 So. 2d 352, 353-4 (Fla. 1st DCA 1998). It is well settled that, when reviewing a judgment of acquittal, the appellate court must apply the competent, substantial evidence standard and “consider the evidence and all reasonable inferences from the evidence in a light most favorable to the [S]tate.” Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st DCA 2001) (en banc) (citations omitted); see

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also, Darling v. State, 808 So. 2d 145, 156 (Fla. 2002). “If the State has presented competent evidence to establish every element of the crime, then a judgment of acquittal is improper.” State v. Williams, 742 So. 2d 509, 511 (Fla. 1st DCA 1999).

At this trial, a bank teller testified that appellee asked her to cash a $5,000 cashier’s check, which subsequently turned out to be invalid. The teller testified that appellee did not mention any concerns about the validity of the check and had never asked her to determine if the check was real. A detective, however, testified that appellee confessed that he told the bank teller that he did not know if the check was “fake or not.” After the trial court denied his motion for judgment of acquittal at the close of the state’s case, the appellee took the stand. The appellee testified that he worked for a real estate company for two months and that he received the check from a potential customer for the purpose of renting a property. He never met the prospective renter, a contract was not signed, and communication was only by email. Appellee also stated that he did not know anything about the person whose signature was on the check. He explained that he was suspicious about the check’s validity because it was made out for more than the renter was required to pay. Appellee claimed that he feared the check was part of a “moneylaundering scheme,” which was why appellee says he related his fears regarding the check’s validity to the teller.

The trial court granted the motion for judgment of acquittal, after the jury found him guilty as charged. The trial court relied exclusively on Linn, a case in which the court reversed the defendant’s conviction for uttering a forged instrument.

In that case, Linn attempted to cash a forged personal check. Linn, 921 So. 2d at 832. The person whose name was forged did not know when or how he lost the check, and he had never seen Linn before. Id. Linn testified that he received the signed check from a man who had introduced himself as the person whose name was on the check. It was payment for maintenance work on a car. Id. at 833. Linn’s mother testified that she witnessed the man give him the check. Id. at 832.

Linn argued that the circumstantial evidence presented by the state to prove that he had actual knowledge that the check had been forged¹ was

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consistent with his reasonable hypothesis of innocence. Id. at 834-35 (citing State v. Law, 559 So. 2d 187, 189 (Fla. 1989)). The court found that the state had “presented no evidence that was inconsistent with Linn’s explanation” and therefore reversed the conviction. Linn, 921 So. 2d at 835.

In this case, unlike Linn, the state presented evidence that was inconsistent with appellee’s explanation. Appellee claimed he informed the teller he was concerned about whether the check was real and asked the teller to verify it. The teller testified that appellee did not tell her he was concerned about the validity of the check and had not asked her to verify its validity. Here, the teller’s testimony directly contradicted the appellee’s testimony, creating an issue of fact.

Where there is contradictory, conflicting testimony, “the weight of the evidence and the witnesses’ credibility are questions solely for the jury,” and “the force of such conflicting testimony should not be determined on a motion for judgment of acquittal.” State v. Shearod, 992 So. 2d 900, 903 (Fla. 2d DCA 2008) (quoting Fitzpatrick v. State, 900 So. 2d 495, 508 (Fla. 2005), and citing Darling v. State, 808 So. 2d 145, 155 (Fla. 2002)). Accordingly, we reverse the order granting the judgment of acquittal and remand with directions to reinstate the jury’s verdict, enter judgment, and sentence the appellee.

Reversed and Remanded with directions.

DAMOORGIAN and GERBER, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

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HENRY JAMES RIVERS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-3051.

District Court of Appeal of Florida, Second District.

Opinion filed September 30, 2009.

Appeal from the Circuit Court for Hillsborough County, Wayne S. Timmerman, Judge.

James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Henry James Rivers appeals his convictions and sentences for two counts of burglary of an unoccupied dwelling and one count of grand theft, specifically challenging his prison releasee reoffender (PRR) sentence for grand theft. Grand theft is not a qualifying offense under the PRR statute. § 775.082(9)(a)(1), Fla. Stat. (2007).

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Therefore, Rivers could not have been sentenced as a PRR on that offense. The State agrees that Rivers should be resentenced to a non-PRR sentence on the grand theft count. See Tucker v. State, 864 So. 2d 580, 581 (Fla. 2d DCA 2004) (holding that when an illegal sentence is the result of a negotiated plea agreement with the State, the State has the option of agreeing to the resentencing or withdrawing from the plea agreement).

In response to a motion to correct sentencing error filed by Rivers, the trial court correctly eliminated the PRR designation from Rivers’ grand theft sentence, but it did so too late because sixty days had already passed, which rendered the corrected sentence a nullity. See Fla. R. Crim. P. 3.800(b)(2)(B), (b)(1)(B); Manning v. State, 961 So. 2d 1135, 1136 (Fla. 2d DCA 2007). The sixty-day limitation in the rule is jurisdictional, see Manning, 961 So. 2d at 1136, and therefore, even a corrected sentence that is sought by the defendant and agreed to by the State cannot be imposed by the court upon the stipulation of the parties because it is fundamental that parties cannot stipulate to confer jurisdiction on the court, see Metellus v. State, 900 So. 2d 491, 495 (Fla. 2005).

Accordingly, we reverse Rivers’ sentence for grand theft and remand for resentencing on that count only.

Affirmed in part, reversed in part, and remanded.

DAVIS and VILLANTI, JJ., Concur.

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