Florida Criminal Law Opinions

Rodrigo Bonilla, Appellant,
v.
The State of Florida, Appellee. No. 3D07-2476. District Court of Appeal of Florida, Third District. Opinion filed September 23, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Julio E. Jimenez, Judge, Lower Tribunal No. 04-31906.

Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.

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

Before GERSTEN and CORTIÑAS, and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

Rejecting the appellant’s primary position on appeal, we conclude — notwithstanding the very sketchy nature of the record as to the surrounding circumstances — that the singular fact that the defendant drove a butcher knife five and three-quarter inches into the victim’s chest, reaching his heart and causing his death, was itself sufficient to establish the “depraved mind” element of second degree murder, of which Bonilla was convicted after a jury trial. State v. Bryan, 287 So. 2d 73 (Fla. 1973), cert. denied, 417 U.S. 912 (1974); Todd v. State, 756 So. 2d 145 (Fla. 5th DCA 2000); Hines v. State, 227 So. 2d 334 (Fla. 1st DCA 1969); Davis v. State, 879 S.W.2d 439 (Ark. 1994); see also State v. Davidson, No. C.C.A. No. 88-231-III, 1989 WL 76326 (Tenn. Crim. App. Oct. 2, 1989).

We find no merit in the appellant’s contention that self-defense was established as a matter of law.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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MICHAEL P. DENLINGER, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D05-2475. District Court of Appeal of Florida, Fourth District. September 23, 2009.

ON REMAND FROM THE FLORIDA SUPREME COURT

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562004CF000870A.

Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We reconsider on remand our opinion Delinger v. State, 944 So. 2d 1072 (Fla. 4th DCA 2006),¹ which was quashed by the Florida Supreme Court following its decision Denlinger v. State, 7 So. 3d 522, 523 (Fla. 2009). As ordered by the supreme court, we apply its decision Yisrael v. State, 993 So. 2d 952 (Fla. 2008), to the facts of this case.

In Yisrael, the Florida Supreme Court disapproved of this Court’s holding Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006), which was the case relied upon by this Court in holding that the Crime and Time Report alone was sufficient evidence of Denlinger’s last release date to sentence him as a Prison Releasee Reoffender (PRR). § 775.082(9)(a)(1), Fla. Stat. (2005).

Given the supreme court’s reasoning in Yisrael, we now reverse Denlinger’s sentence as a PRR. For a Crime and Time Report to be admitted as a business record at a sentencing hearing, the State must supply the authentication required by sections 90.803(6) and 90.902(11), Florida Statutes, or it must submit the Crime and Time Report and a signed and sealed release-date letter as one combined record. Yisrael, 938 So. 2d at 958, 960. In this case, neither a business-record authentication nor a signed and sealed release-date letter was submitted.

We, therefore, remand for resentencing consistent with the supreme court’s decision in Yisrael. Upon remand, the State may present additional evidence to prove that the defendant qualifies for PRR sentencing. State v. Collins, 985 So. 2d 985, 990 (Fla. 2008).

Reversed and Remanded.

POLEN, MAY and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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JULIO MUNIZ, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 5D09-1215. District Court of Appeal of Florida, Fifth District. Opinion filed September 18, 2009.

3.850 Appeal from the Circuit Court for Orange County, Jenifer Davis, Judge.

Julio A. Muniz, Graceville, pro se.

Bill McCollum, Attorney General, Tallahassee and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Julio Muniz appeals the order summarily denying his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Muniz raised multiple claims in his rule 3.850 motion and supplemental motions. We reverse the order denying relief as to two of the grounds, but affirm the summary denial as to all other grounds.

In ground six, Muniz alleged that counsel was ineffective during voir dire for failing to challenge juror Brian Serrage for cause, where Serrage expressed his bias on the record and counsel failed to ensure that Serrage could lay aside that bias to render his verdict solely on the evidence at trial and the court’s instructions. Serrage indicated that a police officer’s testimony was more reliable than that of other witnesses and that the defense would have to prove that a police officer’s testimony was unreliable. Although the standard of review as to a juror’s fitness is more restrictive in a rule 3.850 proceeding than on direct appeal, see Carratelli v. State, 961 So. 2d 312 (Fla. 2007),¹ the circuit court’s attachments to the order denying relief did not conclusively refute Muniz’s claim that counsel was ineffective for not attempting to rehabilitate Serrage’s prejudicial views and for not seeking to remove him from the panel, which resulted in a biased juror serving on the jury. We, therefore, reverse the denial of relief as to ground six and remand to the circuit court for further consideration of this ground.

In ground twelve, Muniz asserted that counsel was ineffective for not providing an interpreter before and during trial. The circuit court denied this claim as untimely filed. The mandate in Muniz’s direct appeal issued on October 6, 2006. Muniz, therefore, had until October 6, 2008, to raise his postconviction claim in a timely manner. See Fla. R. Crim. P. 3.850(b). The supplement containing ground twelve was served on August 19, 2008, and filed in the trial court on August 25, 2008. If new grounds are raised in a supplement to a rule 3.850 motion that is filed within the rule’s two-year limitation period and before the trial court has issued a final order, the new grounds are not untimely or successive. See Gaskin v. State, 737 So. 2d 509 (Fla. 1999), receded from on other grounds, Nelson v. State, 875 So. 2d 579 (Fla. 2004). We reverse the denial of relief as to ground twelve and remand to the circuit court for consideration of this ground on the merits.

AFFIRMED in part, REVERSED in part; REMANDED.

SAWAYA, ORFINGER and EVANDER, JJ., concur.

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Notes:

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LAWRENCE P. ALFANO, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-5546. District Court of Appeal of Florida, Second District. Opinion filed September 18, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Sarasota County; Charles E. Roberts, Judge.

Lawrence P. Alfano, pro se.

KELLY, Judge.

Lawrence P. Alfano challenges the order of the postconviction court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

Alfano pleaded nolo contendere to the charges of grand theft and carrying a concealed weapon. He was sentenced to twelve months’ probation with the condition that he pay $550 restitution to the victim of the grand theft. In his rule 3.850 motion, Alfano claimed that his plea was involuntarily entered because it was premised on trial counsel’s advice that his probation would terminate as soon as he paid the full amount of restitution. Alfano alleged that he subsequently was advised by his probation officer that he was required to be on probation for at least six months regardless of whether he paid the full amount. In its order denying Alfano’s motion, the postconviction court found that Alfano claimed that his plea was involuntarily entered because he was not aware that he was going to be sentenced to probation. This was not the basis of Alfano’s claim. Alfano claimed that his plea was involuntary because he was misinformed regarding the length of time he was required to spend on probation. This is a proper basis for a claim that the plea was involuntarily entered. See Borders v. State, 936 So. 2d 737 (Fla. 2d DCA 2006) (holding that misadvice as to a sentence’s actual length is a cognizable claim of ineffective assistance of counsel). However, for such a claim to be facially sufficient, the movant must allege that he would not have pleaded had he been advised correctly. Id. at 738. Alfano did not do so, and he has therefore not presented a facially sufficient claim.

We affirm the order of the postconviction court without prejudice to any right Alfano may have to file a timely rule 3.850 motion containing a facially sufficient claim that his plea was involuntarily entered because he was misadvised regarding the time he would have to spend on probation. The postconviction court shall not consider such a motion to be successive.

Affirmed.

WHATLEY and CRENSHAW, JJ., Concur.

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

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S.N.J., Appellant,
v.
STATE OF FLORIDA, Appellee.
S.F., Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-3672. Consolidated Case No. 2D08-3673. District Court of Appeal of Florida, Second District. Opinion filed September 18, 2009.

Appeal from the Circuit Court for Hillsborough County; Michelle Sisco, Judge.

James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellants.

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

LaROSE, Judge.

S.N.J. and S.F. appeal their adjudications and dispositions for resisting an officer without violence. Because the trial court should have granted their motions for judgment of dismissal, we reverse.

A private security guard saw S.N.J., S.F., and two companions in the parking lot of an apartment complex. Apartment leases contained a no-loitering policy; the complex, however, had no posted no-loitering or no-trespassing signs. Upon questioning, the juveniles refused to give their names and addresses to the guard. He escorted one off the property and called the police to issue trespass warnings to the others. The juveniles were engaged in no criminal or otherwise suspicious activities. When a police officer arrived, one juvenile stated that he lived in the complex; the officer escorted him home. The officer returned and repeatedly asked S.N.J. and S.F. for their names and addresses, intending only to issue a trespass warning. In rather vulgar terms, S.N.J. and S.F. refused. The officer arrested them.

Section 843.02, Florida Statutes (2007), states in relevant part:

Whoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree.

To secure a conviction, the State must show that: (1) the officer was engaged in the lawful execution of a legal duty and (2) the defendant’s action constituted obstruction or resistance of the lawful duty. Slydell v. State, 792 So. 2d 667, 671 (Fla. 4th DCA 2001).

The trial court ruled that the officer was engaged in the lawful execution of a legal duty when he attempted to issue a trespass warning. The officer claimed to have been unable to issue the warnings without names. Thus, S.N.J.’s and S.F.’s refusal to identify themselves constituted an obstruction of the officer’s duty. We review the denial of motions for judgment of dismissal de novo. See G.T.J. v. State, 994 So. 2d 1182 (Fla. 2d DCA 2008).

Section 810.09(1)(a)(1), Florida Statutes (2007), requires that notice be given before a person can be guilty of trespassing on property other than a structure or conveyance. S.N.J. and S.F. could be legally detained for trespassing only if they were first warned to leave the property. See In the Interest of B.M., 553 So. 2d 714, 716 n.2 (Fla. 4th DCA 1989) (explaining that the crime of trespass on unposted land does not occur until after trespasser is warned to depart and fails to do so). Section 810.09(2)(b) provides that any person authorized by the property owner may give the requisite warning. When attempting to issue a trespass warning to S.N.J. and S.F., the officer acted as the property owner’s agent, not in an official capacity. See Rodriguez v. State, No. 2D07-5992, 34 Fla. L. Weekly D1673 (Fla. 2d DCA Aug. 19, 2009) (holding that property owners and lessees can give officers authority to issue such warnings); J.M.C. v. State, 962 So. 2d 960, 962 (Fla. 4th DCA 2007) (Klein, J., concurring specially) (stating that property owner had a right to ask defendant to leave his property, the defendant had the right as well as the duty to do so, and the officer’s agreement to convey the trespass warning did not convert it into a legal duty); B.M., 553 So. 2d at 715 (holding that officer is authorized by the property owner to issue trespass warnings).

The officer could have asked the juveniles to leave the property, thereby giving them a warning under the statute, without knowing their names. See Slydell, 792 So. 2d at 673 (holding that until the officer had a reasonable suspicion of trespassing, defendant could refuse to give his name). He did not; thus, neither S.N.J. nor S.F. was guilty of trespassing under section 810.09(1)(a)(1), and no sufficient cause existed to detain them. See Slydell, 792 So. 2d at 671 (“A mere `hunch’ that criminal activity may be occurring is not sufficient” for an investigatory stop.).

That the apartment complex had a no-loitering policy in its leases does not validate S.N.J.’s and S.F.’s detention. See id. at 672 (holding an officer’s bare suspicion that a person is trespassing insufficient for an investigatory stop and detention, even when coupled with an agreement between the property owner and the police for officers to stop and investigate unfamiliar persons); B.M., 553 So. 2d at 715 (holding that police authority absent posted trespass warning “was limited to conveying an order to depart the premises”). The record does not indicate that the juveniles knew of the policy. At most, the officer’s encounter with S.N.J. and S.F. was consensual. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).

An individual may refuse to identify herself to a police officer when she has not been lawfully detained. See A.F. v. State, 912 So. 2d 374, 376 (Fla. 2d DCA 2005); Fournier v. State, 731 So. 2d 75, 76-77 (Fla. 2d DCA 1999); Burkes v. State, 719 So. 2d 29, 30 (Fla. 2d DCA 1998). Further, to support a conviction under section 843.02, “with limited exceptions, physical conduct must accompany offensive words.” Francis v. State, 736 So. 2d 97, 99 (Fla. 4th DCA 1999) (footnote omitted). Words alone rarely, if ever, amount to an obstruction. See D.A.W. v. State, 945 So. 2d 624, 626 (Fla. 2d DCA 2006); Francis, 736 So. 2d at 99; D.G. v. State, 661 So. 2d 75, 76 (Fla. 2d DCA 1995).

The officer was merely acting as an agent of the property owner to issue a trespass warning. Until the officer asked S.N.J and S.F. to leave and they refused, they were entitled to refuse to identify themselves.

Accordingly, we reverse the adjudications and dispositions. Our resolution moots the juveniles’ issues concerning the imposition of costs.

Reversed.

VILLANTI and WALLACE, JJ., Concur.

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

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JAMES RAY BOOTH, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 5D08-2132. District Court of Appeal of Florida, Fifth District. Opinion filed September 18, 2009.

Appeal from the Circuit Court for Hernando County, Jack Springstead, Judge.

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

James Ray Booth appeals his sentences on charges of third degree felony murder and aggravated assault with a firearm, alleging three errors. The State concedes error with respect to two of the issues raised. We reverse in part and affirm in part, and will address each issue in order, after explaining the two convictions and sentences.

Convictions and Sentences Imposed

Booth was convicted following a jury trial of third degree felony murder, which was enhanced from a second degree felony to a first degree felony based upon Booth’s use of a firearm pursuant to section 775.087(1), Florida Statutes (2006). The sentencing range was further enhanced to life based upon the trial court’s finding that Booth qualified as a habitual felony offender (“HFO”). See § 775.084(4)(a), Fla. Stat. (2006). Finally, Florida’s 10-20-life statute¹ also applied, based upon the jury’s finding that Booth “actually inflicted death to [the victim], as a result of discharging a firearm in his possession.” The trial court ultimately imposed a life sentence on this charge.

With respect to the aggravated assault with a firearm charge, a third degree felony, the sentencing range was again enhanced (to ten years) based upon the trial court’s HFO finding. The trial court imposed a ten-year sentence on this charge, with a three-year minimum mandatory pursuant to section 775.087(2)(a)1., Florida Statutes. This sentence was imposed consecutively to the life sentence.

Hale Issue

Booth contends, and the State concedes, that the trial judge could not legally impose consecutive HFO sentences on crimes arising from the single criminal episode alleged in the indictment, citing to Hale v. State, 630 So. 2d 521 (Fla. 1993). This concession was proper. See id.; Williams v. State, 10 So. 3d 1116 (Fla. 5th DCA 2009). Therefore, we reverse as to this issue, with directions that the court impose the sentences concurrently on remand.

Osorio Issue

Next, Booth argues, and the State concedes, that Booth’s conviction for third degree felony murder could not be reclassified to a first degree felony for use of a firearm because the indictment and jury instructions made the firearm an essential element of the charge for which Booth was convicted, citing Osorio v. State, 746 So. 2d 490 (Fla. 2d DCA 1999). Again, this concession was proper. The felony underlying Booth’s murder conviction was aggravated assault with use of a firearm. Because Booth’s use of a firearm was an essential element of the offense, as charged and proven, the firearm reclassification was not available. Id.; § 775.087(1), Fla. Stat. (2006). This means that Booth’s sentencing documents should be corrected on remand to reflect the underlying third degree felony murder charge as a second degree felony with a maximum penalty of fifteen years. With the court’s HFO finding, the sentencing range doubled to thirty years on this charge. See § 775.084(4)(a)2., Fla. Stat. (2006).

Mendenhall Issue

Booth’s final argument is that he could not receive a life sentence on the third degree felony murder charge through application of the 10-20-life statute, section 775.087(2)(a), Florida Statutes. A panel of our court rejected this argument Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008). However, Mendenhall is in conflict on this point with the en banc majority decision Collazo v. State, 966 So. 2d 429 (Fla. 4th DCA 2007) and with three other Fourth District cases applying Collazo. See Johnson v. State, 34 Fla. L. Weekly D1752 (Fla. 4th DCA Aug. 26, 2009); Thurston v. State, 984 So. 2d 1290 (Fla. 4th DCA 2008); Leary v. State, 980 So. 2d 622 (Fla. 4th DCA 2008). Mendenhall also conflicts with Sousa v. State, 976 So. 2d 639 (Fla. 2d DCA 2008) and Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005), and is currently being reviewed by the Florida Supreme Court. See Mendenhall v. State, No. SC09-400 (jurisdiction accepted July 27, 2009).

We agree with the panel decision in Mendenhall, and with Judge Warner’s dissent in Collazo (joined by Judges Gunther and Polen), that the relevant provisions of section 775.087(2) are unambiguous and provide for a minimum mandatory sentence of twenty-five years to life, based upon discharge of a firearm resulting in death or great bodily harm to the victim during the course or commission of the underlying felony, irrespective of the maximum penalty on the underlying charge. Accordingly, we affirm the life sentence, applying Mendenhall, and certify conflict on this issue with Collazo, Johnson, Thurston, Leary, Sousa and Wilson.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS; CONFLICT CERTIFIED.

ORFINGER and JACOBUS, JJ., concur.

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JOSHUA ALLEN, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 5D08-1922. District Court of Appeal of Florida, Fifth District. Decision filed September 18, 2009.

Appeal from the Circuit Court for Orange County, Tim Shea, Judge.

James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

MONACO, C.J., concurs and concurs specially with opinion.

MONACO, C.J., concurring.

I fully concur in the per curiam affirmance of this appeal. I write only to express my frustration with the rather evident lack of civility displayed by the lawyers in this case, and with my concern that despite the continued railings of this and other courts, some of the members of our Bar apparently don’t get it. See, e.g., Beekie v. Morgan, 751 So. 2d 694 (Fla. 5th DCA 2000); 5500 North Corp. v. Willis, 729 So. 2d 508 (Fla. 5th DCA 1999); Sanchez v. Sanchez, 435 So. 2d 347 (Fla. 3d DCA 1983). My sympathy lies with the trial judge who put up with the boorish behavior of these professionals in order to get this case to the jury. He exercised far more patience than I would have.

I hesitate to begin a list of the questionable behaviors engaged in during the evidentiary portion of the trial, but chief among them were personal sniping at opposing counsel and arguing with the rulings of the trial judge. The closing arguments of the two defense lawyers, for example, proved to be quite a challenge. By my count there were 12 objections by the State (the vast majority of which were sustained), requiring five separate bench conferences. Each bench conference required repeated admonitions by the trial judge to modulate voices downward. Most of the suspect bits of argument concerned misstatements of the facts, misstatements of the law, or giving personal opinions, none of which are appropriate.

One cannot read the transcript without being saddened. These are obviously good lawyers and zealous advocates. The problem is that they have somehow mistaken a trial notice for a hunting license. This is not good for the profession and not good for the involved individuals.¹ I sincerely hope that these lawyers will be more circumspect in the future.

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HARRY WILLIAM SMITH, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 2D07-5823. District Court of Appeal of Florida, Second District. Opinion filed September 18, 2009.

Petition Alleging Ineffective Assistance of Appellate Counsel. Hillsborough County; Wayne S. Timmerman, Judge.

Harry Williams Smith, pro se.

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

DAVIS, Judge.

Harry William Smith, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), alleges that his appellate counsel was ineffective in failing to argue that his convictions for battery on a person sixty-five years of age or older¹ and felony battery as a second offense² violated the proscription against double jeopardy because both offenses arose from a single episode in which Smith pushed his mother.³

On June 7, 2006, Smith entered an open plea to the charges, and nothing in the record indicates that he waived his protection against double jeopardy. The factual basis presented by the prosecutor was merely that “[w]hile inside [the victim's home], the defendant pushed the victim in the chest.” The trial court accepted the plea and sentenced Smith to consecutive terms of five years’ imprisonment on each count, the maximum sentences for third-degree felonies. Smith timely filed his notice of appeal. However, Smith’s appellate counsel did not raise the double jeopardy issue on appeal, and on September 5, 2007, this court affirmed Smith’s conviction and sentences. See Smith v. State, 963 So. 2d 713 (Fla. 2d DCA 2007) (table decision). Smith’s petition now alleges that his appellate counsel was ineffective for failing to raise the double jeopardy issue on appeal.⁴

To obtain relief, Smith’s burden is two-fold. First, he must show that his attorney was deficient in his representation of Smith on appeal. To that end, Smith alleges in his petition that his attorney failed to argue on appeal that the consecutive sentences for the battery on a person over sixty-five and the battery as a second offense violated his double jeopardy rights. Our review of the record reveals that Smith is correct that his attorney failed to raise this issue on appeal. The Florida Supreme Court has stated the second prong in the negative as follows: “[A] petitioner cannot prevail on a claim of ineffective assistance of appellate counsel `if a legal issue “would in all probability have been found to be without merit” had counsel raised the issue on direct appeal.’” Lowe v. State, 2 So. 3d 21, 42 (Fla. 2008) (quoting Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000)). Accordingly, to resolve the issue raised by Smith in his petition, we must decide whether this court “in all probability” would have found the issue to have been without merit had Smith’s appellate counsel raised it on direct appeal in 2006.

In reaching this decision, we must review the status of the law related to this double jeopardy issue at the time of the direct appeal. In determining whether multiple convictions and sentences for offenses that arise from a single criminal episode violate double jeopardy principles, the court must first address whether the legislature intended to authorize separate punishments for each offense. Kelso v. State, 961 So. 2d 277, 279 (Fla. 2007). Absent the express intent of the legislature, courts historically have applied the test enunciated Blockburger v. United States, 284 U.S. 299 (1932), to this analysis. See, e.g., Gordon v. State, 780 So. 2d 17 (Fla. 2001), receded from, Valdes v. State, 3 So. 3d 1067 (Fla. 2009).

The Blockburger test is codified in section 775.021(4)(a), Florida Statutes (2005), which states in part, “For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.” Subsection (4)(b) states that it is the intent of the legislature to allow for separate convictions and punishments “for each criminal offense committed in the course of one criminal episode or transaction.” However, “[e]xceptions to this rule of construction are: (1) [o]ffenses which require identical elements of proof[;] (2) [o]ffenses which are degrees of the same offense as provided by statute[; and] (3) [o]ffenses which are lesser offenses[,] the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b).

Based on the facts of the instant case, the first and third exceptions do not apply here. However, the second exception may apply to Smith’s case depending upon how the case law interpreting the legislature’s intent is applied to the facts presented on appeal. As of the time of the direct appeal, the Florida Supreme Court had interpreted this exemption several times. Sirmons v. State, 634 So. 2d 153, 154 (Fla. 1994), the supreme court articulated the exception as pertaining to offenses that “are merely degree variants of the [same] core offense.” Later, the court defined the subsection (2) exception as applying to “crimes intend[ed] to punish the same primary evil.” See State v. Paul, 934 So. 2d 1167, 1175 (Fla. 2006); see also State v. Florida, 894 So. 2d 941, 948-49 (Fla. 2005).⁵

In considering the issue of the violation of Smith’s double jeopardy rights on direct appeal, this court would have had to determine whether the consecutive sentences imposed by the trial court were consistent with the intent of the legislature or whether the exception listed in subsection (2) provided Smith relief. Based on our reading of the decisional law at the time of the 2006 direct appeal and our review of the record provided, we cannot say that “in all probability” this court would have found the issue to be “without merit.”⁶ As such, we cannot conclude that Smith was not prejudiced by his appellate counsel’s failure to raise the issue on direct appeal. Smith therefore has met his burden, and we grant his petition.

We instruct the trial court, within thirty days from the issuance of the mandate in this case, to appoint an appellate counsel to file a brief limited to this issue. Appellate counsel shall, within thirty days from the issuance of the mandate, file a new notice of appeal, referencing this opinion. We note that nothing in this opinion should be construed as a determination regarding the correct application or interpretation of any of the case law relevant to the double jeopardy issue. See Comer v. State, 997 So. 2d 440, 441 (Fla. 1st DCA 2008) (“We find that the appropriate remedy is to order a new appellate proceeding to review [this issue], rather than ordering a new trial.”).

Petition granted.

ALTENBERND and KELLY, JJ., Concur.

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

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AMOS BLAIR, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-5268. District Court of Appeal of Florida, Second District. Opinion filed September 18, 2009.

Appeal from the Circuit Court for Polk County; Steven L. Selph, Judge.

Robert A. Norgard, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Amos Blair appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court summarily denied three of Blair’s claims and denied the fourth after an evidentiary hearing. We affirm the denial of claims one, two, and four without discussion. However, as to ground three, we reverse and remand for further proceedings.

Blair was charged with one count of lewd molestation for events that occurred in January 2000. He was convicted after a jury trial and sentenced to ten years in prison followed by five years’ sex offender probation. His conviction and sentence were affirmed on direct appeal. See Blair v. State, 873 So. 2d 329 (Fla. 2d DCA 2004) (table decision). Mandate issued on May 19, 2004.

On May 19, 2006, Blair filed his motion for postconviction relief, raising four grounds for relief.¹ In ground three of his motion, Blair alleged that his trial counsel was ineffective for failing to investigate whether Frank Grover, Blair’s boss at the time of the alleged incident, pressured or threatened the victim and/or her family into testifying against Blair. Blair alleged, in essence, that Grover was out to get him because of an unrelated matter and had tampered with these witnesses to seek revenge against Blair but that his counsel had never investigated Grover’s alleged actions.

The postconviction court summarily denied relief on this ground, finding that Blair’s allegations were facially insufficient because Blair did not allege that he made his counsel aware of Grover’s alleged actions at any time prior to trial. The postconviction court attached no documents to its order that would purport to show that this claim was conclusively refuted by the record.

We agree with the trial court that Blair’s allegations in support of this claim are facially insufficient. To state a facially sufficient claim for ineffective assistance of counsel, a defendant must allege both deficient performance of counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Oisorio v. State, 676 So. 2d 1363, 1365 (Fla. 1996). When a defendant claims ineffective assistance of counsel based on counsel’s failure to investigate or call a specific witness, the defendant must allege that he or she advised counsel of the existence of such a witness. See Prieto v. State, 708 So. 2d 647, 649 (Fla. 2d DCA 1998) (holding that ineffective assistance claim predicated on counsel’s failure to call alibi witnesses was facially insufficient when the defendant did not allege that he had provided the names of the purported witnesses to counsel since “counsel could not be found ineffective for not calling alibi witnesses he knew nothing about”); Young v. State, 789 So. 2d 1160, 1162 (Fla. 5th DCA 2001) (finding ineffective assistance of counsel claim facially insufficient when the defendant did not allege that he had advised counsel of the witnesses who would allegedly support his defense). Here, Blair did not allege that he made counsel aware of Grover’s alleged actions. In the absence of such an allegation, this claim is facially insufficient.

However, when a claim for postconviction relief is determined to be facially insufficient, a postconviction court abuses its discretion if it fails to give a defendant at least one opportunity to amend the claim. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007). Here, no such leave was given even though Blair’s time to file an amended motion under rule 3.850(f) to attempt correct the facial insufficiency had expired before the postconviction court rendered its ruling. Id. at 759 (noting that defendants wishing to file amended or successive motions to correct facial insufficiencies are required to do so within the two-year deadline of rule 3.850(b) absent leave of court). Thus, we reverse the denial of this single claim and remand for the postconviction court to strike this claim and give Blair leave to amend it, if he can do so in good faith, for a period not to exceed thirty days. See id. at 761-72.

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

WHATLEY and CRENSHAW, JJ., Concur.

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

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Notes:

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Courtesy of David Edelstein

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C.A.D., a child, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D09-1186 District Court of Appeal of Florida, First District. Opinion filed September 17, 2009.

An appeal from the Circuit Court for Escambia County, Edward P. Nickinson, III, Judge.

Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

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

VAN NORTWICK, J.

C.A.D. appeals a final order adjudicating him delinquent and committing him to a high-risk facility. C.A.D. argues that, in disregarding the recommendation of the Department of Juvenile Justice (DJJ) to commit him to a moderate risk residential facility, the trial court failed to comply with the requirements set forth E.A.R. v. State, 4 So. 3d 614 (Fla. 2009). We find that the order under review satisfies the requirements of E.A.R. and, accordingly, affirm.

Following C.A.D.’s guilty plea to violating probation, in its disposition report the DJJ recommended that C.A.D. be committed to a moderate risk residential placement. In making this recommendation, DJJ reported:

According to the PACT assessment, he is reported as a HIGH risk to re-offend. [C.A.D.] is not compliant with school; he attends school when necessary with has [sic] average grades and attendance. [C.A.D.] has received referrals or other disciplinarian [sic] actions while in school. [C.A.D.] is under the custody of the Family First Network. [C.A.D.] has not had any contact with his mother or father. [C.A.D.] does not participate with church structured activities or any extracurricular activities. According to [C.A.D.], he has been sexually abused and was made to smoke crack cocaine by the abuser. [C.A.D.] absconded from probation on 2 separate occasions (July and December 2008). [C.A.D.] tested positive for marijuana and cocaine on several occasions. The only lifestyle [C.A.D.] knows is drugs and has admitted to smoking marijuana daily and using powder cocaine every other day. Also, [C.A.D.] admits to selling drugs to provide rent, utilities, food and to support his habit. [C.A.D.] is socially mature for his age.

At this time, the Department of Juvenile Justice respectfully requests that youth be committed to a Moderate Risk Program with Intensive Drug Rehabilitation.

At the disposition hearing, C.A.D. testified he had a “drug problem” for which he was not receiving help. After receiving evidence and argument of counsel, the trial court announced that it was departing from the DJJ recommendation because C.A.D., then seventeen, had a

history of failure to appear in court, history of not being available for his probation officer, and his most recent history of a two month, nearly two month absconsion from supervision at a time when both [the] Department of Juvenile Justice and the Department of Children and Family Services were trying to provide supervision. In fact, I believe he absconded from a foster care placement.. . . I have concerns that a moderate risk commitment program is going to provide adequate security to be sure that he doesn’t abscond while in commitment. . . . That’s why I [am] choosing high risk.

The trial court expressly considered matters, such as the length of the C.A.D.’s absence from foster care supervision and his failure to appear in court, which were not addressed in the DJJ’s disposition report. The trial court then explained that a high risk commitment was more appropriate given the heightened security provided in such a facility and given that “[C.A.D.] needs help with his drug problem and . . . moderate risk commitment is unlikely to provide sufficient security to do that without [C.A.D.] disappearing. . . .”

In E.A.R., the Florida Supreme Court “announced a new, more rigorous analysis in which a trial court must engage before departing from DJJ’s recommendation.” M.J.S. v. State, 6 So. 3d 1268, 1269 (Fla. 1st DCA 2009). E.A.R. held that a trial court may not depart from the recommendation of DJJ merely because it disagrees with that recommendation; instead, the trial court must provide reasons that are supported by a preponderance of the evidence. 4 So. 3d at 639. The Supreme Court explained the standards the trial court must meet in providing reasons for a departure, as follows:

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another — and thereby rationalize a departure disposition — is for the court to:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and

(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.

Simply listing “reasons” that are totally unconnected to this analysis does not explain why one restrictiveness level is better suited for providing the juvenile offender “the most appropriate dispositional services in the least restrictive available setting.”

* * *

We conclude that simply parroting is insufficient to justify departure and that, instead, the juvenile court’s stated “reasons,” must provide a legally sufficient foundation for “disregarding” the DJJ’s professional assessment and the PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public. These are suitable means of insuring fulfillment of the Legislature’s comprehensive scheme and its stated intent that the juvenile courts of this state exercise appropriate discretion with the ultimate aim of providing the juvenile offender the most appropriate dispositional services in the least restrictive available setting.

Id. at 638 (italics in original).

Here, in departing from the DJJ’s recommendation, the trial court explained that a moderate risk facility would not be sufficiently secure to maintain a serial absconder, such as C.A.D., in the drug treatment program that C.A.D. requires. While it is true that DJJ did note in its report that C.A.D. skips school and that he has absconded from probation on two occasions, the report does not mention that he has a history of failing to appear in court or absconding from foster care for a significant period of time. In addition to the matters listed by DJJ in its report, the trial court found these facts significant in determining a need for a high risk commitment. Thus, the trial court was not simply “parroting,” to use E.A.R.‘s term, the matters already considered by DJJ.

We acknowledge that the trial court did not discuss the lengths of stay possible in either moderate risk or high risk commitments, as E.A.R. suggests. Id. at 638. We do not find such an omission fatal, however, because DJJ did not make a recommendation as to the length of stay in its recommendation of moderate risk commitment. As we read the DJJ’s disposition report and the ruling of the trial court, the point of the commitment here is to provide C.A.D. with intensive drug rehabilitation. Under the statutory scheme, “[a]ny commitment of a delinquent child to the department [of Juvenile Justice] must be for an indeterminate period of time” and that the “duration of the child’s placement in a commitment program of any restrictiveness level shall be based on objective performance-based treatment planning.” §985.455(3), Fla. Stat. (2008). Once a trial court has committed a juvenile to a specific restrictiveness level, it falls to DJJ to determine the most appropriate placement. §985.441(1)(b). As a result, the length of stay in either placement would depend on the rehabilitation program(s) available to C.A.D. and on the success of his participation in such rehabilitation program.

Because the trial court here utilized the proper legal standard and because its stated reasons are supported by competent, substantial evidence in the record, we affirm.

AFFIRMED.

BARFIELD AND KAHN, JJ., CONCUR.

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

Courtesy of David Edelstein

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