Florida Criminal Law Opinions

TED DUNLAP, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1004.

District Court of Appeal of Florida, Fourth District.

October 28, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Joel T. Lazarus, Judge, L.T. Case No. 03-17796 CF10A.

Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.

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

LUCY CHERNOW BROWN, Associate Judge.

We affirm the trial court’s final judgment adjudicating appellant guilty of trafficking in cocaine. We write to explain our determination of the first issue raised by appellant. Appellant argues the trial court reversibly erred by denying his motion for mistrial which was based solely on one comment made by the prosecutor during opening statement. Appellant asserts the comment improperly instructed the jury to reach its verdict based on “the truth,” rather than on proof beyond a reasonable doubt. We disagree and examine the comment in context.

During October, 2003, Agent Chris Hunt of the Drug Enforcement Agency (DEA) worked with an informant to investigate appellant. The informant had been charged with drug trafficking several months earlier. Facing thirty years imprisonment and a fifteen-year mandatory minimum sentence, informant chose to work with law enforcement as a cooperating source. Because of his cooperation in several cases informant was ultimately sentenced to five years probation.

At trial, informant testified that he had been selling drugs to appellant on a weekly basis for approximately one year. A few months after informant’s arrest, informant saw appellant at Cheers bar in Ft. Lauderdale. Appellant gave informant his business card and informant said he would call appellant in a few days to arrange the sale of nine ounces of cocaine. Agent Hunt and Detective Pat Fletcher, of the Broward Sheriff’s Office, recorded a conversation between appellant and informant on October 21, 2003, in which appellant told informant that he could give informant $1,000 any time, and informant replied that he

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would get appellant “a nine” and appellant would owe him the remaining $3,500. Informant testified that “a nine” referred to nine ounces of cocaine.

On October 22nd, another telephone conversation was recorded in which appellant called informant to tell him he had $1,000 and informant responded that it would have to wait one day because informant had not yet seen his source.

On October 23rd, appellant met informant at Bru’s Room in Pompano Beach. Informant was sitting in his car in the parking lot. Informant’s car had been equipped with video recording equipment. Appellant approached the vehicle and told informant that he had left the money at home, and asked whether he could take “it” and bring the money back. Informant told appellant that he would wait there for appellant to return with the money, and appellant did return in ten minutes with $1,000. Informant counted the money and opened the glove box containing the cocaine. Appellant took the cocaine from the glove box and put it in a black “Hard Rock” bag. As appellant exited the vehicle, police surrounded and arrested him. A videotape of the transaction and the audio tapes of the recorded telephone conversations were introduced into evidence.

The testimony of both Agent Hunt and Detective Fletcher corroborated informant’s account of the events leading up to appellant’s arrest. Fletcher testified that he monitored and recorded the telephone conversation of October 21st. Fletcher explained that the lab tech at the Sheriff’s office packaged the cocaine in a gallon zip lock baggie and that he placed the baggie in the glove box. Fletcher testified that he searched informant’s vehicle before and after the meeting between appellant and informant and that the black “Hard Rock” bag had not been in the vehicle during either search.

Appellant took the witness stand to testify to his own version of the events. Appellant testified that he had previously lent a number of expensive tools to informant and that informant still had his tools. According to appellant, when the two met at Cheers in October, 2003, informant told appellant that informant had been in legal trouble and had no money, reminding appellant that appellant still owed him $4,500 dating back to the time when they had lived together. According to appellant’s testimony, appellant then offered to give informant $1,000 and informant agreed to return appellant’s tools. The two agreed to meet at Bru’s Room to exchange the tools and money. Appellant stated that when he entered informant’s vehicle, there was a black “Hard Rock” bag

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on the passenger seat, which he picked up without knowing what was inside. Appellant testified that he never saw any drugs in the vehicle and never attempted to purchase cocaine.

The jury found appellant guilty of trafficking in cocaine. The trial court sentenced him to eight years imprisonment. On appeal, appellant argues that one comment made by the prosecutor in his opening statement created reversible error. In relevant part, the prosecutor’s opening statement was as follows:

Yes, through the help of [informant], the sheriff’s office, through DEA we’re selling a quarter kilogram of cocaine to a man that was readily in the business of buying it. And readily in the business of buying it from [informant] for a fairly lengthy period of time and he got caught.

And, yes, [informant], you’re going to hear he’d (sic) a convicted felon. Yes, you’re going to hear a convicted drug trafficker from his case in Palm Beach County. Yes, you’re going to hear that he was facing a thirty year prison sentence with a fifteen year minimum mandatory and he worked for over a year with the DEA to make bunch of cases to work himself out of a jam. And eventually the Palm Beach County State Attorney’s Office convicted him of that crime, drug trafficking, and gave him a — a five year probationary sentence for all the cases that he had worked on. You’re going to hear that he’s currently still on supervision for that case out of Palm Beach County.

And you’ll hear that I had nothing to do with that case relating to — I wasn’t his prosecutor. I’m a Broward County Prosecutor; wasn’t involved in the decision of that sentence. Wasn’t involved in, you know, monitoring his probation currently or any of that other scenario. I guess somebody in my position in Palm Beach County is doing that.

But this case was made in Broward. It was the only case made in Broward; dropped in my lap to prosecute. So, therefore, folks, I ask you: judge his credibility, judge all the witnesses’ credibility, listen to the phone conversations, watch the tapes, listen to all the evidence, don’t make any fixed opinions, and when you come back and you hear everything — when you hear everything — [informant], the police, the films, the tapes, photos — then get together and

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make a collective decision on what the truth is about that circumstance of how that case came to be developed on October 23rd [objection by counsel] —about what actually happened on October 23, 2003 and make your decision after the close of all the evidence. Thank you.”

(Emphasis added.)

At that point, at sidebar, appellant’s attorney made his motion for mistrial, stating “the prosecutor said the jury should make a decision as to what’s the truth. That is, per se, a mistriable comment. The jury is not here to decide what the truth is of the matter. The jury is here solely to determine whether or not the State has proven its case beyond a reasonable doubt.”

Immediately after the motion was denied, appellant’s counsel gave the defense opening statement, starting with a direct response to the prosecutor’s comment about the jury’s job of judging the credibility of witness informant. The defense opening statement focused on explaining to the jury why it should not believe informant’s testimony. Defense promised the jury that the defendant would testify to a different version of the events and urged the jury to believe appellant over informant. Defense concluded that appellant would tell them “what actually occurred” and explained to the State’s burden of proof:

You’ll hear, and you’ll hear it from the judge, that the State has the burden of proving everything beyond a reasonable doubt. We went through this yesterday. . . .

When you hear the evidence, and you hear all the evidence, and you consider it in conjunction with the instructions of the court and what we talked about yesterday, that it’s always the State’s burden and even the defendant’s testimony only becomes part of what is the State’s evidence to make that determination that the case has been proven beyond a reasonable doubt. When that is all done the verdict that will be returned, ladies and gentleman, as I give this to you is not guilty. Thank you.

A trial court’s decision as to whether to grant a motion for mistrial is reviewed for abuse of discretion. Freeman v. State, 1 So. 3d 373, 377 (Fla. 5th DCA 2009). The power to declare a mistrial should be exercised with care and caution and only in cases of absolute necessity. Id. “[A]

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mistrial should only be declared if `the error is so prejudicial and fundamental that it denies the accused a fair trial.’” Lubin v. State, 754 So. 2d 141, 143 (Fla. 4th DCA 2000) (citing Buenoano v. State, 527 So. 2d 194, 198 (Fla. 1988)).

We find that the trial court did not abuse its discretion in denying defendant’s motion for mistrial because the State’s single reference to “the truth” in opening statement neither insinuated that defendant needed to prove anything, nor invited the jury to convict the defendant for a reason other than the State proving defendant’s guilt by evidence beyond a reasonable doubt.

Appellant relies on our opinion in Northard v. State, 675 So. 2d 652 (Fla. 4th DCA 1996). In that case, we held that a comment made by the prosecutor in opening statement, together with another comment made in closing argument, constituted reversible error because the remarks, considered together, invited the jury to convict the defendant for a reason other than his guilt of the crimes charged. In Northard, during opening statement, the State told the jury: “The State is confident that after you review all the evidence that will be presented to you during this trial, you will deliberate and come back with a verdict, a verdict that simply reflects the truth; that the defendant in this case was caught redhanded.” (Emphasis added.)

In its closing the State argued:

If you believe the defendant’s events (sic) the police cannot be telling you the truth, and you’ve got to decide if that’s what they did and they got up here and deliberately fabricated evidence and fabricated testimony for you in order to convict this guy. In order to find him not guilty you’re going to have to believe that. And that’s what your verdict, in order to find him not guilty you’re going to have to believe that the defendant was telling the truth and the officer was lying. . . .

(Emphasis added.)

Those two comments together, each of which specifically instructed the jury how to reach its verdict, improperly stated the legal burden of proof. Considered in context, these two comments together suggested that the jury should reach its verdict based solely on a determination of who was lying and who was telling the truth.

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On the other hand, the prosecutor in the case at bar properly discussed the jury’s obligation to determine the credibility of the witnesses’ testimony and did not suggest any improper basis for reaching a verdict. There was no suggestion that the jurors’ determination of who was telling the truth should be the sole basis for the jury’s verdict. The appellant’s reliance on our opinion in Paul v. State, 980 So. 2d 1282 (Fla. 4th DCA 2008), is likewise misplaced. In that case, the State explicitly and improperly shifted the burden of proof by telling the jury during closing argument that “[t]he State has the burden of proving all of these elements beyond a reasonable doubt. And if [the defense attorney] wants to present theories of how she believes this case should play out, there’s got to be some level of proof that Mr. Laboy was lying.” (Emphasis in original.)

In Gibbs v. State, 193 So. 2d 460 (Fla. 2d DCA 1967), the Second District held that comments made by the judge to the jury panel during voir dire in a first degree murder case were improper because the limited explanation of how jurors were to reach a verdict could have resulted in a juror voting to convict the defendant solely because the juror felt that the defendant, in truth, committed the offense, even though his guilt may not have been proven to the exclusion of every reasonable doubt. The Gibbs court found that even these improper comments from the bench constituted reversible error only when considered in combination with other legal errors, including the court’s overruling defendant’s proper objection to a witness giving his opinion about the guilt of the accused. The court explicitly held that the judicial comments during voir dire, standing alone, did not constitute reversible error.

Such comments must be considered in the context of the entire trial. In the instant case, the prosecutor made one reference to “the truth” in opening statement, in the context of a discussion of the credibility of witness informant. Informant and the appellant were expected to, and did, give conflicting versions of the relevant events. It was not improper to utter the word “truth” in the context of the jury’s role as factfinder, particularly where, as here, the comment was immediately followed by a clear explanation of the State’s burden of proof in the defense opening statement, and the jury was properly instructed on the State’s burden of proof by the judge at the conclusion of the case.

We hold that neither the word “truth” nor the topic of witness credibility is prohibited in a criminal trial in proper context.

Affirmed.

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STEVENSON and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

TED DUNLAP, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1004.

District Court of Appeal of Florida, Fourth District.

October 28, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Joel T. Lazarus, Judge, L.T. Case No. 03-17796 CF10A.

Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.

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

LUCY CHERNOW BROWN, Associate Judge.

We affirm the trial court’s final judgment adjudicating appellant guilty of trafficking in cocaine. We write to explain our determination of the first issue raised by appellant. Appellant argues the trial court reversibly erred by denying his motion for mistrial which was based solely on one comment made by the prosecutor during opening statement. Appellant asserts the comment improperly instructed the jury to reach its verdict based on “the truth,” rather than on proof beyond a reasonable doubt. We disagree and examine the comment in context.

During October, 2003, Agent Chris Hunt of the Drug Enforcement Agency (DEA) worked with an informant to investigate appellant. The informant had been charged with drug trafficking several months earlier. Facing thirty years imprisonment and a fifteen-year mandatory minimum sentence, informant chose to work with law enforcement as a cooperating source. Because of his cooperation in several cases informant was ultimately sentenced to five years probation.

At trial, informant testified that he had been selling drugs to appellant on a weekly basis for approximately one year. A few months after informant’s arrest, informant saw appellant at Cheers bar in Ft. Lauderdale. Appellant gave informant his business card and informant said he would call appellant in a few days to arrange the sale of nine ounces of cocaine. Agent Hunt and Detective Pat Fletcher, of the Broward Sheriff’s Office, recorded a conversation between appellant and informant on October 21, 2003, in which appellant told informant that he could give informant $1,000 any time, and informant replied that he

Page 2

would get appellant “a nine” and appellant would owe him the remaining $3,500. Informant testified that “a nine” referred to nine ounces of cocaine.

On October 22nd, another telephone conversation was recorded in which appellant called informant to tell him he had $1,000 and informant responded that it would have to wait one day because informant had not yet seen his source.

On October 23rd, appellant met informant at Bru’s Room in Pompano Beach. Informant was sitting in his car in the parking lot. Informant’s car had been equipped with video recording equipment. Appellant approached the vehicle and told informant that he had left the money at home, and asked whether he could take “it” and bring the money back. Informant told appellant that he would wait there for appellant to return with the money, and appellant did return in ten minutes with $1,000. Informant counted the money and opened the glove box containing the cocaine. Appellant took the cocaine from the glove box and put it in a black “Hard Rock” bag. As appellant exited the vehicle, police surrounded and arrested him. A videotape of the transaction and the audio tapes of the recorded telephone conversations were introduced into evidence.

The testimony of both Agent Hunt and Detective Fletcher corroborated informant’s account of the events leading up to appellant’s arrest. Fletcher testified that he monitored and recorded the telephone conversation of October 21st. Fletcher explained that the lab tech at the Sheriff’s office packaged the cocaine in a gallon zip lock baggie and that he placed the baggie in the glove box. Fletcher testified that he searched informant’s vehicle before and after the meeting between appellant and informant and that the black “Hard Rock” bag had not been in the vehicle during either search.

Appellant took the witness stand to testify to his own version of the events. Appellant testified that he had previously lent a number of expensive tools to informant and that informant still had his tools. According to appellant, when the two met at Cheers in October, 2003, informant told appellant that informant had been in legal trouble and had no money, reminding appellant that appellant still owed him $4,500 dating back to the time when they had lived together. According to appellant’s testimony, appellant then offered to give informant $1,000 and informant agreed to return appellant’s tools. The two agreed to meet at Bru’s Room to exchange the tools and money. Appellant stated that when he entered informant’s vehicle, there was a black “Hard Rock” bag

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on the passenger seat, which he picked up without knowing what was inside. Appellant testified that he never saw any drugs in the vehicle and never attempted to purchase cocaine.

The jury found appellant guilty of trafficking in cocaine. The trial court sentenced him to eight years imprisonment. On appeal, appellant argues that one comment made by the prosecutor in his opening statement created reversible error. In relevant part, the prosecutor’s opening statement was as follows:

Yes, through the help of [informant], the sheriff’s office, through DEA we’re selling a quarter kilogram of cocaine to a man that was readily in the business of buying it. And readily in the business of buying it from [informant] for a fairly lengthy period of time and he got caught.

And, yes, [informant], you’re going to hear he’d (sic) a convicted felon. Yes, you’re going to hear a convicted drug trafficker from his case in Palm Beach County. Yes, you’re going to hear that he was facing a thirty year prison sentence with a fifteen year minimum mandatory and he worked for over a year with the DEA to make bunch of cases to work himself out of a jam. And eventually the Palm Beach County State Attorney’s Office convicted him of that crime, drug trafficking, and gave him a — a five year probationary sentence for all the cases that he had worked on. You’re going to hear that he’s currently still on supervision for that case out of Palm Beach County.

And you’ll hear that I had nothing to do with that case relating to — I wasn’t his prosecutor. I’m a Broward County Prosecutor; wasn’t involved in the decision of that sentence. Wasn’t involved in, you know, monitoring his probation currently or any of that other scenario. I guess somebody in my position in Palm Beach County is doing that.

But this case was made in Broward. It was the only case made in Broward; dropped in my lap to prosecute. So, therefore, folks, I ask you: judge his credibility, judge all the witnesses’ credibility, listen to the phone conversations, watch the tapes, listen to all the evidence, don’t make any fixed opinions, and when you come back and you hear everything — when you hear everything — [informant], the police, the films, the tapes, photos — then get together and

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make a collective decision on what the truth is about that circumstance of how that case came to be developed on October 23rd [objection by counsel] —about what actually happened on October 23, 2003 and make your decision after the close of all the evidence. Thank you.”

(Emphasis added.)

At that point, at sidebar, appellant’s attorney made his motion for mistrial, stating “the prosecutor said the jury should make a decision as to what’s the truth. That is, per se, a mistriable comment. The jury is not here to decide what the truth is of the matter. The jury is here solely to determine whether or not the State has proven its case beyond a reasonable doubt.”

Immediately after the motion was denied, appellant’s counsel gave the defense opening statement, starting with a direct response to the prosecutor’s comment about the jury’s job of judging the credibility of witness informant. The defense opening statement focused on explaining to the jury why it should not believe informant’s testimony. Defense promised the jury that the defendant would testify to a different version of the events and urged the jury to believe appellant over informant. Defense concluded that appellant would tell them “what actually occurred” and explained to the State’s burden of proof:

You’ll hear, and you’ll hear it from the judge, that the State has the burden of proving everything beyond a reasonable doubt. We went through this yesterday. . . .

When you hear the evidence, and you hear all the evidence, and you consider it in conjunction with the instructions of the court and what we talked about yesterday, that it’s always the State’s burden and even the defendant’s testimony only becomes part of what is the State’s evidence to make that determination that the case has been proven beyond a reasonable doubt. When that is all done the verdict that will be returned, ladies and gentleman, as I give this to you is not guilty. Thank you.

A trial court’s decision as to whether to grant a motion for mistrial is reviewed for abuse of discretion. Freeman v. State, 1 So. 3d 373, 377 (Fla. 5th DCA 2009). The power to declare a mistrial should be exercised with care and caution and only in cases of absolute necessity. Id. “[A]

Page 5

mistrial should only be declared if `the error is so prejudicial and fundamental that it denies the accused a fair trial.’” Lubin v. State, 754 So. 2d 141, 143 (Fla. 4th DCA 2000) (citing Buenoano v. State, 527 So. 2d 194, 198 (Fla. 1988)).

We find that the trial court did not abuse its discretion in denying defendant’s motion for mistrial because the State’s single reference to “the truth” in opening statement neither insinuated that defendant needed to prove anything, nor invited the jury to convict the defendant for a reason other than the State proving defendant’s guilt by evidence beyond a reasonable doubt.

Appellant relies on our opinion in Northard v. State, 675 So. 2d 652 (Fla. 4th DCA 1996). In that case, we held that a comment made by the prosecutor in opening statement, together with another comment made in closing argument, constituted reversible error because the remarks, considered together, invited the jury to convict the defendant for a reason other than his guilt of the crimes charged. In Northard, during opening statement, the State told the jury: “The State is confident that after you review all the evidence that will be presented to you during this trial, you will deliberate and come back with a verdict, a verdict that simply reflects the truth; that the defendant in this case was caught redhanded.” (Emphasis added.)

In its closing the State argued:

If you believe the defendant’s events (sic) the police cannot be telling you the truth, and you’ve got to decide if that’s what they did and they got up here and deliberately fabricated evidence and fabricated testimony for you in order to convict this guy. In order to find him not guilty you’re going to have to believe that. And that’s what your verdict, in order to find him not guilty you’re going to have to believe that the defendant was telling the truth and the officer was lying. . . .

(Emphasis added.)

Those two comments together, each of which specifically instructed the jury how to reach its verdict, improperly stated the legal burden of proof. Considered in context, these two comments together suggested that the jury should reach its verdict based solely on a determination of who was lying and who was telling the truth.

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On the other hand, the prosecutor in the case at bar properly discussed the jury’s obligation to determine the credibility of the witnesses’ testimony and did not suggest any improper basis for reaching a verdict. There was no suggestion that the jurors’ determination of who was telling the truth should be the sole basis for the jury’s verdict. The appellant’s reliance on our opinion in Paul v. State, 980 So. 2d 1282 (Fla. 4th DCA 2008), is likewise misplaced. In that case, the State explicitly and improperly shifted the burden of proof by telling the jury during closing argument that “[t]he State has the burden of proving all of these elements beyond a reasonable doubt. And if [the defense attorney] wants to present theories of how she believes this case should play out, there’s got to be some level of proof that Mr. Laboy was lying.” (Emphasis in original.)

In Gibbs v. State, 193 So. 2d 460 (Fla. 2d DCA 1967), the Second District held that comments made by the judge to the jury panel during voir dire in a first degree murder case were improper because the limited explanation of how jurors were to reach a verdict could have resulted in a juror voting to convict the defendant solely because the juror felt that the defendant, in truth, committed the offense, even though his guilt may not have been proven to the exclusion of every reasonable doubt. The Gibbs court found that even these improper comments from the bench constituted reversible error only when considered in combination with other legal errors, including the court’s overruling defendant’s proper objection to a witness giving his opinion about the guilt of the accused. The court explicitly held that the judicial comments during voir dire, standing alone, did not constitute reversible error.

Such comments must be considered in the context of the entire trial. In the instant case, the prosecutor made one reference to “the truth” in opening statement, in the context of a discussion of the credibility of witness informant. Informant and the appellant were expected to, and did, give conflicting versions of the relevant events. It was not improper to utter the word “truth” in the context of the jury’s role as factfinder, particularly where, as here, the comment was immediately followed by a clear explanation of the State’s burden of proof in the defense opening statement, and the jury was properly instructed on the State’s burden of proof by the judge at the conclusion of the case.

We hold that neither the word “truth” nor the topic of witness credibility is prohibited in a criminal trial in proper context.

Affirmed.

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STEVENSON and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

ANTHONY BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-4121.

District Court of Appeal of Florida, Fourth District.

October 28, 2009.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Edward A. Garrison, Judge, L.T. Case No. 502006CF002474AXXXMB.

Carey Haughwout, Public Defender, and Ian Seldin, 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.

TAYLOR, J.

The issue in this appeal is whether the trial court erred in applying the 1.5 multiplier for the presence of a child under sixteen when sentencing the defendant for domestic aggravated battery, where the information failed to set forth the facts or statutory authority for such sentence enhancement. We find no error and affirm.

During the evening hours of February 13, 2006, Cassandra Krause entered her neighbors’ house through their laundry room and screamed for help. Her neighbors, Laurie and George Hussar, saw that Cassandra’s mouth was swollen, her shirt was stained with blood, and her left arm was injured. She was hysterical and crying. Cassandra told Laurie that the defendant, who was her boyfriend and the father of her children, had hit her. She also complained that the children were in the house at the time. Laurie promptly called 911.

George went to check on the children and saw Cassandra’s car heading down the street. He followed the car for several miles to make sure the children were not in the car and called the police. After determining the kids were not in the car, George returned home to find an ambulance taking Cassandra to the hospital.

Deputy Lerner testified that he responded to Laurie’s 911 call and that Cassandra was distraught and visibly shaken when he met with her. She had blood on her face and was clutching her red and swollen arm while she screamed and cried. Cassandra told the deputy that the

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defendant, her live-in boyfriend, beat her, threatened to kill her, and then fled the residence and stole her vehicle.

The defendant was charged by information with domestic aggravated battery (Count I) and domestic aggravated assault with a deadly weapon (Count II). Count I cited the applicable aggravated battery statute, section 784.045(1)(a)1 and 2, Florida Statutes (2006), but it made no statutory or factual references regarding the defendant’s commission of the aggravated battery in the presence of a child.

At trial, Cassandra testified that on the day of the incident she and the defendant had gotten into an argument. While she was seated in a chair, the defendant came up to her and started hitting her in the head with his fists. Next, he threw a shoe at her, striking her in the head. He repeatedly hit her until she fell to the floor and then kicked her. When Cassandra tried to get away from the defendant, he followed her to the other side of the house, pushed her, and continued to beat her. The defendant repeatedly threatened to kill Cassandra. Although she could not recall at trial whether he had a knife, in earlier statements made shortly after the incident, she said that he grabbed a knife from the kitchen and said he was going to slit her throat with it. The defendant forced Cassandra to clean up the blood from the floor, and she eventually fled to her neighbors’ house.

Cassandra’s three-year-old son and four-month-old daughter were in the house at the time of the attack. Cassandra was struck in front of the infant, who was seated in a carrier on top of the kitchen counter. Deputy Lerner confirmed that after speaking with Cassandra, he went over to her house, where he found the children alone. One child was in a carrier on top of the kitchen counter, and the other child was asleep in his bedroom.

The jury found the defendant guilty as charged of aggravated battery, and guilty of assault, a lesser included offense of domestic aggravated assault. The jury also made a finding on a verdict interrogatory that the battery and assault occurred in the presence of a child under sixteen years of age.

According to the Criminal Punishment Code (CPC) scoresheet, the defendant’s sentencing points totaled 77. The state requested that an aggravator of 1.5 be applied to the defendant’s sentence because the offenses occurred in front of children. After the 1.5 multiplier for domestic violence was applied, the total points increased to 115.5. This resulted in the lowest permissible prison sentence of 65.625 months.

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The trial court sentenced the defendant to time served on the assault count. On the aggravated battery count, the trial court utilized the multiplier and sentenced the defendant to eight years in prison with credit for time served. The defendant filed a Rule 3.800(b)(2) motion to correct sentencing error, which we deem denied in the absence of a timely ruling on the motion.

The defendant argues that, because the state failed to plead the sentencing enhancement in the criminal information, his due process rights were violated when the trial judge utilized the enhancement during sentencing. The state correctly counters that “not every fact with a bearing on sentencing must be alleged in the charging document”; instead, the charged facts must only make the defendant aware of the heaviest punishment he may face. The state further points out that “the presence of a child under the age of sixteen” was not an element of the offense, and thus did not need to be alleged in the information.

Under Florida Rule of Criminal Procedure 3.704(d)(23)(2006),

[i]f the primary offense is a crime of domestic violence as defined in section 741.28, Florida Statutes, which was committed in the presence of a child under 16 years of age who is a family household member as defined in section 741.28(2) with the victim or perpetrator, the subtotal sentence points are multiplied by 1.5.

“Domestic violence” means any assault or aggravated battery “resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. A “family or household member” includes “persons who are parents of a child in common regardless of whether they have been married.” § 741.28(3), Fla. Stat. (2006).

The purpose of a criminal information is “to fairly apprise defendant of the offense with which he is charged.” Leeman v. State, 357 So. 2d 703, 705 (Fla. 1978) (citation omitted). Additionally, “[a]n information must allege each of the essential elements of a crime to be valid.” State v. Dye, 346 So. 2d 538, 541 (Fla. 1977). As the Second District explained:

It remains true—and of salient significance for the instant case—that “not all facts affecting the defendant’s punishment are elements,” and therefore that not “every fact with a bearing on sentencing must be found by a jury,” or alleged in the charging instrument.

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Rogers v. State, 963 So. 2d 328, 334-35 (Fla. 2d DCA 2007) (quoting Harris v. United States, 536 U.S. 545, 549 (2002) and Jones v. United States, 526 U.S. 227, 248 (1999)).

In support of his contention that the information should have included the facts necessary to sentence him with the domestic violence multiplier, the defendant cites Inmon v. State, 932 So. 2d 518 (Fla. 4th DCA 2006) (holding that reference in the information to the statute authorizing twenty-year minimum mandatory sentence was insufficient to provide notice to defendant that he was charged with discharge of a firearm where information alleged only that defendant “carried” a firearm, and statute also contained other provisions, including ten-year minimum mandatory sentence for possession of a firearm).

Inmon, however, involved sentencing under the 10/20/life statute, section 775.087(2), Florida Statutes, and is distinguishable from this case because “[t]he factors relevant to sentencing under various versions of section 775.087(2) have been treated as `essential elements’” of the crime charged. Rogers, 963 So. 2d at 335 (citing Jackson v. State, 852 So. 2d 941, 943 (Fla. 4th DCA 2003)). As we explained in Inmon, possessing a firearm carries a different mandatory sentence than discharging a firearm. Thus, how the gun was used during the commission of a crime is an essential element of the crime under the statute.

Here, the defendant was charged with domestic aggravated battery in violation of section 784.045(1)(a), Florida Statutes. A review of that statute shows that the presence of a child under the age of sixteen is not an element of the offense or a part of the essential facts constituting the charged offense. It is a sentencing factor, rather than an element of the crime, which did not increase the penalty for the crime beyond the prescribed statutory maximum and, as such, did not need to be alleged in the information. As the Harris Court explained:

Yet not all facts affecting the defendant’s punishment are elements. After the accused is convicted, the judge may impose a sentence within a range provided by statute, basing it on various facts relating to the defendant and the manner in which the offense was committed. Though these facts may have a substantial impact on the sentence, they are not elements.

Harris, 536 U.S at 549.

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Applying the domestic violence multiplier is akin to assessing victim injury points on CPC scoresheets. It is well-settled, for instance, that penetration need not be alleged in the information charging lewd and lascivious battery in order to enhance a sentence with victim injury points; penetration is not an element or functional equivalent of an element of that offense. Rogers, 963 So. 2d at 336. Rather, penetration is a “circumstance” that supports the imposition of a sentence within the statutory range and authorized by a jury finding. Id. Similarly, the presence of a child is not an element but a circumstance which permits a greater sentence within the statutory range. The information set forth all the essential elements for aggravated battery and, thus, satisfied due process notice requirements by making the defendant “aware of the `heaviest punishment’” he faced if convicted. See Harris, 536 U.S at 562.

Because the trial court properly considered the domestic violence multiplier when determining the defendant’s guidelines sentence range and sentenced the defendant within the fifteen-year statutory maximum for aggravated battery, we affirm the sentence imposed.

Affirmed.

HAZOURI, J., and BEACH, MARCIA, Associate Judge, concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Shawn Erskine, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-189.

District Court of Appeal of Florida, Third District.

Opinion filed October 28, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Leon M. Firtel, Judge, Lower Tribunal No. 06-29293.

Carlos J. Martinez, Public Defender, and Leslie Scalley (Tampa), Special Assistant Public Defender, for appellant.

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

Before COPE and WELLS, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

This case arose from an incident in which Erskine, driving a car not his own, was pursued by police through the streets of Miami-Dade County, and was apprehended at the end of a foot chase which began after he crashed the vehicle.

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In this appeal, he challenges convictions and sentences after a jury trial for misdemeanor trespass in a conveyance, as a lesser included offense of count I, grand theft of a vehicle, and as charged in the information, count II, fleeing or attempting to elude a law enforcement officer, and count III, resisting an officer without violence.

Considering first the only point which concerns all three convictions, we find no error in the trial judge’s determination that the defense’s challenge of a prospective juror was pretextual in nature. See Braggs v. State, 13 So. 3d 505 (Fla. 3d DCA 2009); Lidiano v. State, 967 So. 2d 972 (Fla. 3d DCA 2007), review denied, 983 So. 2d 1154 (Fla. 2008); Pringle v. State, 792 So. 2d 533 (Fla. 3d DCA 2001), review denied, 817 So. 2d 849 (Fla. 2002).

The conviction for fleeing or attempting to elude in violation of section 316.1935(3), Florida Statutes (2006),¹ however, is reduced to a third degree felony

Page 3

under section 316.1935(1) because, (1) as in Gorsuch v. State, 797 So. 2d 649 (Fla. 3d DCA 2001),² there was no evidence that the police car involved in the chase in question had agency insignia and other jurisdictional markings prominently displayed, as required by section 316.1935(3), see also Jackson v. State, 818 So. 2d 539 (Fla. 2d DCA 2002), and (2) the jury was instructed that the defendant could be convicted of the more serious offense if he attempted to flee after having been

Page 4

stopped as Erskine in fact did, which is not an element of subsection (3), see Anderson v. State, 780 So. 2d 1012 (Fla. 4th DCA 2001), but is encompassed in subsection (1). The cause is remanded for resentencing accordingly. See § 924.34, Fla. Stat. (2006).

No separate error is asserted in the misdemeanor convictions as to counts I and III.

Affirmed as modified, remanded.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. Sections 316.1935(1) and (3), state:

(1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

. . . .

(3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:

(a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, and causes serious bodily injury or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person’s vehicle, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 3 years imprisonment. Nothing in this paragraph shall prevent a court from imposing a greater sentence of incarceration as authorized by law.

2. After Gorsuch was decided, but before the offenses in question occurred on September 1, 2006, the legislature amended subsection (1) to provide that its violation constituted a third degree felony rather than a first degree misdemeanor. Ch. 2004-388, § 1, at 3010, Laws of Fla., effective July 1, 2004.

—————

Courtesy of David Edelstein

FABIAN SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2862.

District Court of Appeal of Florida, Fourth District.

October 28, 2009.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Karen Miller, Judge, L.T. Case No. 200CF007545AXX, 2000CF011011AXX, 2000CF012797AXX, 2003CF003100BXX, 2003CF003237AXX, 2003F009215AXX.

Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

In Case No. 4D07-986, we reversed the summary denial of grounds one and two of appellant’s motion for postconviction relief for either an evidentiary hearing or the attachment of further portions of the record conclusively refuting those grounds for relief. With respect to ground four of his motion, we reversed the summary denial and directed the trial court on remand to correct the sentences imposed in October 2003 in L.T. Case No. 03-9215, and on revocation of probation in L.T. Case Nos. 00-7545, 00-11011, and 00-12797, to reflect that they were to run concurrent with the sentences imposed in June 2003 in L.T. Case Nos. 03-3100 and 03-3237, so that the written sentences would conform to the sentencing judge’s oral pronouncement. Smith v. State, 968 So. 2d 675 (Fla. 4th DCA 2007).

On remand, the trial court held an evidentiary hearing on grounds one and two and denied them; however, the parties agree that the correction of appellant’s sentences was overlooked both by the parties and the trial court.

Accordingly, we affirm the order on appeal, with respect to which appellant raises no issues, but remand for the trial court to comply with our mandate in the prior appeal, Case No. 4D07-986, as it concerns ground four of appellant’s postconviction motion.

Affirmed, But Remanded.

STEVENSON, TAYLOR and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

WILLIE CHEAVES, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-78.

District Court of Appeal of Florida, Second District.

Opinion filed October 28, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Manatee County, Janette Dunnigan, Judge.

Willie Cheaves, pro se.

Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

We reverse and remand appellant’s sentence for rescoring with a corrected guidelines scoresheet because the violation of probation in case number

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95-524F was not before the court for resentencing. See Cheaves v. State, 761 So. 2d 1162 (Fla. 2d DCA 2000) (reciting the offenses in case number 95-3271F to be reconsidered for resentencing pursuant to Heggs v. State, 759 So. 2d 620 (Fla. 2000)). The court shall correct the scoresheet by deleting the point value from the “Release Program Violation” line. See Fla. R. Crim. P. 3.702(d)(1). The court shall forward the corrected scoresheet to the Department of Corrections.

Reversed and remanded, with instructions.

CASANUEVA, C.J., and SILBERMAN and LaROSE, JJ., Concur.

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

Courtesy of David Edelstein

Donell Woods, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-1480.

District Court of Appeal of Florida, Third District.

Opinion filed October 28, 2009.

An appeal conducted pursuant to Anders v. California, 386 U.S. 738 (1967), from the Circuit Court for Miami-Dade County, Beatrice A. Butchko, Judge, Lower Tribunal Nos. 04-21975B, 04-29604B, 04-29629 & 04-29632.

Donell Woods, in proper person.

Bill McCollum, Attorney General, for appellee.

Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

We affirm the revocation of probation and the sentence, but remand for correction of the order revoking probation to add lower court case numbers F04-21975B,

Page 2

F04-29604B, and F04-29632. In addition, the court shall enter sentencing orders in case numbers F04-21975B, F04-29604B, and F04-29629 in accordance with its oral pronouncement. The court shall also enter a corrected sentencing order in case number F04-29632. The sentencing orders shall provide that all of the sentences run concurrently with each other and that the defendant is awarded credit for time served in each of the four cases as ordered at the sentencing hearing.

Affirmed and remanded with directions.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

JAMES SANTIAGO, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-580.

District Court of Appeal of Florida, Fourth District.

October 28, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Robert O. Collins, Senior Judge, L.T. Case No. 02-6672 12.

Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

HAZOURI, J.

James Santiago appeals a final judgment finding him to be a sexually violent predator pursuant to the Sexually Violent Predator Act,¹ also known as the Jimmy Ryce Act. This followed a jury verdict. Santiago argues that the trial court abused its discretion when it failed to permit him to reopen his case so that false testimony presented by the state to demean the credentials of one of Santiago’s experts could be countered and corrected prior to the jury beginning its deliberations. We agree and reverse for a new trial.

Santiago was declared a sexually violent predator in 2002. The jury trial in question occurred in 2007. Its purpose was to determine whether Santiago continued to qualify as a sexually violent predator, i.e., whether he was likely to reoffend should he be released from commitment.

Santiago called Natalie Novack Brown, Ph.D., a clinical psychologist who is licensed in the state of Florida and Washington. She does forensic evaluations at the request of attorneys and on referral from the courts, especially in Seattle. She is a certified sex offense treatment provider in the state of Washington. She was at one time a sexually violent predator evaluator for the State of Florida, Department of Children and Families (DCF), where she did risk assessments. She is also a member of the Association of State and Provincial Psychology Boards (ASPPB), as well as other associations. She has done over 300 risk assessments in the civil commitment context.

Page 2

Dr. Brown performed two evaluations of Santiago. The first was done when she worked for DCF and Santiago was about to leave prison. She found Santiago to be an exhibitionist, having a history of polysubstance dependence, malingering because of his self report of fabricated symptoms of schizophrenia, and antisocial personality disorder. She found paraphilia not otherwise specified. She reevaluated Santiago in 2006. Based upon her reevaluation in 2006, she opined that he was not at risk to recommit sexual violence, nor was there any indication of pedophilia. Dr. Brown was the only expert presented by Santiago who was permitted to give an opinion as to Santiago’s risk for reoffending.

After Santiago’s case had rested, the state recalled forensic psychologist Dr. Amy Swan. During the state’s case, Dr. Swan opined that Santiago was at extremely high risk to reoffend. The state’s purpose for recalling Dr. Swan was to impeach the credentials and credibility of Dr. Brown. Dr. Swan was permitted to testify, over objection, that she was a member of the ASPPB and a delegate from Florida to that Board. She was further permitted to testify over objection that she had never seen Dr. Brown at any of the meetings of this organization and that Dr. Brown was not a member of the organization. Additionally, through the testimony of Dr. Swan, the state introduced into evidence a letter from the ASPPB,² which stated that Dr. Brown was not currently a member of the ASPPB and not a member of the licensing board.

After the jury was instructed, but prior to it retiring for deliberation, outside its presence, the following colloquy took place:

MR. FLEISCHMAN [counsel for Santiago]: This is outside the presence of the jury, just for the record. I just got a call from Natalie Brown. I had left a message on her phone because I knew that she was in flight. She just landed in the Seattle airport. She’s faxing me her membership card³ that’s good

Page 3

through 2008 in the Association of State and Provisional (sic) Psychology Boards showing that she is, in fact, a member contrary to what Dr. Swan alleged, so I’m going to ask the Court, although unusual —

THE COURT: It is unusual. Let me ask the State what they think.

MS. KANNER [counsel for the state]: About what?

THE COURT: I mean, we closed the case, it’s closed, but it’s up to you.

MS. KANNER: Well, what’s he want to do?

THE COURT: He wants to show that she’s qualified because the other woman said she wasn’t; is that correct?

MR. FLEISCHMAN: I mean, basically Dr. Swan is saying she’s out and out lying, that she’s not a member, and it turns out that she is.

MS. KANNER: It’s not really Dr. Swan, it’s the organization is saying she’s not a member. They issued a flat out statement saying that she doesn’t belong to their — the executive officer, that she doesn’t belong to them.

THE COURT: Was that introduced into evidence?

MS. KANNER: Yes.

THE COURT: Okay.

MR. FLEISCHMAN: It’s saying —

THE COURT: Just because she has a card —

MR. FLEISCHMAN: It says: Without more information it’s not possible to estimate whether this Natalie Brown holds — because there may be more than one Natalie Brown, but she’s saying she does hold the certificate. She’s faxing me her membership card.

THE COURT: I think it’s too late to introduce something now, the case is closed.

MS. KANNER: We’ve already charged the jury. I’m uncomfortable allowing more evidence in at this point.

THE COURT: I’m not going to allow it. Unfortunately, I understand it, I sympathize with him, but the jury’s ready to go back there.

MR. FLEISCHMAN: Judge, the only thing that I would, just to make a record, not a reargument —

THE COURT: You can make the record.

MR. FLEISCHMAN: It’s a falsehood. In other words, it’s not true, she is a member of that Board. It leaves the jury — In this case, it’s not just argument, it’s a complete lie. It leaves the jury with a misleading idea that she lied, which is false.

Page 4

THE COURT: What’s your theory now, it’s the end of the case?

MR. FLEISCHMAN: Well, I agree it is unusual. I’ve never had it come up before.

THE COURT: I don’t know how you can introduce — I respect you for what you’re doing. I mean, you’ve got to do everything you can for your client, that’s what I did when I was a lawyer.

MR. FLEISCHMAN: I would ask you to let us reopen for that sole issue, to allow me to introduce it, and if the State wants to reargue any points on it I would have no objection to that, and then to just re-close and allow them to deliberate, barring that I would move for a mistrial also if that’s not allowed.

THE COURT: What’s the mistrial?

MR. FLEISCHMAN: Because they’re saying —

THE COURT: Because you didn’t have the evidence to present at the time; is that what you’re telling me?

MR. FLEISCHMAN: Well, there’s been rebuttal and she was in flight. I left her a message as soon as I learned this was an issue and I think it paints a false picture of Dr. Brown because it’s contrary to what Dr. Swan in this letter — Actually, this letter didn’t say with certainty that she’s not, it actually says, without more information.

THE COURT: They’re going to read the letter.

MR. FLEISCHMAN: But it does paint —

THE COURT: It doesn’t say without certainty. I don’t even think that’s going to influence the case. What do you have to say?

MR. FLEISCHMAN: And I did object to that letter coming in originally.

THE COURT: Well, did I rule on it?

MR. FLEISCHMAN: Yes, you overruled the objection.

MS. KANNER: Hearsay is allowed in these cases, as you well know. Judge, at this juncture and that may be true, but Dr. Brown could have stayed for rebuttal, rebuttal, rebuttal, whatever. I mean, she sat here through all the rest of the trial and was prepared to help Mr. Fleischman through the trial. I don’t know what to tell you, we’ve charged —

THE COURT: Well, you’re objecting to him entering this, the case is finished.

MS. KANNER: Yes. We’ve charged the jury. I think even if we hadn’t charged the jury he might have an argument, but I can’t fathom at this point to reopen the case at this juncture.

Page 5

I mean, but for me correcting that piece of paper and her needing a cigarette they would be back there deliberating.

The trial court denied Santiago’s counsel’s request.

“The decision to reopen a case lies within the discretion of the trial court and will not be disturbed on appellate review absent an abuse of discretion.” Donaldson v. State, 722 So. 2d 177, 181 (Fla. 1998).

Although the decision to allow a case to be reopened involves sound judicial discretion, not usually interfered with on the appellate level, a denial will be reversed where the request is timely made and the jury will be deprived of evidence which might have had significant impact upon the issues to be resolved.

Delgado v. State, 573 So. 2d 83, 86 (Fla. 2d DCA 1990) (citation omitted).

The supreme court held in Donaldson:

Where the case is not technically closed (i.e., counsel have not begun closing argument and the case has not been submitted to the jury), the denial of a defendant’s motion to reopen the case will be reversed if the motion was timely and a proper showing has been made as to why the evidence was omitted. Steffanos v. State, 80 Fla. 309, 86 So. 204 (1920) (holding that the case should be reopened where “the cause ha[s] not proceeded so far that the ends of justice would [be] defeated, or the orderly process of the court disturbed”) . . . .

Donaldson, 722 So. 2d at 181-82 (citations omitted). Steffanos’s holding was in regards to timeliness of a request by the defendant to reopen his case to allow him to present testimony that would prove his innocence. In it the court stated:

The motion was to reopen the case, but the case was not technically closed. The judge had not charged the jury; the counsel had not begun the argument; the case had not been submitted. It had only reached that stage where each party announced that it rested; that there was no more evidence to be introduced. The court then took a recess. Upon convening on Monday following, the motion was made. Whatever delay or confusion may have resulted in the trial of the case by permitting the witnesses to testify might have

Page 6

been fully requited by the establishment of defendant’s innocence, for it was the province of the jury to weigh the evidence introduced and place a value upon its probative force.

Even if the case had been technically closed, it would have been an abuse of discretion to refuse to open the case and permit the evidence to be introduced, upon the proper showing being made as to why it had been previously omitted. See 38 Cyc. 1361.

While the record does not disclose that any showing was made when the motion was submitted, yet the cause had not proceeded so far that the ends of justice would have been defeated, or the orderly processes of the court disturbed, by an admission of the testimony.

The refusal to allow the evidence to be introduced under the circumstances was an abuse of discretion, which was harmful to the defendant, and was therefore error.

Steffanos, 86 So. at 205-06 (emphasis added).

In Silber v. Cn’R Industries of Jacksonville, Inc., 526 So. 2d 974 (Fla. 1st DCA 1988), a civil case, the trial court stated the following principle on reopening cases:

As a general rule, the trial court has broad discretion to allow a party to reopen its case and present additional evidence, whether it does so after a party rests, after the close of all evidence, or even after having directed a verdict for one party; and such ruling by the trial court, absent a showing of abuse of discretion, will not be overturned on appellate review. Indeed, it may even amount to an abuse of discretion not to permit a party to reopen its case in some circumstances. But the trial court’s discretion is not unlimited, for it may allow reopening only “where this can be done without injustice to the other party.”

Id. at 978 (citations omitted).

The circumstances in this case establish a proper basis for presenting additional evidence due to the state’s presentation of evidence that misled the jury as to the credibility of Santiago’s expert witness who

Page 7

testified to his progress from a high risk sexual predator to one of low risk. To permit the state to impugn the credentials and credibility of Santiago’s only expert witness on the issue of his likelihood to reoffend in the manner in which it was done in this case is an abuse of discretion. We cannot consider this harmless error. To further compound the error, the state, in its final argument, told the jury Dr. Brown lied. “She stood here and lied to you, and if you have any questions about that listen to the transcript. She told you she was on that Board and she clearly isn’t, it’s the tip of the iceberg.” We, therefore, reverse and remand for a new trial.

Santiago asserts two other points on appeal. We find it unnecessary to address these two issues because we are reversing and remanding for a new trial.

Reversed and Remanded.

FARMER and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. §§ 394.910-394.932, Fla. Stat. (2007).

2. The letter introduced was from Stephen T. DeMers, an executive officer of the ASPPB sent to “to whom it may concern” and stated: “[t]o the best of our knowledge and information, Natalie Brown from Florida is not currently an individual member of ASPPB, nor a member of an ASPPB member licensing board. Without more information it is not possible to ascertain whether this Natalie Brown holds, or has ever held a Certificate of Professional Qualification (CPQ) from ASPPB.”

3. The faxed card is the Certificate of Professional Qualification in Psychology for Natalie J. Novick-Brown which would expire on 4/11/2008, after the trial was held.

—————

Courtesy of David Edelstein

ROBERT NELSON BALDWIN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-2296.

District Court of Appeal of Florida, First District.

Opinion filed October 27, 2009.

An appeal from the Circuit Court for Bay County, Michael C. Overstreet, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

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

PER CURIAM.

Robert Nelson Baldwin, challenges his conviction and sentence for lewd and lascivious molestation of a child less than twelve years of age. We affirm all issues on appeal, and write only to address Appellant’s argument that the trial court lacked jurisdiction when the case was tried.

Prior to trial, Appellant moved in limine to exclude the testimony of certain collateral witnesses. The trial court granted the motion and excluded the witnesses

Page 2

from testifying in the State’s case-in-chief. The court orally granted a continuance when the prosecutor stated his intent to “appeal” the ruling. This court treated the State’s “Notice of Interlocutory Appeal” as a petition for a writ of certiorari, granted the writ, and found that the trial court failed to make inquiries into reasonable alternatives prior to imposing a categorical exclusion. See State v. Baldwin, 978 So. 2d 807, 809 (Fla. 1st DCA 2008). After this court’s opinion issued, but prior to the issuance of the mandate, Appellant’s trial commenced and he was found guilty as charged. The trial court imposed Appellant’s sentence after the mandate issued.

Appellant argues that any action taken by an appellate court divests the lower tribunal of jurisdiction until the appellate court’s mandate is issued. The issue of jurisdiction is strictly a legal one. Therefore, this court reviews the trial court’s jurisdiction de novo. Jacobsen v. Ross Stores, 882 So. 2d 431, 432 (Fla. 1st DCA 2004). Here, the State sought review of a non-final order with what this court treated as a petition for writ of certiorari. The filing of a petition for writ of certiorari involving a non-final order invokes this court’s original jurisdiction. Fla. R. App. P. 9.030. In such instances, a lower court retains “continuing jurisdiction to enter all orders, including the final order disposing of the case, unless the appellate court has entered a stay or an order that otherwise prevents further action. . . .” Philip J. Padovano, Florida Appellate Practice §1.6 (Thomson West 2009).

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See also Fla. R. App. P. Rule 9.130(f). Here, no such stay or order existed at the time of jury selection, trial, or judgment. Therefore, the trial court retained the necessary jurisdiction to proceed with each phase of trial.

Accordingly, we AFFIRM the trial court’s imposition of judgment and sentence.

WOLF, WEBSTER, and CLARK, JJ., CONCUR.

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

Courtesy of David Edelstein

T. F., A Child, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-2617.

District Court of Appeal of Florida, First District.

Opinion filed October 27, 2009.

An appeal from the Circuit Court for Nassau County, Brian J. Davis, Judge.

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

Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant, T.F., appeals an order of disposition and challenges the trial court’s denial of his motion to withdraw his guilty plea. As the State acknowledges on appeal, the record provides no indication that Appellant was given an opportunity to consult with defense counsel after the trial court stated that

Page 2

it would not accept Appellant’s nolo contendere plea and would only accept a guilty plea as a matter of convenience, to which defense counsel replied, “Yes, your Honor. We’ll enter a plea of guilty to convenience.” See D.V.L. v. State, 693 So. 2d 693, 694 (Fla. 2d DCA 1997) (“When the record fails to reflect a determination by the trial court that the juvenile has entered a plea voluntarily . . . remand is appropriate.”); Richardson v. State, 432 So. 2d 750, 751 (Fla. 2d DCA 1983) (“When a defendant moves to withdraw his plea of guilty, the court should be liberal in exercising its discretion to permit the withdrawal, especially where it is shown that the plea was based on a failure of communication . . . .”).

Accordingly, we reverse the disposition order and remand for further proceedings. See Sanders v. State, 662 So. 2d 1372, 1374 (Fla. 1st DCA 1995) (noting that, on remand, the trial court was free to permit the appellant to withdraw her plea or conduct an evidentiary hearing to develop the facts surrounding the entry of the plea).

REVERSED and REMANDED for further proceedings.

WEBSTER, DAVIS, and PADOVANO, JJ., CONCUR.

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

Courtesy of David Edelstein