Florida Criminal Law Opinions

TYRONE DUPREE, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-3973.

District Court of Appeal of Florida, First District.

Opinion filed October 27, 2009.

An appeal from the Circuit Court for Leon County, Richard O. Watson, Judge,

Nancy A. Daniels, Public Defender and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General; Giselle Denise Lylen and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.

PER CURIAM.

Appellant seeks review of an amended judgment and sentence which lists his second-degree misdemeanor for driving while license suspended or revoked as a first-degree misdemeanor. Appellant raised this issue in a motion filed pursuant to

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Florida Rule of Criminal Procedure 3.800(b)(2). The trial court eventually granted the motion but outside of the 60-day time period permitted by rule 3.800(b)(2)(B). The court granted the motion after 117 days had elapsed, even counting the granting of the state’s motion for extension to respond. By operation of rule 3.800(b)(2), the motion was deemed denied after 60 days. Therefore, the trial court was without jurisdiction to enter the second amended judgment and sentence.

Accordingly, we quash the second amended judgment and sentence as entered without jurisdiction. We affirm the amended judgment and sentence but remand to the trial court to correct the scrivener’s error by second amended judgment and sentence once jurisdiction returns to the trial court. The state properly concedes error on the issue of the scrivener’s error. It is not necessary for Appellant to be present in court for the purpose of correcting the error.

VAN NORTWICK and PADOVANO, JJ., and BROWNING, JR., EDWIN B., SENIOR JUDGE, CONCUR.

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

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SHANNON LENARD GREEN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-2533.

District Court of Appeal of Florida, Second District.

Opinion filed October 23, 2009.

Appeal from the Circuit Court for Hillsborough County; Emmett Lamar Battles, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Shannon Lenard Green appeals the revocation of his probation based on the trial court’s findings that he violated conditions 3, 5, 7, and 13 of his probation. We conclude that the evidence presented to the trial court was insufficient to support a

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violation of condition 13, and we remand for the trial court to strike its finding regarding that violation. However, we affirm the revocation of Green’s probation and the resulting sentence based on his violation of conditions 3, 5, and 7.

On remand, the revocation of Green’s probation and his two-year sentence need not be reconsidered because competent, substantial evidence supported the trial court’s findings that Green willfully and substantially violated conditions 3 (prohibiting Green from changing residence without the consent of his supervising officer), 5 (requiring Green to live and remain at liberty without violating the law), and 7 (prohibiting Green from using or possessing illegal drugs), and these violations were sufficient to revoke probation. See, e.g., Miffin v. State, 34 Fla. L. Weekly D1014 (Fla. 2d DCA May 22, 2009) (directing trial court to strike findings that defendant had violated conditions 1, 3, and 10 of probation but affirming revocation and sentences because defendant’s new law violation alone was substantial enough to warrant revocation of probation); Brown v. State, 6 So. 3d 671, 672 (Fla. 2d DCA 2009) (directing trial court to strike violation of condition 2 of probation but affirming revocation and sentence on remaining grounds “because the trial court would have revoked probation based on the new law violation alone”); Matthews v. State, 943 So. 2d 984, 986 (Fla. 2d DCA 2006) (ordering trial court to strike reference to violation of one condition of probation but affirming revocation because defendant’s new law violation “itself was a sufficient basis on which to revoke his probation”); Sprague v. State, 920 So. 2d 1248, 1250 (Fla. 2d DCA 2006) (directing trial court to strike findings of violation of conditions 2 and 9 but affirming revocation based on new law violation); Robinson v. State, 773 So. 2d 566, 567-68 (Fla. 2d DCA 2000) (striking three grounds for revocation of

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probation but affirming revocation where defendant violated condition requiring him to file monthly reports).

Finally, we note that there is an inconsistency between the court’s oral pronouncement and its written revocation order. The transcript of the revocation hearing reflects that the trial court orally found Green in violation of conditions 3, 5, 7, and 13. While the court orally discussed the terms of condition 1, it did not expressly find that condition 1 had been violated. However, the written order revoking probation entered two months after the revocation hearing recited that Green had violated conditions 1, 5, 7, and 13 and made no reference to condition 3. We direct the trial court on remand to amend its written order of revocation to conform to its oral pronouncement. See West v. State, 1 So. 3d 1290, 1291 (Fla. 2d DCA 2009) (remanding case to trial court to correct written revocation order to conform to the court’s oral pronouncement); Sampson v. State, 375 So. 2d 325, 325 (Fla. 2d DCA 1979) (same). Green need not be present when the above-discussed corrections are made.

Affirmed; remanded with directions.

ALTENBERND and WHATLEY, JJ., Concur.

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

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BRADLEY ROBERT KNIGHT, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-1245.

District Court of Appeal of Florida, Fifth District.

Opinion filed October 23, 2009.

Appeal from the Circuit Court for Osceola County, Jon B. Morgan, Judge.

James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

Bradley R. Knight, Wewahitchka, pro se.

Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.

TORPY, J.

Appellant was convicted by jury of four counts of sexual activity with a child. He raises several points on appeal, only one of which requires discussion. He contends that the lower court erred when it admitted a tape recorded conversation between

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Appellant and the victim over his authenticity objection. We conclude that the victim’s testimony was sufficient to authenticate the tape and, accordingly, affirm.

The victim, a fifteen-year-old child, testified that she had engaged in consensual sexual intercourse with Appellant, her karate teacher, on numerous occasions. After she reported the incidents to the police, they supervised a recorded telephone conversation between the victim and Appellant, during which he made admissions. At trial, the State introduced the tape recording through the testimony of the victim. Among other things, she testified that she had participated in a phone conversation with Appellant at the request of police. When shown a tape of the conversation, she confirmed that she had listened to the tape before testifying and that it was a fair and accurate recording of her conversation with Appellant. The tape was admitted over Appellant’s authenticity objection.

Appellant urges that the State failed to establish authenticity because it failed to show that the recording device was operating properly and that it was operated correctly. Appellant finds support for this argument in language from two prior cases from our court: Jackson v. State, 979 So. 2d 1153 (Fla. 5th DCA 2008), and Hernandez v. State, 919 So. 2d 707 (Fla. 5th DCA 2006). In both cases, we set forth a list of predicate facts to authenticate an audio tape. Although we listed the proper operation of the recording device and proper manner of operation as two such facts, this aspect of our discussions was dicta.¹

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The requirement of authenticity is “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” § 90.901, Fla. Stat. (2008). There is no definitive list of requirements that must be met to authenticate an audio tape, even though courts “occasionally” suggest these lists. C. Ehrhardt, Florida Evidence § 401.4 n.2 (2008 ed.). Here, the State, as proponent, claimed that the evidence was a recording of the conversation between the victim and Appellant. The victim testified that she was a participant in the conversation, that she had listened to the tape before trial, that the voices on the tape were Appellant’s and hers and that the tape fairly and accurately memorialized the conversation. No further predicate was necessary under these circumstances. McCoy v. State, 853 So. 2d 396, 404 (Fla. 2003).

Appellant’s other points on appeal are without merit and no further discussion is necessary.

AFFIRMED.

SAWAYA and COHEN, JJ., concur.

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Notes:

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

No. 4D09-316

District Court of Appeal of Florida, Fourth District

October 21, 2009

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Dale C. Cohen, Judge, L.T. Case No. 04-920 CF10A.

Robert Ransone, Florida City, pro se.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Robert Ransone appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief which sought additional presentencing jail credit in this Broward circuit court case. We affirm for reasons other than those given by the State and relied on by the trial court in denying the motion. Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (recognizing that Tipsy Coachman doctrine “allows an appellate court to affirm a trial court that `reaches the right result, but for the wrong reasons’ so long as `there is any basis which would support the judgment in the record’”) (citation omitted).

We write to clarify two prior decisions of this court, Barrier v. State, 987 So. 2d 772 (Fla. 4th DCA 2008), and Trout v. State, 927 So. 2d 1052 (Fla. 4th DCA 2006). In addition, we certify conflict with Tharpe v. State, 744 So. 2d 1256 (Fla. 3d DCA 1999).

Facts

On August 3, 2004, Ransone was convicted of Grand Theft in Broward County circuit court case number 04-00920CF10A. He was placed on one year of community control followed by three years of probation. On October 20, 2004, a warrant alleging a violation of community control (VOCC) issued. On December 27, 2004, Ransone was arrested in Miami-Dade County on numerous unrelated charges. Ransone alleges that he was arrested on the Broward warrant the following day.

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Ransone remained incarcerated in a Miami-Dade jail and was found guilty of the Miami-Dade charges on March 27, 2006. He was sentenced to “time served” for those offenses. On April 5, 2006, he was transported to the Broward County Jail to face the charges in this case. On June 16, 2006, after a hearing, the court revoked community control and sentenced Ransone to five years in prison with credit for 84 days spent in jail before sentencing in this case. The trial court did not make this sentence concurrent with any other sentence. At sentencing, despite Ransone’s assertion that he had been arrested on the Broward warrant in December 2004, the trial court judge expressed a desire that Ransone not receive credit towards this offense for the time spent in jail on the unrelated Miami-Dade charges.

Ransone then filed a postconviction motion through counsel which argued that he was in fact arrested on the Broward warrant in December 2004 while in the Miami-Dade County Jail, and that Ransone was entitled to credit from this date. Counsel attempted to obtain records from Miami-Dade county authorities to verify this allegation but was unsuccessful. The motion was denied based on a booking record and teletype information which indicated that the Miami-Dade authorities had merely placed a hold on Ransone. This court affirmed on appeal. Ransone v. State, 981 So. 2d 1218 (Fla. 4th DCA 2008).

After this court had affirmed, Ransone attempted to supplement the record with an arrest affidavit which he had recently obtained from Miami-Dade police which supports his allegation that he was actually arrested on the VOCC warrant in December 2004. A member of Ransone’s family was able to obtain the record. This court denied the motion to supplement the record without prejudice for Ransone to seek appropriate postconviction relief in the trial court. Ransone then filed the instant postconviction motion which was denied based on the State’s response which contended that the claim was barred as successive and that the arrest affidavit did not actually show that the warrant was executed.

Analysis

Ransone has argued that pursuant to Travis v. State, 724 So. 2d 119 (Fla. 1st DCA 1999), and Martinez v. State, 940 So.2d 1277 (Fla. 4th DCA 2006), he is entitled to credit from the date he was arrested on the VOCC warrant in this case. Ransone’s case is distinguishable from the above cases which involved concurrent sentencing. We conclude that the sentence Ransone received in the Broward case is consecutive to the Miami-Dade sentences, and thus, he is not entitled to additional credit.

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The Broward case was unrelated to the Miami-Dade charges and was charged in a separate information. When the trial court sentenced Ransone, it did not indicate that the sentence would be concurrent with any other sentences. The court did not have a reason to do so because the Miami-Dade sentences had been completed. Nevertheless, because this case was charged separately from the Miami-Dade cases, by operation of statute, the Broward sentence was consecutive to the Miami-Dade sentences. § 921.16(1), Fla. Stat. (2004) (providing: “Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently”). See also State v. Matthews, 891 So. 2d 479, 481 (Fla. 2004) (explaining that, pursuant to section 921.16(1), because the trial court did not specify that a sentence was concurrent, a sentence for violation of probation was automatically structured to run consecutive to the sentence on an unrelated new offense committed while defendant was on probation). This conclusion is buttressed by common sense in that the Miami-Dade “time served” sentences were completed before the sentence was imposed in this unrelated case.

The Third District Court of Appeal reached a different conclusion in Tharpe v. State, 744 So. 2d 1256 (Fla. 3d DCA 1999). In that case, the Court found that a previously-completed sentence was in “reality” concurrent with a sentence imposed following revocation of community control in an unrelated case. 744 So. 2d at 1257. The Court concluded, “The reality is that the defendant served his Miami-Dade County time concurrently with the Monroe County community control.” Id. This conclusion conflicts with section 921.16(1) which provides that, unless a trial court specifies otherwise, sentences imposed on offenses charged in separate charging documents are consecutive.

As the Third District noted in Tharpe, we recognize that, because Ransone received time served on the Miami-Dade cases and those sentences were completed before he was sentenced in Broward, the Broward trial judge had no reason to decide whether the sentence following revocation of the community control was concurrent or consecutive with the Miami-Dade sentences. In this situation, a trial court may have discretion to award credit from the date of execution of its warrant. See Kronz v. State, 462 So. 2d 450, 451 (Fla. 1985) (holding that trial court has discretion to award jail credit for time spent in jail in another state awaiting transfer to Florida). Nevertheless, pursuant to section 921.16(1), the sentence on the unrelated case is consecutive not concurrent. This credit is not mandatory in this situation. The record clearly establishes that the trial court judge would not have granted the

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credit which Ransone seeks. At sentencing, the judge was asked and agreed to consider granting credit from the date Ransone alleged he was arrested on the warrant. Ultimately, the court declined to do so.

Ransone is not entitled to credit from the date of his arrest on the VOCC warrant in this case because the sentence he received was consecutive, not concurrent, with the Miami-Dade sentences. The time he spent jailed in Miami-Dade was not attributable to this unrelated Broward case. In fact, the Miami-Dade jail time constituted the sentence, i.e., the punishment, which Ransone received for the numerous offenses he committed in Miami-Dade. If this credit is pyramided and also credited towards the Broward case, then Ransone would receive no punishment for the Miami-Dade offenses beyond the sanction he received for violating his community control in the Broward case. A prolific criminal would benefit from his mobile recidivism.

A defendant is entitled to credit for time served in jail before sentencing. § 921.161(1), Fla. Stat. (2004). This statute is easy to apply when a single offense is involved. When a defendant is held for multiple offenses, however, applying this statute becomes more complicated. If concurrent sentences are imposed on multiple offenses, then jail time must be credited for the time awaiting sentencing as to each concurrent sentence. Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986). In this situation, the defendant can be considered to be in presentencing custody on multiple offenses simultaneously. When consecutive sentences are imposed, a defendant must be given jail credit only on the first of the consecutive sentences. Barnishin v. State, 927 So. 2d 68, 71 (Fla. 1st DCA 2006). When consecutive sentences are involved, a defendant is not considered to be jailed for multiple offenses simultaneously. See id. Such pyramiding of credit would reward the recidivist criminal. See id.

The Florida Supreme Court in Daniels recognized that its holding was limited to concurrent sentencing:

We distinguish this situation from one in which the defendant does not receive concurrent sentences on multiple charges; in such a case the defendant “is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.”

Daniels, 491 So. 2d at 545 (citations omitted) (emphasis in original).

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In Trout v. State, 927 So. 2d 1052, 1054 (Fla. 4th DCA 2006), this court found that a defendant who had been held on multiple unrelated charges was entitled to additional jail credit and stated “[a] defendant is entitled to jail credit for time spent in a county jail when he has been arrested pursuant to a warrant from another county.” This is true, however, only where concurrent sentences are imposed. This court also invoked this language in Barrier v. State, 987 So. 2d 772, 773 (Fla. 4th DCA 2008), and both these decisions appear to implicitly follow the holding of Tharpe in presuming that a completed sentence on a separately-charged offense was concurrent with a sentence imposed following revocation of a form of community supervision in an unrelated case. Barrier and Trout do not discuss whether the sentences were concurrent or consecutive.

We clarify Barrier and Trout which imply that credit must be awarded when a foreign county’s warrant is executed, regardless of whether concurrent or consecutive sentences are imposed, and certify conflict with Tharpe which we believe conflicts with the requirements of section 921.16(1), Florida Statutes. Pursuant to Daniels, a defendant who is held on multiple offenses is entitled to jail credit from the date of arrest on a foreign county’s warrant only where concurrent sentences are imposed or where the foreign county’s warrant is the sole basis for the defendant’s incarceration. Neither situation is presented here.

The parties in this case have operated under the assumption that Ransone would be entitled to additional credit if he was arrested on the VOCC warrant in December 2004 as alleged in the motion. The State has maintained that Ransone was merely held pursuant to a detainer and not arrested on the warrant. See Gethers v. State, 838 So. 2d 504, 508 (Fla. 2003) (holding that placement of a detainer is not equivalent to “transmittal” or “execution” of an arrest warrant and that a defendant is not entitled to jail credit when authorities merely place a hold or detainer against a defendant unless the hold or detainer is the sole basis for defendant’s incarceration).¹

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Ransone was eventually able to obtain an arrest affidavit that supports his contention that he was arrested on the VOCC warrant in December 2004. The State argued that this successive motion was procedurally barred, while Ransone argued that his claim was permissible as it was based on newly-discovered evidence, i.e., the recently-obtained arrest affidavit. See Rivera v. State, 995 So. 2d 191, 195 (Fla. 2008) (explaining that “[t]he bar against successive motions can be overcome if the movant can show that the grounds asserted were not known and could not have been known to the movant at the time of the previous motion”).

Regardless of whether the arrest affidavit constituted newlydiscovered evidence that could not have previously been discovered with the exercise of due diligence, and regardless of whether the VOCC warrant was “transmitted” or “executed” within the meaning of Gethers, Ransone is not entitled to additional credit in this case.

We have observed that “a defendant is entitled to credit for each day in jail attributable to the charge for which a sentence is pronounced.” Gethers v. State, 798 So. 2d 829, 831 (Fla. 4th DCA 2001) (emphasis added). Jail credit should not have a metaphysical credit value dependent on the number of cases a mobile, prolific offender has pending around the state. Id.

The time Ransone spent in jail from December 2004 until his Miami-Dade cases were resolved in April 2006 was not attributable solely to the charges in this Broward case. His sentence in this Broward case is consecutive to the sentences he received in the Miami-Dade cases, and he did not establish that he is entitled to additional credit.

Finally, we note that the power to determine sentence is the exclusive province of the judiciary. McNeil v. Canty, 12 So. 3d 215, 217 (Fla. 2009) (recognizing that “[s]entencing is a power, obligation, and prerogative of the courts” and that a result which allows another branch of government

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to determine a sentence would be unconstitutional) (citation omitted). In the context of jail credit issues, it is important to keep in mind that the trial court retains the exclusive power to determine the sentence. While credit must be granted for time spent in jail before sentencing where a defendant is held on multiple charges simultaneously and concurrent sentences are imposed, a trial court has the power to make its sentence consecutive and thereby decide that a defendant should not receive pyramided credit.

Sentencing law is often exceedingly complex and the case law regarding jail credit is often difficult to apply which in turn interferes with a trial court’s exercise of its sentencing discretion. The law should be clarified and a bright-line rule adopted, so trial court judges, when exercising their sentencing discretion, are aware of precisely how much jail credit a defendant will receive towards the sentence imposed.

Affirmed.

POLEN, TAYLOR and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Tulio Arias, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-331.

District Court of Appeal of Florida, Third District.

Opinion filed October 21, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Dava J. Tunis, Judge. Lower Tribunal No. 05-22972.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

Before COPE, GERSTEN and SUAREZ, JJ.

COPE, J.

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This is an appeal of a conviction of manslaughter. The question is whether the trial court erred in excluding evidence from the medical examiner that the victim had alcohol and cocaine in his blood at the time of the shooting. We remand for a new trial.

I.

Defendant-appellant Tulio Arias lived in an apartment complex and parked his car in the parking lot. The defendant works as a security guard and is licensed to carry a firearm. At approximately 10:00 p.m. the defendant went down to his car with his ten-year-old disabled daughter and daughter’s friend. He planned to leave the children with a relative and then go to work.

The defendant found that a car had been illegally parked behind his vehicle, so that the defendant was unable to leave. The defendant knocked on several doors in the apartment complex, trying to find out who was blocking him in. When these inquiries were unsuccessful, the defendant called a tow truck. The illegally parked car was owned by the victim, Eduardo Otero-Garriga. He was visiting in another apartment in the complex and saw the tow truck preparing to tow away his car. The victim came downstairs and talked the tow truck driver out of towing the car.

When the victim determined that the defendant was the one who had called the tow truck, the victim made derogatory remarks. Further words were exchanged.

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The defendant testified that the victim appeared to be under the influence of alcohol and cocaine, and was acting irrationally. The defendant stated that the victim used a phrase in Spanish which meant that he (the victim) was threatening to kill the defendant.

The defendant told the victim that he was armed and to stay away. The defendant drew his gun and loaded it with an ammunition clip. The defendant testified that he did this in the belief that if the victim saw the loaded firearm, the victim would back away.

Instead, the victim threw his glasses down, ripped his shirt off, and started to hit his chest while telling the defendant to shoot him. The victim then ran toward the defendant and the defendant shot him seven times, killing him immediately. The defendant then called the police and fire rescue.

In connection with the autopsy, the medical examiner found that the victim had a blood alcohol level of .21. He had traces of cocaine in his blood and cocaine metabolites. According to the medical examiner, this meant that the victim had likely consumed cocaine within the ten previous hours, maybe less.

The State charged the defendant with first-degree murder. The defendant claimed self-defense. Prior to trial, the State filed a motion in limine seeking to exclude “[a]ny mention of the fact that the Deceased had alcohol or cocaine or cocaine metabolites in his body at the time of his autopsy.” The State argued that

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“[t]he Defendant and the Deceased were unknown to each other and the Defendant had no knowledge of the Decedent’s alcohol and drug use, and thus [the] evidence had no bearing on the Defendant’s state of mind.” The trial court granted the motion.

II.

We first consider whether the State opened the door to the admission of toxicology evidence when it cross-examined the defendant. Having successfully excluded the toxicology evidence, the State then impeached the defendant’s testimony because he was not a toxicologist. The following transpired:

Q. You testified on direct examination that you know how somebody acts when they are under the influence of cocaine, they act a certain way?

A. That is correct.

Q. Are you a toxicologist?

A. No. I’m a security officer for 16 years.

Q. Okay. You are not a toxicologist?

A. No. I don’t do toxicology exams to everybody on the street.

Q. Do you know what toxicologist is?

A. Yes.

Q. What is toxicologist?

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A. It’s one who studies and does testing to see if a person is intoxicated or not.

Q. Okay.

Had you conducted studies to see what the effects are when somebody is under the influence of cocaine?

A. In a very mild way but it is something that is taught in the security training courses.

Q. So in the security training mildly, they teach you if somebody does what if they’re under the influence of cocaine?

A. That is correct but it’s the 16 years experience that has taught me.

Q. 16 years experience of dealing with people who are under the influence of cocaine?

A. Many occasions, yes.

Q. And these are people that you went back and verified that they were in fact under the influence of cocaine?

A. Those are people who I confirm because of the places where I work that they have been doing cocaine. I saw them. I didn’t have to go back and confirm. I saw them doing the drugs.

Q. But you didn’t see Eddie doing any cocaine that night. You had never seen him?

A. No.

Q. Not at all?

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A. No. Correct.

Q. When you testified to the ladies and gentlemen of the jury that he was acting crazy like on cocaine, that’s just your assumption; is that correct, Mr. Arias?

A. It’s correct.

After the cross-examination, the defense argued that the State had opened the door to the toxicology evidence and that the defense should be allowed to introduce that evidence. The request was denied.

This court has said:

The prosecutor’s use of the privilege of nondisclosure, first as a shield, then as a sword, unfairly prejudiced the defendant. While the State is free to argue to the jury any theory of a crime that is reasonably supported by evidence, it may not subvert the truth-seeking function of a trial by obtaining a conviction or sentence based on the obfuscation of relevant facts.

Gonzalez v. State, 774 So. 2d 796, 798 (Fla. 3d DCA 2000); see Garcia v. State, 622 So. 2d 1325, 1331 (Fla. 1993); Villella v. State, 833 So. 2d 192, 197 (Fla. 5th DCA 2002).

In this case the toxicology results showed that the victim had a .21 blood alcohol level, traces of cocaine in the blood, and cocaine metabolites. The State successfully kept the jury from hearing the toxicology results. On cross-examination, the State then attacked the defendant’s lay observations of the victim’s intoxication on the theory that the defendant was not a qualified

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toxicologist. Further, the State’s parting shot was to make it appear that the defendant’s testimony that the victim “was acting crazy like on cocaine” was just an assumption. Of course, the State knew that the toxicology results (excluded on the State’s motion) confirmed the defendant’s observations. This cross-examination was totally improper. Because this cross-examination deprived the defendant of a fair trial, we must reverse for a new trial.

III.

We presume that on remand the State will not repeat the same error. At the retrial, therefore, there should be no issue of door-opening.

The next question to be considered is whether the trial court erred in entering the order in limine. We conclude that, so long as the defendant takes the stand and testifies to his observation of the intoxication of the victim, the toxicology results are admissible.

A.

The parties have relied on cases decided under subparagraph 90.404(1)(b)1., Florida Statutes (2007).¹ That part of the Evidence Code addresses the circumstances under which evidence may be offered “of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait[.]” According to Professor Ehrhardt, “The conduct of the victim is

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material under the substantive criminal law only in a few situations. The most common situation is when the defense asserts that the accused acted in self-defense.” Charles W. Ehrhardt, Ehrhadt’s Florida Evidence, § 404.6 at 207 (2009) (footnote omitted).

One circumstance in which “evidence of the victim’s violent or aggressive character is admissible . . . is to prove that the accused was reasonably apprehensive of the victim and that the defensive measures of the accused were reasonable.” Id. at 209. “In this situation, the evidence is being offered to prove the defendant’s state of mind, that is, the reasonableness of the defendant’s belief concerning imminent danger, rather than the conduct of the victim.” Id. at 209-10.

For example, in Diaz v. State, 747 So. 2d 1021 (Fla. 3d DCA 1999), the defendant, victim, and two other men were drinking beer together. The defendant testified that he knew the victim had a reputation for violence when intoxicated, and that he perceived the victim was intoxicated. Id. at 1024. The evidence regarding this trait of the victim’s character—a reputation for violence when intoxicated—was admissible because the victim knew of that character trait and perceived that the defendant was intoxicated.

The Diaz case is not squarely applicable here. In the present case, the defendant had never seen the victim before. He had no knowledge of the victim’s reputation or propensity for violence in general, or when intoxicated. The defense

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in this case did not seek to introduce any character or reputation evidence regarding the victim.

The Diaz case is, however, instructive on one point. In Diaz, the defense sought to introduce the toxicology results for the decedent, which indicated that the victim had a blood alcohol level of .21 at the time of death. Id. at 1023. This court said that it was permissible for the defense to offer the toxicology evidence in the defendant’s case in chief. That was so because “[t]he medical examiner’s toxicological findings served . . . to confirm the defendant’s perception that the victim was, in fact, intoxicated.” Id. at 1024.²

Turning now to the present case, the defendant took the stand and testified that the victim was behaving erratically, threatened to kill him, and appeared to be intoxicated and under the influence of cocaine. Assuming that the defendant again takes the stand and so testifies at retrial, the toxicology findings will then be admissible “to confirm the defendant’s perception that the victim was, in fact, intoxicated.” Id. See also Warren v. State, 577 So. 2d 682, 684 (Fla. 1st DCA 1991) (“A homicide defendant is afforded wide latitude in the introduction of

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evidence supporting his self-defense theory. Where there is even the slightest evidence of an overt act by the victim which may be reasonably regarded as placing the accused apparently in imminent danger of losing his life or sustaining great bodily harm, all doubts as to the admissibility of evidence bearing on his theory of self-defense must be resolved in favor of the accused.”) (citation omitted). The toxicology evidence comes in because it is relevant evidence, and not under any theory of admissibility of character evidence under subparagraph 90.404(1)(b)2., Florida Statutes (2007).

For the stated reasons, the conviction is reversed and the case remanded for a new trial.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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Ricardo Jose Davila, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-2103.

District Court of Appeal of Florida, Third District.

Opinion filed October 21, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Israel Reyes, Judge. Lower Tribunal No. 00-21978.

Ricardo Jose Davila, in proper person.

Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

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

COPE, J.

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This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Defendant-appellant Davila was convicted of thirty counts of aggravated child abuse, one count of child neglect, one count of child abuse, and three counts of kidnapping. His direct appeal was affirmed in Davila v. State, 829 So. 2d 995 (Fla. 3d DCA 2002).

The defendant filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court entered an interlocutory order denying some of the claims and ordering the State to file a supplemental response on other claims. The State filed its supplemental response. A successor judge entered an omnibus order denying all of the claims.¹ By motion for rehearing, the defendant raised additional claims, which were also denied. The defendant has appealed.

The defendant argues that the three counts of kidnapping must be vacated. He maintains that as a matter of law, a parent cannot be convicted of kidnapping

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his own child. That is the general rule. Johnson v. State, 637 So. 2d 3, 4 (Fla. 3d DCA 1994). In this case the defendant is the father of the child at issue, and there was no order which had deprived the defendant of his custody rights.

We have recognized an exception, however, to the general rule where the parent “does not simply exercise his rights to the child, but takes her for an ulterior and unlawful purpose which is specifically forbidden by the kidnapping statute itself.” LaFleur v. State, 661 So. 2d 346, 349 (Fla. 3d DCA 1995). The Second District disagrees with this court on this issue. Muniz v. State, 764 So. 2d 729, 731 (Fla. 2d DCA 2000); cf. Andre v. State, 13 So. 3d 103, 105 (Fla. 5th DCA 2009) (fundamental error to convict child’s father of aggravated false imprisonment where there was no testimony that the child’s custodian, her godmother, had legal custody or guardianship). Stated differently, if this case were pending in the Second District, then the defendant would be entitled to relief on the kidnapping issue. Accordingly we follow LaFleur and certify direct conflict with Muniz.²

The defendant argues alternatively that there is a double jeopardy violation. At the time of the charged crimes, the child who was the victim of the child abuse was under age thirteen. Under the kidnapping statute, the kidnapping offense is

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enhanced from a first-degree felony punishable by life imprisonment, to a life felony, where the kidnapping victim is a child under the age of thirteen and the defendant commits aggravated child abuse on that child. § 787.01(2), (3), Fla. Stat. (2000).³ The defendant argues that it is prohibited to convict him of aggravated child abuse and then use the same acts of aggravated child abuse to enhance the kidnapping charge from a first-degree felony punishable by life imprisonment, to a life felony. The postconviction record now before us does not conclusively refute this claim. See Fla. R. App. P. 9.141(b)(2)(D). We therefore reverse this part of the trial court’s order and remand for further proceedings. If, in fact, the same acts that were the basis of the aggravated child abuse convictions also form the basis for enhancement of the kidnapping convictions, then the defendant is entitled to relief. See Ramirez v. State, 928 So. 2d 420, 421 (Fla. 3d DCA 2006); Bradham v. State, 657 So. 2d 40, 41 (Fla. 1st DCA 1995); see also Cleveland v. State, 587 So. 2d 1145, 1146 (Fla. 1991); Finkley v. State, 34 Fla. L. Weekly D 1890 (Fla. 4th DCA Sept. 16, 2009). In that event, the State will have the option to delete the enhancement on the kidnapping convictions, thus reducing the convictions to a first-degree felony punishable by life imprisonment, or

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alternatively, strike the aggravated child abuse convictions that form the basis for the enhancement.⁴

The defendant claims a double jeopardy violation involving kidnapping in counts forty-three through forty-five, and counts thirty-seven through thirty-nine. It does not appear that this claim was addressed. Accordingly we remand for further proceedings on that issue.

The defendant alleges that his trial counsel specifically conceded the defendant’s guilt on multiple counts at trial, without his consent. In its response in the trial court, and in this court, the State concedes that the defendant is entitled to an evidentiary hearing on this issue. We remand for that purpose.

The defendant maintains that it was a double jeopardy violation to charge him with multiple acts of aggravated child abuse occurring over a six-month period. We reject the defendant’s argument. See Overway v. State, 783 So. 2d 373, 373-74 (Fla. 5th DCA 2001); see also State v. Meshell, 2 So. 3d 132, 135 (Fla. 2009); McKnight v. State, 906 So. 2d 368, 370-72 (Fla. 5th DCA 2005); Marion v. State, 674 So. 2d 878, 879 (Fla. 3d DCA 1996).

We affirm regarding the remaining issues on appeal.

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

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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RAMON PEREZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1173.

District Court of Appeal of Florida, Fourth District.

October 21, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Stanton S. Kaplan, Judge, L.T. Case No. 98-16151 CF10.

Ramon Perez, Orlando, pro se.

Bill McCollum, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, J.

In this appeal, Ramon Perez challenges the trial court’s “dismissal” of his postconviction claim that his scoresheet erroneously included “severe” victim injury points for one of the victims of his crimes despite an agreement that the victim injury points for both victims would be scored as “moderate.” We agree that the trial court erred in failing to consider the merits of Perez’s claim and reverse the order appealed.

Perez was convicted for the 1998 offenses of attempted first degree murder (count I), aggravated battery with a firearm (count II), and improper exhibition of a firearm (count III). These convictions were affirmed on appeal. Perez v. State, 816 So. 2d 642 (Fla. 4th DCA 2002). In 2003, following postconviction proceedings, Perez was resentenced to 16.875 years for counts I and II and to time served for count III. In 2007, Perez filed a petition for writ of habeas corpus, raising a number of challenges to his sentence. In its response, the State argued that Perez’s petition was properly treated as a rule 3.800(a) motion, as the time for the filing of a 3.850 motion had long passed, and that Perez was entitled to no relief. The trial court denied Perez’s petition for the reasons cited in the State’s response.

At the time the trial court signed the order of denial, it was unaware that Perez had filed a “reply” to the State’s response. In that “reply,” among other things, Perez asserted for the first time that all the parties had agreed to score the victim injury points for both victims as “moderate,” that page sixty-seven of the sentencing transcript would support his claim of such agreement, that the scoresheet used at the

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April 2003 resentencing had assessed “moderate” victim injury points for one victim and “severe” victim injury points for the other, and that the error in scoring the injury to one of the victims as “severe” had resulted in the erroneous inclusion of an additional twenty-two points on his scoresheet. The trial court entered an order “dismissing” Perez’s reply, finding that even if the “reply” were treated as a motion for rehearing, such reply simply re-argued the claims. Perez has appealed, challenging only the trial court’s “dismissal” of his claim regarding the victim injury points.

The erroneous assessment of victim injury points is a cognizable claim under rule 3.800(a), provided the error is apparent from the face of the record. See, e.g., Chapman v. State, 885 So. 2d 475, 476 (Fla. 5th DCA 2004). There is no prohibition to the filing of successive rule 3.800(a) motions so long as the merits of the issue presented have not previously been addressed, and no time limit on the filing of rule 3.800(a) motions exists. See Fla. R. Crim. P. 3.800(a) (providing for the filing of such motion at “any time”); State v. McBride, 848 So. 2d 287, 291 (Fla. 2003) (recognizing successive motions may be filed, but defendant may not raise the same issue multiple times). Thus, while Perez did not raise the issue concerning the assessment of victim injury points until the filing of his “reply,” the trial court nonetheless should have ruled on the merits of the claim, as it had not been raised in petitions before the court and nothing in the record before the court demonstrated that Perez had previously raised the claim in some other filing.

Further, we cannot agree with the State’s suggestion that Perez’s claim is necessarily without merit. The scoresheet utilized at the April 2003 resentencing and the April 2003 sentencing order are among the documents attached to the petition and response. When Perez was resentenced in April 2003, the scoresheet included fifty-eight victim injury points. With the assessment of these fifty-eight points, Perez’s recommended sentence was 184 prison months. Absent written reasons for departure, his minimum permissible sentence was 121.5 months and his maximum sentence 202.5 months (16.875 years). See §§ 921.0014, 921.0016, Fla. Stat. (1997). The trial court imposed the 16.875-year maximum guidelines sentence.

When considering a defendant’s entitlement to relief for a scoresheet error raised in a 3.800(a) motion, the “could have been” standard applies, i.e., “if the trial court could have imposed the same sentence using a correct scoresheet, [then] any error [i]s harmless” and the defendant is entitled to no relief. Brooks v. State, 969 So. 2d 238, 243 (Fla. 2007). Here, had “moderate” victim injury points been assessed for both victims,

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Perez’s recommended sentence would have been 140 months. And, absent a departure, his minimum permissible sentence would have been 105 months and his maximum permissible sentence 175 months (14.583 years). Thus, the 16.875 years actually imposed by the trial court could not have been imposed by the trial court under the corrected scoresheet unless the trial court imposed an upward departure sentence with the accompanying written reasons. Under such circumstances, if established, the alleged scoresheet error requires correction and resentencing. See Hoag v. State, 12 So. 3d 907, 908 (Fla. 2d DCA 2009) (reversing denial of 3.800(a) motion and noting that “[w]hen a defendant is sentenced to the maximum guidelines sentence, a scoresheet error that improperly adds sentencing points to the total requires resentencing using a corrected scoresheet”).

Accordingly, we reverse the order dismissing Perez’s claim alleging error in the assessment of “severe” victim injury points for one of the victims and remand the case to the trial court for consideration of the merits of the claim. If the court finds the claim is properly denied, it must attach to the order of denial those record portions conclusively refuting the claim. See Joseph v. State, 13 So. 3d 540, 541 (Fla. 3d DCA 2009); Thompson v. State, No. 4D08-3537, 2009 WL 996409, at *1 (Fla. 4th DCA Apr. 15, 2009).

Reversed and Remanded.

GERBER, J., and BROWN, LUCY CHERNOW, Associate Judge, concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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JOHN KITCHEN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-143

District Court of Appeal of Florida, Fourth District

October 21, 2009

Appeal of order denying rule 3.800 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Sandra K. McSorley, Judge, L.T. Case No. 1996CF007585AXX.

John Kitchen, Carabelle, pro se.

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

PER CURIAM.

John Kitchen appeals an order summarily denying his motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(a). He seeks additional jail time credit for time spent in the county jail pending resentencing in his case.

In 1997, Kitchen was sentenced to forty years in prison as a violent career criminal with a thirty-year mandatory minimum. The trial court gave a credit for 348 days served in the county jail prior to sentencing. As a result of a partially successful postconviction relief motion pursuant to rule 3.850, Kitchen was resentenced to fifteen years in prison as a habitual violent felony offender, with a ten-year mandatory minimum, nunc pro tunc to the date of the original sentence. The court gave the same 348 days of jail credit, plus “ALL DOC CREDIT.”

In this motion to correct a sentencing error, Kitchen claims he was entitled to 769 days of jail time credit, maintaining that the trial court did not grant him jail credit for time spent in county jail from September 27, 2000, through May 21, 2001, pending resolution of his postconviction relief motion and his resentencing. Some of the time claimed includes time spent in county jail after resentencing but prior to his transfer to the Department of Corrections.

Section 921.161, Florida Statutes,¹ provides as follows:

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(1) A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

(2) In addition to other credits, a person sentenced to imprisonment in custody of the Department of Corrections shall receive credit on her or his sentence for all time spent between sentencing and being placed in custody of the department.

(Emphasis added). The statute requires the trial court to determine and give credit for all time spent in county jail prior to sentencing and for the Department to calculate the time after sentencing, including time in the county jail after sentencing. Kitchen claims that the trial court did not order credit for the county jail time served prior to resentencing, and awarding “all DOC credit” does not include the county jail time.

The state concedes that a prisoner is entitled to credit for jail time spent prior to resentencing. See Smith v. State, 691 So. 2d 606 (Fla. 4th DCA 1997); Brown v. State, 584 So. 2d 209 (Fla. 1st DCA 1991); Franklin v. State, 515 So. 2d 400, 401 (Fla. 1st DCA 1987). In accordance with the statute, the trial court must specifically state that time in the sentence. The trial court’s mere reference to ALL DOC CREDIT does not include the time spent in county jail prior to resentencing. Only that portion of jail time spent between the resentencing and transfer of custody to the DOC is part of the credit DOC must allow. See § 921.161(2), Fla. Stat.

We reject the state’s contention that the motion is insufficient for failing to identify where in the record evidence of entitlement to additional credit would be found, as defendant provided the dates of his incarceration in the county jail. Thomas v. State, 634 So. 2d 175, 177 (Fla. 1st DCA 1994) (“Generally, a rule 3.800(a) motion for award of jailtime credit is deemed facially sufficient when the defendant provides the commencement date of the sentence against which credit is due, together with the dates for which jail-time credit is claimed.”); Hidalgo v. State, 729 So. 2d 984 (Fla. 3d DCA 1999) (reversing in part denial of motion for jail time credit, and holding trial court should have consulted jail record,

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as well as court file, to determine if defendant was entitled to additional credit).

Accordingly, to the extent Kitchen’s motion sought pre-sentencing jail time credit, we reverse the denial and direct the trial court on remand to grant him additional jail time credit for the time spent in county jail before (but not after) his resentencing.

Reversed in part and remanded.

WARNER, FARMER and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

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Courtesy of David Edelstein

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DONALD E. ADAIR, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. 4D09-782

District Court of Appeal of Florida, Fourth District

October 21, 2009

Petition seeking belated appeal to the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Susan Lebow, Judge, L.T. Case No. 04-16550 CF10.

Donald E. Adair, Indiantown, pro se.

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

PER CURIAM.

We deny this petition seeking a belated appeal of the trial court’s May 22, 2008 order denying petitioner, Donald Adair’s motion for postconviction relief. In his petition, Adair alleged under oath that he did not receive the trial court’s order within the time for filing a notice of appeal. The State was ordered to show cause as to why the petition should not be granted. In its response, the State provided a copy of the prison mail log, which showed that Adair received legal mail from the judge on May 29, 2008. We thereafter ordered the circuit court to appoint a commissioner to determine whether Adair received the order within the time for filing a notice of appeal. Additionally, we asked the commissioner to consider whether Adair filed a falsified document in this court. Svoboda v. State, 932 So. 2d 545 (Fla. 5th DCA 2006) (sanctioning petitioner who made false allegations in a petition for belated appeal).

At an evidentiary hearing, the trial judge’s judicial assistant testified that she stapled the order denying the motion to the State’s response and mailed it to Adair. The mailroom supervisor at the prison testified that staples are not removed from legal mail unless the prisoner is in the psychiatric ward. Adair was not in the psychiatric ward when he signed for this mail on May 29, 2008. The prison opens mail and flips through it in the prisoner’s presence to check for contraband.

Adair produced as his Exhibit 1 an envelope containing a copy of the State’s response and the attached exhibits. The envelope was postmarked May 23, 2008 and marked with the judge’s return address.

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Adair testified that this was all he received on May 29, 2008. He admitted that the jail did not remove the staple from his mail. The State’s response was bound to the attachments by a heavy duty stapler. The judicial assistant testified that she does not have a heavy duty stapler in her office, and that she stapled the order of denial to the top page of the State’s response. The State’s response had additional staple holes beyond the heavy duty staple. Adair gave no explanation for the additional staple holes.

The commissioner found that Adair received a copy of the order on May 29, 2008 and that he lied under oath in his petition to this court. Adair did not file any objection to the commissioner’s report within the time provided for doing so. We adopt the commissioner’s findings, deny this petition, and refer petitioner for disciplinary procedures.

In denying a petition for belated appeal, the court in Svoboda explained that additional action was needed to preserve the sanctity of court proceedings, stating:

Petitioners should not be allowed to cavalierly lie to this court-it requires this court to order a commissioner’s report, requires the judge to hold a hearing, requires the prisoner’s transportation to this hearing, requires the judge to issue a commissioner’s report, and requires this court to then rule upon that report.

Svoboda, 932 So. 2d at 546; see also Oquendo v. State, 2 So. 3d 1001, 1007 (Fla. 4th DCA 2008) (“Unless a credible threat of sanctions exists, postconviction movants have little incentive against saying whatever they choose in postconviction proceedings, regardless of truth.”).

Accordingly, for the same policy reasons discussed by the Fifth District in Svoboda, we deny this petition and direct that a certified copy of this opinion be forwarded to Martin Correctional Institution for the consideration of disciplinary procedures pursuant to section 944.279(1), Florida Statutes (2008). This is because Adair “knowingly or with reckless disregard for the truth brought false information or evidence before the court.” Id. A copy of the disposition report shall be forwarded to this court, the attorney general’s office, and the hearing commissioner.

HAZOURI, DAMOORGIAN and CIKLIN, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DENISE CARROLL MONEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-1467

District Court of Appeal of Florida, Fourth District

October 21, 2009

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Amy L. Smith, Judge, L.T. Case No. 2004CF002503AXX.

Denise C. Money, Florida City, pro se.

No appearance required for appellee.

PER CURIAM.

Denise Money appeals an order denying her rule 3.850 motion as untimely filed. Appellant filed her original rule 3.850 motion within the two-year time limit, and the motion was dismissed without prejudice to refile the motion within 30 days with a proper oath. She timely refiled the motion with a corrected oath. Months later, beyond the two-year time limit, she filed an amended motion raising additional arguments. The state responded to the original motion and attached records that showed the claims in both motions are without merit. The trial court denied both motions on the merits.

A few days later the court realized that appellant had filed a reply to the state’s response. The reply argued that the state did not address the amended motion. The trial court treated the reply as a motion for rehearing and ordered the state to file a response. In its response the state agreed that the original 3.850 motion was timely but pointed out that the amended motion was not timely filed. The state also addressed the merits of the claims in the amended motion and demonstrated that appellant’s allegations are refuted by the record.

It appears that another judge was assigned to this division. The successor judge entered an order denying both the original and amended motions as untimely filed.

Appellant moved for rehearing. She acknowledged that her amended rule 3.850 motion was untimely, but pointed out that the court had previously found the original motion was timely. She asked the court to

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consider the merits of the original motion. The successor judge denied rehearing.

Appellant is correct that her original rule 3.850 motion was refiled within the time permitted by the trial court and the motion should not have been denied as untimely. However, we affirm because the judge who was previously assigned to this case had already denied the original motion on the merits; the arguments in appellant’s reply, which was treated as a motion for rehearing, did not go to the allegations in her original motion; and the attached records refute her claims.

Contrary to the allegations in appellant’s original rule 3.850 motion, trial counsel was not ineffective for failing to inform her that she could withdraw her plea because the court sentenced her above the negotiated sentence. The plea agreement provided that if she failed to return from furlough the court could sentence her up to the statutory maximum. The plea transcript reflects that appellant understood the terms of the agreement. Appellant had no grounds to move to withdraw her plea after she failed to timely appear for sentencing. At her sentencing hearing, she admitted that during her furlough she had relapsed on cocaine, and she expressly acknowledged that she had no justification or any excuse for failing to appear. Because her ineffective assistance of counsel claim is without merit, we affirm.

Affirmed.

POLEN, HAZOURI and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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