Florida Criminal Law Opinions

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

Case No. 2D08-885.

District Court of Appeal of Florida, Second District.

Opinion filed October 21, 2009.

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

James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

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

ALTENBERND, Judge.

Eric Santiago appeals his judgments of conviction for racketeering and conspiracy to commit racketeering in violation of the Florida RICO Act. See § 895.03(3), (4), Fla. Stat. (2006). We conclude Mr. Santiago was deprived of a fair trial by the presentation, as substantive evidence of guilt, of two convictions later reversed

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on direct appeal. On this issue, we reverse Mr. Santiago’s convictions for racketeering and conspiracy to commit racketeering and remand for further proceedings.¹

In January 2007, the State charged Mr. Santiago and seven other men with racketeering offenses for their involvement in a “criminal street gang,” as defined under section 874.03(1), Florida Statutes (2006). The fourth amended information identified Mr. Santiago in predicate incidents twenty-three through twenty-seven. The charges against Mr. Santiago were severed, and he proceeded alone to a jury trial, which was held from January 14 through January 17, 2008.

During the trial, the State presented evidence of several predicate offenses as part of its required showing that Mr. Santiago had participated in an enterprise (the criminal street gang) through a pattern of racketeering activity. See generally Gross v. State, 765 So. 2d 39, 42 (Fla. 2000) (discussing elements of a crime under Florida’s RICO statute). These predicate incidents included several misdemeanors, three juvenile dispositions, two felony convictions for possessing and concealing firearms, and, most importantly, two convictions for trafficking and possessing narcotics.

The State’s theory at trial, as expressed during closing argument, was that Mr. Santiago’s participation within the street gang made possible his rise from petty criminal to drug trafficker. To prove this theory, the State introduced Mr. Santiago’s written judgments of conviction for trafficking in heroin and possession of a controlled substance (hydrocodone). These offenses are, respectively, first- and third-degree felonies. See §§ 893.13(6)(a), .135(1)(c)(1), Fla. Stat. (2006).

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At the time of the racketeering trial, Mr. Santiago’s two convictions for narcotics offenses were pending on direct appeal in appellate case number 2D07-3631. On October 8, 2008, we reversed these convictions and remanded for entry of judgment and resentencing on a lesser-included possession offense. Santiago v. State, 991 So. 2d 439, 444 (Fla. 2d DCA 2008). In that appeal, we concluded the evidence at trial had failed to establish Mr. Santiago’s constructive possession of the narcotics not found in plain view. Id.

Mr. Santiago’s narcotics convictions, subsequently vacated by this court, were presented to the jury as substantive evidence of his guilt of racketeering and conspiracy to commit racketeering. These convictions, portraying Mr. Santiago as a drug trafficker within the alleged enterprise, became a feature of the trial. Under the circumstances of this case, we conclude the presentation of these now-vacated convictions deprived Mr. Santiago of a fair trial. We therefore reverse Mr. Santiago’s convictions for racketeering and conspiracy to commit racketeering and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA, C.J., and VILLANTI, J., Concur.

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

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Notes:

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Courtesy of David Edelstein

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TROY MCJIMSEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D06-2336.

District Court of Appeal of Florida, Fourth District.

October 21, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Charles M. Greene, Judge, L.T. Case No. 05-4854 CF 10 A.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In McJimsey v. State, 959 So. 2d 1257 (Fla. 4th DCA 2007), we reversed for a new trial, holding that the trial court committed fundamental error when it gave an incorrect self-defense jury instruction on the justifiable use of deadly force. However, our opinion was quashed by the Florida Supreme Court and remanded for reconsideration in light of Martinez v. State, 981 So. 2d 449 (Fla. 2008). State v. McJimsey, 999 So. 2d 1062 (Fla. 2009). In Martinez, the supreme court stated that “it is error for the trial court to read the forcible felony instruction to the jury where the defendant is not charged with an independent forcible felony. However, the erroneous reading of this instruction constitutes fundamental error only when it deprives the defendant of a fair trial.” Martinez, 981 So. 2d at 457 (emphasis in original).

Appellant was charged with armed attempted first-degree murder, to which he asserted a claim of self-defense. Although the trial court erroneously read the forcible-felony portion of the self-defense instruction to the jury, we determine that such error was not fundamental. See Martinez, 981 So. 2d 449; Permenter v. State, 978 So. 2d 277 (Fla. 4th DCA 2008); Farmer v. State, 975 So. 2d 1275 (Fla. 4th DCA 2008), rev. denied, 988 So. 2d 621 (Fla. 2008). A review of the record fails to show that the instruction deprived appellant of a fair trial. Appellant’s claim of self-defense was weak. Appellant received no visible injuries when the victim allegedly bashed his head against the floor in the foyer by the front

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door. He returned to the living area to retrieve his knife and then stabbed the victim on the back of his shoulder and multiple times in the abdomen, with enough force to kill him. The record further shows that the state did not argue the forcible-felony exception to self-defense in its closing argument. We thus affirm appellant’s judgment of conviction and sentence.

Affirmed.

WARNER, TAYLOR and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Christopher Harris, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-185.

District Court of Appeal of Florida, Third District.

Opinion filed October 21, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin, Judge. Lower Tribunal No. 92-41749.

Christopher Harris, in proper person.

Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before COPE, GERSTEN and SUAREZ, JJ.

COPE, J.

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This is an appeal of an order denying a “Request for Inspection of Public Records Pursuant to Government in the Sunshine Law.” We affirm.

On November 12, 2008, defendant-appellant Harris filed a document in the form of a pleading bearing the above title. He filed the pleading in the closed file of his criminal case, Miami-Dade County Circuit Court case number 92-41749. The pleading requested inspection of several documents relating to the defendant’s plea of January 27, 1995.

As the State points out in its response, where the defendant requests public records, the correct procedure is to submit a written request by letter to the agency or agencies from whom the defendant desires to receive the documents. Filing a pleading in the defendant’s original 1992 case does not effectively convey the request for records to the appropriate agency, such as the State Attorney or the Clerk of the Circuit Court. We therefore affirm the order now before us, without prejudice to the defendant to send an appropriate request for public documents to the appropriate agency. Requests of executive branch agencies are governed by chapter 119, Florida Statutes (2008). Payment for copying costs may be required. See Roesch v. State, 633 So. 2d 1 (Fla. 1993); State v. Williams, 678 So. 2d 1356 (Fla. 3d DCA 1996).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Georgina Mathis, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-2627

District Court of Appeal of Florida, Third District.

Opinion filed October 21, 2009.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge. Lower Tribunal No. 06-41946.

Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

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

SCHWARTZ, Senior Judge.

The conviction on appeal for possession with intent to sell cocaine within 1000 feet of a child care facility, as found by the jury, may not stand because the

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court fundamentally erred in omitting that part of the standard jury instruction which concerned the necessity that any possession be “with the intent to sell” the contraband. § 893.13(1)(c)(1), Fla. Stat. (2006). Although the omission was not objected to below, the failure to instruct on an essential element of the offense, which was a hotly disputed issue at trial and resulted in the possibility that the defendant was found guilty of a non-existent offense, “simple possession of contraband within 1000 feet of a child care facility,” mandates reversal. See State v. Delva, 575 So. 2d 643 (Fla. 1991); James v. State, 16 So. 3d 322 (Fla. 4th DCA 2009); Wolfork v. State, 992 So. 2d 907 (Fla. 2d DCA 2008); Castillo v. State, 929 So. 2d 1180 (Fla. 4th DCA 2006); Pratt v. State, 601 So. 2d 619 (Fla. 2d DCA 1992); Mercer v. State, 656 So. 2d 555 (Fla. 1st DCA 1995).

Because the sentence actually imposed — 259 days on probation and 259 days in jail with 258 days of credit for time served — fell within the permissible limits for the third degree felony of simple possession, it is necessary only, as the appellant suggests, to reduce the adjudicated crime to simple possession, of which the jury necessarily found her guilty. A new trial will not be required.

Affirmed as modified.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Hiraldo Valle, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-3020.

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, John Thornton, Judge. Lower Tribunal Nos. 93-19049, 93-13003, 93-36282, 93-14594B, 93-28736, 932-8739, 93-28795, 93-28735.

Julio Ferrer-Roo, for appellant.

Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

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

PER CURIAM.

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This is an appeal of an order denying a combined motion under Florida Rules of Criminal Procedure 3.850 and 3.800(a). We affirm with regard to the first claim but, as conceded by the State, with leave for defendant-appellant Valle to file an amended motion if he has a good faith basis to do so. See Spera v. State, 971 So. 2d 754 (Fla. 2007). The defendant shall file the amended motion, if any, within sixty days after the issuance of this court’s mandate.

With regard to the second claim, the State concedes that the present postconviction record does not conclusively refute the claim. While the State contended in its trial court response that the defendant pled guilty to the offense of kidnapping, not armed kidnapping, neither the State’s trial court response nor the court’s order attached the judgment. Because the postconviction record now before does not conclusively refute the defendant’s claim, see Fla. R. App. P. 9.141(b)(2)(D), we remand for further consideration of the second claim. If the trial court again summarily denies the claim, it shall attach to the denial order the documents which conclusively refute the defendant’s claim.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Edward Alexander Navarro, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-38.

District Court of Appeal of Florida, Third District.

Opinion filed October 21, 2009.

An Appeal from the Circuit Court for Miami-Dade County, John Schlesinger, Judge. Lower Tribunal No. 08-5033B

Gennaro Cariglio Jr., for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.

CONFESSION OF ERROR

ROTHENBERG, J.

The defendant, Edward Alexander Navarro, was charged by Information

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with conspiracy to commit cargo theft over $50,000, a second degree felony; solicitation to commit cargo theft over $50,000, a second degree felony; and conspiracy to deal in stolen property, a third degree felony. The defendant moved to dismiss the Information, asserting that based on the allegations in the Information, the prosecution was commenced beyond the three-year statute of limitations set forth in section 775.15(2)(b), Florida Statutes (2004).

In response, the State argued that the five-year statute of limitations set forth in section 812.035(10) was applicable because it was more specific than the general three-year statute of limitations in section 775.15(2)(b). Section 812.035(10) provides that “a criminal . . . action or proceeding under ss. 812.012-812.037 or s. 812.081 may be commenced at any time within 5 years after the cause of action accrues.” The State reasoned that because section 812.014(2)(a)2 pertains to the theft of cargo valued at $50,000 or more, and section 812.019(1) pertains to dealing in stolen property, the five-year statute of limitations is applicable.

The trial court denied the defendant’s motion to dismiss. Thereafter, the defendant pled guilty to conspiracy to deal in stolen property, reserving his right to appeal the denial of his motion to dismiss, and the State dismissed the two remaining counts. The defendant’s appeal followed.

Based upon the State’s proper confession of error, we find that the five-year

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statute of limitations in section 812.035(10) is inapplicable. Even though the language of section 812.035(10) encompasses the substantive offenses of dealing in stolen property and cargo theft over $50,000, it does not encompass the offenses of conspiracy to deal in stolen property or the solicitation and/or conspiracy to commit cargo theft over $50,000. Rather, as the parties acknowledge, the conspiracy and solicitation charges are violations of section 777.04, which pertains to “Attempts, solicitation, and conspiracy.” Therefore, as the Information was filed beyond the applicable three-year limitations period set forth in section 775.15(2)(b), we reverse the defendant’s conviction and sentence.

Reversed.

Courtesy of David Edelstein

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Cornelius Nelson, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-1209.

No. 3D08-1208.

District Court of Appeal of Florida, Third District.

Opinion filed October 21, 2009.

Appeals under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Stanford Blake and Rosa I. Rodriguez, Judges. Lower Tribunal No. 97-34507-A.

Cornelius Nelson, in proper person.

Bill McCollum, Attorney General, Jill D. Kramer, Assistant Attorney General, for appellee.

Before COPE, GERSTEN, and LAGOA, JJ.

PER CURIAM.

Based upon the State’s confession of error, we reverse both the trial court’s order denying the defendant’s motion to correct illegal sentence, filed pursuant to

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Florida Rule of Criminal Procedure 3.800, and the order denying his motion for rehearing.¹ In Nelson v. State, 805 So. 2d 1071 (Fla. 3d DCA 2002), this Court remanded the cause to the trial court for clarification as to whether the trial court intended to sentence Nelson, who was convicted of robbery, as a prison releasee reoffender. On remand, the trial court clarified that the defendant was to be sentenced as a prison releasee reoffender. As the State concedes, this means that the defendant’s proper sentence is one of fifteen years. See § 775.082(9)(a)2.c, Fla. Stat. (Supp. 1998). Accordingly, we reverse and remand for the trial court to resentence the defendant to a term of 15 years as a prison release reoffender.

Reversed and remanded with directions.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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CHRISTOPHER M. COREY, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-946

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, Paul L. Backman, Judge, L.T. Case No. 00-21723 CF10A.

Christopher M. Corey, Graceville, pro se.

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

PER CURIAM.

The defendant appeals the trial court’s summary denial of his motion for postconviction relief. The trial court did not explain its summary denial or attach portions of the record conclusively refuting the defendant’s claims.

We agree with the defendant that his second and third claims (that the trial court should have held another competency hearing before or during trial and that his trial counsel was ineffective in failing to move for such a hearing), are both legally sufficient and unrefuted by the summary record on appeal (including the portions of the trial transcript attached to the state’s response below, which we have reviewed in their entirety). We find the defendant’s other claims to be without merit.

We thus reverse and remand for the trial court to either attach additional portions of the record conclusively refuting claims two and three or hold an evidentiary hearing on those claims. See Louis v. State, 948 So. 2d 869, 870 (Fla. 4th DCA 2007).

GROSS, C.J., POLEN and HAZOURI, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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RICHARD TODD, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-940

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 Seventeenth Judicial Circuit, Broward County, Michael L. Gates, Judge, L.T. Case No. 05-03638 CF10A.

Richard Todd, Florida City, pro se.

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

PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to correct illegal sentence as filed pursuant to Florida Rule of Criminal Procedure 3.800(a). As to appellant’s claim that mandatory minimum terms for his offenses could not be stacked, i.e., imposed consecutively, the sentencing transcript reveals, and the state concedes, that the trial court intended to impose only one 25-year mandatory minimum term. The mandatory minimum terms on the other counts are concurrent and not stacked. The total combined sentence was 50 years in prison with a 25-year mandatory minimum term. The Department of Corrections shall structure appellant’s sentence and calculate the release date accordingly.

GROSS, C.J., POLEN and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Salvador Mendoza, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-1943.

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, Stacy Glick, Judge. Lower Tribunal No. 02-16949.

Salvador Mendoza, in proper person.

Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

Before WELLS, LAGOA, and SALTER, JJ.

PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court

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must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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