Florida Criminal Law Opinions

MICHELLE A. JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-3948.

District Court of Appeal of Florida, First District.

Opinion filed November 30, 2009.

An appeal from the Circuit Court for Duval County, Mallory D. Cooper, Judge.

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appellee.

HAWKES, C.J.,

Michelle A. Johnson entered into a plea bargain and participated in a plea colloquy. She then decided she did not wish to plead guilty and filed a series of motions to withdraw the plea pursuant to Florida Rule of Criminal Procedure 3.170 (2008). The trial court summarily denied her motions. Due to the principles

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announced in Sheppard v. State, 34 Fla. L. Weekly S4777 (Fla. August 27, 2009), the trial court was not required to appoint conflict-free counsel to assist Johnson in bringing these motions. Accordingly, we affirm.

Plea Agreement

Prior to entering her plea, Johnson signed a plea agreement, writing her initials next to each of the following provisions:

• I hereby enter my plea of guilty because I am guilty. Before entering such a plea of guilty, I was advised of the nature of all the charges against me, the statutory offenses included within such charges, the range of maximum allowable punishments for each charge, all the possible defenses to each charge, and all circumstances in mitigation of such charges.

• I have been advised of all other facts essential to a full and complete understanding of all offenses with which I have been charged.

• I have been advised of all direct consequences of the sentence to be imposed.

• I admit that there is a factual basis for the charges to which I am pleading.

• I understand that by pleading guilty I give up the following constitutional rights: [including] the right to trial by judge or jury, the right to be represented by counsel at trial, the right to have counsel appointed to represent me if I cannot afford to retain counsel, the right to present witnesses in my own behalf and to compel the attendance of those witnesses, the right to confront the witnesses against me, the right to require the State to prove its case against me beyond a reasonable doubt, and for purposes of this plea hearing, my right against self-incrimination.

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• My attorney has taken all actions requested by me, or has explained to my satisfaction and agreement why such actions should not be taken, and I concur with my attorney’s decision in that regard. I am completely satisfied with the services rendered by my attorney on my behalf in this case.

• My sentence has been negotiated in this case, and I understand that it is as follows: Adjudicated Guilty: Sentenced to Cap of 20 Years.

• I have entered into and signed this plea of guilty and negotiated sentence freely and voluntarily.

Plea Colloquy

The case then proceeded to a plea hearing. At the beginning of the hearing, Johnson’s attorney requested that the trial court “make it clear that I’ve explained [the plea agreement] to her and that she understands it.” Johnson was then placed under oath and the trial court began the colloquy:

The Court: Ms. Johnson, your attorney has indicated you wish to enter a plea of guilty today to the first degree felony charge of conspiracy to traffic[] in [oxycodine]; is that correct? []

The Defendant: Yes.

The Court: That’s a first degree felony. The maximum penalty you could receive would be 30 years in prison with a three-year minimum mandatory and a $50,000 minimum mandatory fine. Do you understand that?

The Defendant: Yes.

The Court: However, the State is recommending that I pass your case for sentencing and at the time of sentencing you will be sentenced to an adjudication of guilt and up to a cap of 20 years. There is no agreement

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as to a specific sentence but merely zero to 20 years. Do you understand that?

The Defendant: Yes.

The colloquy continued as the trial court asked if Johnson understood she was agreeing to give truthful testimony if asked, provide substantial assistance upon request, and make weekly contact with the caseworker to whom she was assigned. Johnson replied that she did. The trial court then asked if Johnson understood it would be a violation of the terms of her sentence if she failed to appear when called by the State for any purpose related to the plea. Johnson replied that she did. The trial court then asked if Johnson understood any violation of her sentence would enable the State to ask for the maximum penalty. Johnson replied that she did.

The trial court next asked:

The Court: By entering this plea, you’re waiving the following rights: [t]he right to trial by jury and to have your attorney assist you during trial, to compel witnesses to attend on your behalf and to confront and crossexamine witnesses who are presented against you, the right to remain silent and require the State to prove your guilt beyond a reasonable doubt, and the right to appeal all matters relating to the judgment in your case. You understand you are waiving those rights?

The Defendant: Yes.

Then, trial court asked if Johnson understood that if she was not a United States citizen, her plea and conviction could subject her to deportation under the

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Federal Immigration laws. Johnson replied that she did. The trial court then asked if Johnson understood she could be subject to involuntary civil commitment upon completion of her criminal sentence if the instant offense was sexually motivated. Johnson replied that she did.

The colloquy concluded with the following exchange:

The Court: Has anyone threatened you, coerced you or made you any promises?

The Defendant: No.

The Court: Are you under the influence today of any substance or mental condition that would affect your ability to understand what you’re doing?

The Defendant: No.

The Court: By your plea are you acknowledging that you are, in fact, guilty of the charge?

The Defendant: Yes.

The Court: What is the highest grade you completed in school?

The Defendant: Graduated.

The Court: From high school?

The Defendant: Yes.

The Court: So you’re able to read and write?

The Defendant: Yes, ma’am.

The Court: Is this your signature on the plea form?

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The Defendant: Yes.

The Court: Did your attorney go over this form with you in detail?

The Defendant: Yes.

The Court: Did he answer all of your questions? The Defendant: Yes.

The Court: Do you have any other questions you need to ask your attorney or the Court?

The Defendant: No.

The Court: This form has a place for your signature for each paragraph. Did you read each paragraph and initial each paragraph?

The Defendant: Yes.

The Court: Is there any paragraph that you did not understand?

The Defendant: No, ma’am.

The Court: Are you fully satisfied with your attorney’s representation?

The Defendant: Yes.

The trial court then asked the prosecutor to provide a factual basis for the plea. The prosecutor responded that, had the case proceeded to trial, the evidence would have shown that, at some point between November 15, 2005, and November 27, 2005, Johnson knowingly conspired to sell, purchase, manufacture, deliver, or

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traffic four grams or more of oxycodone. Since there were no legal exceptions or objections, the trial court accepted Johnson’s plea, finding it to be “freely and voluntarily entered with a full understanding of the nature and consequences.”

Johnson’s motions to withdraw her plea

Following the acceptance of the plea, but before the sentencing hearing, Johnson filed a motion to withdraw her plea pursuant to Florida Rule of Criminal Procedure 3.170(f) (2008). In the motion, which was prepared with the assistance of counsel, she claimed she did not fully understand the plea agreement and how it would affect her and her minor children.

At Johnson’s sentencing hearing, the trial court addressed Johnson’s motion to withdraw her plea. It read to Johnson extensive excerpts from her plea colloquy and stated her declarations during the colloquy refuted the claims raised in her motion. The trial court then denied Johnson’s motion to withdraw the plea and sentenced her to ten years imprisonment followed by ten years of probation.

Following sentencing, Johnson filed a pro se motion to withdraw her plea pursuant to Florida Rule of Criminal Procedure 3.170(f) (2008). Johnson asserted two arguments as to why her plea should be withdrawn. First, she reiterated her earlier claim that she did not understand the consequences of the plea agreement. Second, she made the general claim that she was coerced into pleading guilty. The

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trial court summarily denied the motion without appointing substitute counsel. This appeal followed.

Analysis

In Sheppard v. State, 34 Fla. L. Weekly at S481, the Supreme Court detailed the procedure which should be followed when a defendant brings a pro se postconviction motion to withdraw a plea based on conflict with counsel:

[W]hen a represented defendant files a pro se rule 3.170(l) motion based on allegations giving rise to an adversarial relationship such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea . . . the trial court should hold a limited

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STATE OF FLORIDA, Appellant,
v.
CATHY L. CARTER, Appellee.

Case No. 1D09-702.

District Court of Appeal of Florida, First District.

Opinion filed November 30, 2009.

An appeal from the Circuit Court for Walton County, Kelvin C. Wells, Judge.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellant.

Jeremy Keich, Ramey & Bytel Attorneys, LLC, DeFuniak Springs, for Appellee.

CLARK, J.

The State appeals the suppression of evidence obtained from a pharmacy by an investigating law enforcement officer. Because section 893.07(4), Florida Statutes, requires pharmacies to make controlled substance records available to law enforcement officers, and does not require pharmacies to notify the patient or

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withhold such records until a warrant is presented, the order granting the motion to suppress is reversed.

The police investigator obtained the records at issue while investigating a suspected “doctor shopping” violation. See § 893.13(7)(a)8., Fla. Stat. The pharmacy provided the records to the investigator pursuant to section 893.07(4), Florida Statutes. In both her motion to suppress and this appeal, Appellee asserted that the warrantless seizure of her prescription records violated her constitutional rights to privacy and to due process. She further argued that her pharmacy records could not legally be transmitted to law enforcement officers unless she was provided prior notice and the opportunity to consent or be heard. The trial court granted Appellee’s motion to suppress.

While a trial court’s ruling on a motion to suppress is accorded great deference on appeal, the suppression order on review is an erroneous application of the law. The facts surrounding the pharmacy records are not at issue. The application of the law to the facts is subject to this court’s de novo review. See Brye v. State, 927 So. 2d 78 (Fla. 1st DCA 2006).

Florida legislative enactments do not supply a legal basis upon which to suppress the records at issue. To the contrary, section 893.07(4), Florida Statutes, requires pharmacies to maintain the records at issue here for a period of 2 years “for inspection and copying by law enforcement officers whose duty it is to

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enforce the laws of this state relating to controlled substances.” The statute does not require a subpoena, warrant, or prior notice to the patient. The enactment of section 893.07 was an extension of warrantless search and seizure power by the Legislature “as part of a major legislative revision of the Florida drug abuse laws.” Gettel v. State, 287 So. 2d 413, 414 (Fla. 2d DCA 1984).

Section 465.017(2)(a), Florida Statutes, specifically addresses the release of controlled substance records maintained by a pharmacy. Release of such records to persons other than the patient is prohibited, “[e]xcept as permitted by” chapter 893, Florida Statutes. §465.017(2)(a), Fla. Stat. The records at issue were obtained pursuant to chapter 893, Florida Statutes. If the Legislature intended to require pharmacies to notify patients in connection with section 893.07, the Legislature would have included this requirement in the statute, as it did in statutes governing disclosure by other health care entities. See § 395.3025, Fla. Stat. (hospitals); §§ 400.0077 & 400.022(1)(m), Fla. Stat. (nursing homes); and § 456.057(7), Fla. Stat. (physicians). The cases advanced by Appellee, pertaining to the procedures for a hospital’s disclosure of medical records governed by section 395.3025, Florida Statutes, do not apply to the pharmacy records at issue in this appeal.

The federal Health Insurance Portability and Accountability Act (“HIPAA”) does not constitute a legal basis for suppression of the records at issue. HIPAA

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addresses privacy in “protected health information” by regulating the release of such information by specified “covered entities:” health plans, health care clearinghouses, and certain health care providers. 45 C. F. R. § 160.103; see also 42 U. S. C. § 1320d. “Covered entities” do not include law enforcement officers or prosecutors, and the conduct of these officials is not governed by HIPAA. See 45 C. F. R. §§ 160.102(a), 160.104(a); State v. Straehler, 745 N. W. 2d 431 (Wis. Ct. App. 2007) (HIPAA standards not applicable to police officers); State v. Downs, 923 So. 2d 726 (La. App. 1st Cir. 2005) (HIPAA standards not applicable to district attorney).

Even if HIPAA applied to determine whether the “property was illegally seized without a warrant,” pursuant to rule 3.190, Florida Rules of Criminal Procedure, no violation of HIPAA appears in the record on appeal. Among the permitted disclosures are “as otherwise required by law” or “[i]n compliance with… an authorized investigative demand.” 45 C. F. R. § 164.512(f)(1) & (f)(1)(ii)(C). “Required by law” is defined as “a mandate contained in law that compels an entity to make a use or disclosure of protected health information and that is enforceable in a court of law.” 45 C. F. R. § 164.103. Statutes requiring the production of information are included in the definition of “required by law.” Id. Section 893.07, Florida Statutes, is Florida’s statute that requires pharmacies to produce, for inspection and copying by law enforcement officers, records of

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controlled substances sold and dispensed. Thus, a pharmacy’s provision of records to investigating police officers in compliance with section 893.07, Florida Statutes, also comports with HIPAA.

Even where evidence is disclosed by a covered entity in violation of HIPAA standards, suppression of the records is not provided for by HIPAA and is thus not a proper remedy. State v. Mubita, 188 P. 2d 867,878 (Idaho 2008); State v. Straehler, 745 N. W. 2d 431 (Wis. Ct. App. 2007). Fines and imprisonment, not suppression of evidence, are the remedies expressed in the Act for violations of the disclosure standards by a covered entity. 42 U. S. C. §§ 1320d-5, 1320d-6. Exclusion of evidence is proper only where the statute violated provides for such exclusion, or where a constitutional violation has occurred. See generally Jenkins v. State, 978 So. 2d 116 (Fla. 2008). As stated in U. S. v. Zamora, 408 F. Supp. 2d 295, 298 (S. D. Tex. 2006), “HIPAA was passed to ensure an individual’s right to privacy over medical records, it was not intended to be a means for evading prosecution in criminal proceedings.” See also State v. Eichhorst, 879 N. E. 2d 1144 (Ind. Ct. App. 2008); State v. Yenzer, 195 P. 3d 271 (Kan. Ct. App. 2009).

Finally, article I, section 23 of the Florida Constitution does not support the suppression order on appeal. Patients’ right to privacy in their medical records is not absolute. Such privacy rights “will yield to compelling government interests” and “the control and prosecution of criminal activity is a compelling state interest.”

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State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). Regulation of the sale and distribution of dangerous drugs has been recognized as a “vital interest” of the state. Whalen v. Roe, 429 U. S. 589 (1977). Other jurisdictions with statutes similar to section 893.07, Florida Statutes, have uniformly held that persons filling prescriptions for controlled substances have “a limited expectation of privacy in pharmacy records.” Murphy v. State, 62 P. 3d 533, 539 (Wash. Ct. App. 2003); see also State v. Russo, 790 A. 2d 1132 (Conn. 2002) (warrantless seizure of pharmacy records valid due to statutory provision for same); State v. Welch, 624 A.2d 1105 (Vt. 1992) (warrantless survey of pharmacy records authorized by statute). In an appeal of administrative proceedings against a licensed oral surgeon for improperly prescribing controlled substances, Florida’s Third District Court of Appeal held that the surgeon “had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy” and was thus precluded from challenging the warrantless search of the pharmacy’s records. Cushing v. Dep’t of Profl Regulation, 416 So. 2d 1197, 1198 (Fla. 3d DCA 1982) (search pursuant to § 893.07(4), Fla. Stat.). In Cushing, the Court concluded: “we regard as frivolous the appellant’s argument that the result as to either the search or the evidentiary issue is changed or even affected by the right of privacy provision of the Florida Constitution. Article I, Section 23, Florida Constitution (1980).” Id.

Accordingly, the trial court’s ruling that the warrantless seizure of

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Appellee’s pharmacy records without prior notice to Appellee was unlawful was erroneous. The order suppressing the prescription records is REVERSED and this case REMANDED.

WOLF and WEBSTER, JJ., CONCUR.

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

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

Case No. 1D08-3122.

District Court of Appeal of Florida, First District.

Opinion filed November 30, 2009.

An appeal from the Circuit Court for Leon County, Terry P. Lewis, Judge.

Clifford L. Davis, Monticello; Nancy A. Daniels, Public Defender, David P. Gauldin, Assistant Public Defender, and Kathleen Stover, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Ann M. Phillips, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

We find no substantive error in the order revoking the appellant’s probation but remand the case to the trial court to enter a corrected order showing that the judgment was rendered on the evidence presented in a probation violation hearing and not by an admission.

Affirmed and remanded.

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

No. SC06-2090.

Supreme Court of Florida.

November 25, 2009.

An Appeal from the Circuit Court in and for Volusia County, William A. Parsons, Judge — Case No. 04-1378-CFAWS

James Jeffery Dowdy of Dowdy and Nielsen, Winter Springs, Florida, for Appellant

Bill McCollum, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, Florida, for Appellee

PER CURIAM.

Troy Victorino appeals his convictions and sentences of death for first-degree murder. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm.

I. BACKGROUND

On August 27, 2004, Victorino was charged in a fourteen-count superseding indictment that included six counts of first-degree murder in the deaths of Erin Belanger, Roberto Gonzalez, Michelle Nathan, Anthony Vega, Jonathon Gleason, and Francisco “Flaco” Ayo-Roman. Victorino, with codefendants Jerone Hunter and Michael Salas, went to trial on July 5, 2006.¹ Codefendant Robert Anthony Cannon previously pleaded guilty as charged.

A. The Guilt Phase

The evidence presented at trial established that the August 6, 2004, murders were the culmination of events that began several days before. On Friday, July 30, Erin Belanger contacted police concerning suspicious activity at her grandmother’s vacant house on Providence Boulevard in Deltona. Without the owner’s permission, Victorino and Hunter had recently moved into the home with their belongings. On Saturday, Belanger again contacted police; this time she reported that several items were missing from her grandmother’s house.

Late Saturday night, Victorino appeared at Belanger’s own residence on Telford Lane. He demanded the return of his belongings, which he believed Belanger had taken from the Providence Boulevard residence. Shortly after leaving Belanger’s residence early on the morning of Sunday, August 1, Victorino contacted law enforcement to report the theft of his belongings from the Providence Boulevard residence. The responding officer advised Victorino that he had to provide a list of the stolen property. This angered Victorino, and he said, “I’ll take care of this myself.”

A short time later, Victorino met Brandon Graham and codefendants Cannon and Salas, who were in Cannon’s Ford Expedition (the SUV). Codefendant Hunter and several young women were also in the SUV. Victorino told them that Belanger and the other occupants of the Telford Lane house had stolen his belongings and that he wanted them to go fight Belanger and the others. According to Graham, Victorino and the occupants of the SUV all went in the SUV to the Telford Lane residence. While Victorino remained in the SUV, the young women went into the residence armed with knives. The young men stood outside holding baseball bats, and Hunter yelled for the occupants to come out and fight. The group left in Cannon’s SUV, however, after victim Ayo-Roman yelled “policia.”

A few days later, on the evening of Wednesday, August 4, Victorino went to a park with Graham and the three codefendants to fight another group. Evidence was presented that some of the members of that group were affiliated with the victims at Telford Lane and would have knowledge of Victorino’s allegedly stolen property. When their foes failed to show up, Victorino and his associates drove back to a house on Fort Smith Boulevard in Deltona where Victorino and Hunter now lived. As they arrived, however, Victorino spotted the car of the group with which the fight was planned and directed Cannon, who was driving, to chase the car. Victorino fired a gunshot at the fleeing car and then told Cannon to take him home.

The following morning, Thursday, August 5, Graham, Salas, and Cannon met with Victorino and Hunter at their residence. There, Victorino outlined the following plan to obtain his belongings from Belanger. Victorino said that he had seen a movie named Wonderland in which a group carrying lead pipes ran into a home and beat the occupants to death. Victorino stated that he would do the same thing at the Telford Lane residence. He asked Graham, Salas, and Cannon if they “were down for it” and said to Hunter, “I know you’re down for it” because Hunter had belongings stolen as well. All agreed with Victorino’s plan. Victorino described the layout of the Telford Lane residence and who would go where. Victorino said that he particularly wanted to “kill Flaco,” and told the group, “You got to beat the bitches bad.” Graham described Victorino as “calm, cool-headed.” Hunter asked if they should wear masks; Victorino responded, “No, because we’re not gonna leave any evidence. We’re gonna kill them all.”

Victorino and his associates then left in Cannon’s SUV to search for bullets for the gun that Victorino fired the previous night. While driving, the group further discussed their plan and decided that each of them needed a change of clothes because their clothes would get bloody. The group dropped Graham off at his friend Kristopher Craddock’s house. Graham avoided the group’s subsequent calls and did not participate in the murders.

Around midnight on Thursday, August 5, a witness saw Victorino, Salas, Cannon, and Hunter near the murder scene on Telford Lane. Cannon, a State witness, testified that he and Salas went because they were afraid Victorino would kill them if they did not. Cannon further testified that he, Victorino, Hunter, and Salas entered the victims’ home on the night of the murders armed with baseball bats.

On the morning of Friday, August 6, a coworker of two of the victims discovered the six bodies at the Belanger residence and called 911. Officers responding to the 911 call arrived to find the six victims in various rooms. The victims had been beaten to death with baseball bats and had sustained cuts to their throats, most of which were inflicted postmortem. Belanger also sustained postmortem lacerations through her vagina up to the abdominal cavity of her body, which were consistent with having been inflicted by a baseball bat. The medical examiner determined that most of the victims had defensive wounds. The front door had been kicked in with such force that it broke the deadbolt lock and left a footwear impression on the door. Footwear impressions were also recovered from two playing cards, a bed sheet, and a pay stub. All of these impressions were linked to Victorino’s Lugz boots. Furthermore, DNA testing linked bloodstains on Victorino’s Lugz boots to several of the victims. A dead dachshund, a knife handle, and a bloody knife blade were also recovered from the crime scene.

On Saturday, August 7, the day after the murders were discovered, Victorino was arrested on a probation violation at his residence on Fort Smith Boulevard. Hunter, who was present at the time, complied with the officers’ request that he come to the sheriff’s office. Once there, Hunter described his role in the murders. That same day, Cannon’s SUV was seized. From it, officers recovered a pair of sunglasses containing victim Ayo-Roman’s fingerprint. In addition, glass fragments found in the vehicle were consistent with glass from a broken lamp at the crime scene.

When questioned by officers, Salas admitted to being at the crime scene on the night of the murders and stated that Cannon drove there with Victorino, Hunter, and Salas. Salas also described his role in the murders and told officers where the bats had been discarded at a retention pond. Based on that information, law enforcement authorities recovered two bats from the pond and two bats from surrounding trees. The two bats recovered from surrounding trees contained DNA material that was linked to at least four of the victims.

At trial, Victorino testified in his defense. He admitted that he believed that Belanger had taken his property from the Providence Boulevard residence. However, he denied meeting Graham, Cannon, or Salas at his residence on August 5, testifying instead that he was at work. He further denied committing the murders and offered an alibi—that he was at a nightclub on the night of the murders. Two friends testified on behalf of Victorino and corroborated his alibi.

Hunter and Salas also testified in their defense. Each described his role in the murders and corroborated the other testimony and evidence offered at trial, including the evidence of the meeting at which Victorino planned the murders and the agreement to participate. They further testified that Victorino attempted to establish an alibi by making an appearance at the nightclub.

On July 25, 2006, Victorino was convicted of six counts of first-degree murder (Counts II-VII); one count of abuse of a dead human body (Count VIII); one count of armed burglary of a dwelling (Count XIII); one count of conspiracy (to commit aggravated battery, murder, armed burglary of a dwelling, and tampering with physical evidence) (Count I); and one count of cruelty to an animal (Count XIV).

B. The Penalty Phase

At the beginning of the penalty phase, the trial court informed the jury of the parties’ stipulation that Victorino was on felony probation for aggravated battery at the time of the murders. After the State introduced victim impact statements by the victims’ family members, the defendant presented several witnesses.

Victorino began by presenting the testimony of three expert witnesses. Dr. Joseph Wu, a psychiatrist, concluded that a PET (Positron Emission Tomography) scan revealed Victorino’s brain was abnormal, evidencing lower than normal frontal lobe activity. While he did not make a diagnosis, he said that the scan was consistent with traumatic brain injury or mental health conditions, such as bipolar disorder or schizophrenia. After reviewing Victorino’s records and conducting numerous tests, Dr. Charles Golden, a neuropsychologist, determined that Victorino has some frontal lobe impairment and severe emotional problems. Although Victorino has average intelligence and knows right from wrong, he performed poorly on executive function tests, has difficulty with interpersonal relationships, and has poor coping skills. Dr. Golden opined that the test results were consistent with Victorino’s personal history of physical abuse, difficulty in controlling his aggression, and lack of mental health treatment. Finally, the third defense expert, Dr. Jeffrey Danziger, a psychiatrist, testified that Victorino has an IQ of 101 and outlined Victorino’s long history of physical and emotional abuse by his father, an incident of sexual abuse, his history of mental health problems (including his several suicide attempts), and his time in prison.

Several relatives and friends also testified. Victorino’s brother and mother also told of Victorino’s mental health problems, an instance of sexual abuse, and the frequent physical abuse by his father. In addition, two friends testified about their regard for him.

In rebuttal, the State presented Dr. Lawrence Holder, an expert in radiology and nuclear medicine. He testified that Victorino’s PET scan was normal. Further, he stated that use of a PET scan to suggest that a patient has a specific mental health problem, such as bipolar disorder, is not an established clinical use of such scans.

The jury recommended life sentences for the murders of Michelle Nathan and Anthony Vega and death sentences for the murders of Erin Belanger (by a vote of ten to two), Francisco Ayo-Roman (by a vote of ten to two), Jonathan Gleason (by a vote of seven to five), and Roberto Gonzalez (by a vote of nine to three). At the subsequently held Spencer² hearing, the State submitted an additional written victim impact statement. Victorino did not present any additional evidence.

On September 21, 2006, the trial court followed the jury’s recommendations by imposing four death sentences.³ The trial court found the following five aggravating factors applicable to each of the four murders and accorded them the weight indicated: (1) the defendant had a prior felony conviction and was on probation at the time of the murders (moderate weight); (2) the defendant had other capital felony convictions (very substantial weight); (3) the defendant committed the murders in the course of a burglary (moderate weight); (4) the murders were especially heinous, atrocious, or cruel (HAC) (very substantial weight); and (5) the murders were cold, calculated, and premeditated (CCP) (great weight). In addition, the court found a sixth aggravator in the murders of Gleason and Gonzalez—that the murders were committed to avoid arrest (substantial weight). The trial court found no statutory mitigation but did find the following nonstatutory mitigating factors: (1) Victorino had a history of mental illness (some weight); (2) he suffered childhood physical, sexual, and emotional abuse (moderate weight); (3) he was a devoted family member with family support (little weight); (4) he did some good deeds (very little weight); (5) he exhibited good behavior at trial (very little weight); (6) he was a good inmate (little weight); (7) he was a good student who earned awards (little weight); (8) he had an alcohol abuse problem (very little weight); and (9) he had a useful occupation (very little weight). The trial court determined that the aggravating factors far outweighed the mitigating circumstances and, in accord with the jury’s recommendation, sentenced Victorino to death for each of the four murders.

II. GUILT PHASE CLAIMS

Regarding the guilt phase, Victorino argues that the trial court erred in (A) denying his pretrial motion to suppress DNA samples and nail scrapings, which he claimed were forcibly obtained from him; (B) denying his motion to suppress physical evidence seized from his Fort Smith Boulevard residence; (C) denying his motion to sever his trial from that of his two codefendants; (D) admitting evidence of uncharged misconduct; (E) using the “and/or” conjunction between the names of the codefendants when instructing the jury; (F) moving the trial within the Seventh Circuit from Volusia County to St. Johns County after granting a motion to change venue; (G) denying his request for additional peremptory challenges; (H) denying his motion for mistrial when his codefendant testified; (I) denying his motion for judgment of acquittal; and (J) denying him due process in his arrest and service of the warrant and admitting irrelevant evidence. Each argument will be addressed in turn.

A. Motion to Suppress DNA

Victorino argues that the trial court erred in denying his pretrial motion to suppress DNA samples and nail scrapings, which he claimed were forcibly obtained from him.⁴ After holding an evidentiary hearing, the trial court held that Victorino freely and voluntarily provided DNA samples and nail scrapings. We agree.

At the motion hearing, Victorino testified that after he was taken into custody, he was placed in an interview room. Victorino admits that he was properly advised of his Miranda⁵ rights and that he agreed to give an interview. Victorino testified, however, that he refused the subsequent request of two uniformed investigators to provide DNA samples, saying he would not comply without a warrant. According to Victorino, Investigator Richard Graves then pried Victorino’s mouth open while Investigator Charles Dowell swabbed Victorino’s cheek; then, Dowell held Victorino’s hand down, while Graves took nail scrapings.

In contrast, Investigator Graves testified that when he asked to collect the samples, Victorino first stated that his DNA was already on record. When Graves indicated that he was unaware of that record, Victorino complied with the request, opening his mouth for the swab and allowing the collection of nail scrapings. According to Graves, Victorino never refused and was cooperative at all times. Investigator Dowell’s testimony was completely consistent with the testimony of Graves. In additio

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JOHN R. BENNETT, Petitioner,
v.
STATE OF FLORIDA, Respondent.

Case No. 2D08-4028.

District Court of Appeal of Florida, Second District.

Opinion filed November 25, 2009.

Petition for Writ of Certiorari to the Circuit Court for the Twelfth Judicial Circuit for Manatee County, sitting in its appellate capacity.

Darren Finebloom of Finebloom & Haenel, P.A., Sarasota, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Respondent.

ALTENBERND, Judge.

John R. Bennett seeks certiorari review of a circuit court’s appellate decision reinstating a DUI charge against him in county court. The county court had dismissed the DUI charge because either a deputy sheriff’s video camera failed to

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record the roadside field sobriety test or the digital recording system in the sheriff’s office failed to preserve the recording. The circuit court reversed this order, concluding that the case was controlled by the holding in State v. Betts, 659 So. 2d 1137 (Fla. 5th DCA 1995), and that the county court had mistakenly treated dicta in State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990), as a holding from this court. As further explained in this opinion, in light of the decisions in Samborn v. State, 666 So. 2d 937, 938 (Fla. 5th DCA 1995), and State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009), we conclude that the circuit court did not depart from the essential requirements of the law in reaching this decision and in remanding the case to the county court where this complex issue can be explored in greater detail.

The issue in this case—at least at the county court level—is what, if any, sanction should be imposed upon the State when it attempts to create physical evidence for use in a criminal proceeding, under circumstances where it has no legal duty to create that evidence, and in the process of preparing that physical evidence, it inadvertently destroys the preliminary work or data and is unable to produce the desired evidence for use at trial.

At the conclusion of this opinion, we provide a lengthy discussion—in dicta—of the decisions by the Florida supreme court in State v. Sobel, 363 So. 2d 324 (Fla. 1978), and Kelley v. State, 486 So. 2d 578 (Fla. 1986) (Kelley I), and of the decisions of the U.S. Supreme Court in California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988), that form the starting point for any analysis of the above-referenced issue. It appears to us that the analysis of the issue may be somewhat different under Sobel than under Youngblood. An examination of

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cases from around this country also suggests that other courts have not settled on a single analytical structure for the resolution of this issue.

At least in this case, which involves the loss of an opportunity to present a video recording of a field sobriety test, there can be little doubt that a recording would have been “relevant” to establish a “material” fact as those terms are defined in section 90.401, Florida Statutes (2007), of the evidence code. The decisions related to this issue, however, discuss a concept of “constitutional materiality” that seems more complex. The analysis in Youngblood creates different outcomes depending on whether the lost evidence is “materially exculpatory” or “potentially useful.” 488 U.S. at 57-58.

A serious difficulty in the analysis of this problem arises because, although it is obvious that a recording of the field sobriety test would be very relevant to a material fact at a trial on the charge of DUI, it is usually very difficult to determine whether this evidence would have been inculpatory, exculpatory, or inconclusive. It does not appear that the U.S. Supreme Court intends to require dismissal of criminal charges merely because evidence that would be relevant under the rules of evidence has been lost. On the other hand, it is not entirely clear in Florida who has the burden of proof and persuasion within this due process analysis when it comes to deciding whether the missing evidence would be “exculpatory” or “potentially useful.”

Admitting that our suggestion is only dicta, at least in the case of potential evidence that is accidently destroyed when the State has no legal obligation to create the evidence, we are inclined to believe that before lost evidence is declared to be “material exculpatory evidence,” the defendant should have a threshold burden to

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persuade the trial court, perhaps by the preponderance of the evidence, that (1) the lost opportunity to present relevant evidence involved evidence that would have created a reasonable probability that the outcome of the proceeding would have been different, and (2) the defendant did not have an adequate alternative method to provide comparable evidence. Only after such a threshold showing would the burden shift to the State to prove that the defendant had not been prejudiced. Whether dismissal is the only adequate sanction for an inadvertent loss of material exculpatory evidence is an issue that may require case-by-case analysis for which we suggest no solution—even in dicta.

Accordingly, this case presents a challenge to the county court, but it is obvious that the circuit court did not depart from the essential requirements of the law in sending the matter back for more consideration.

I. The Proceedings in the County and Circuit Courts

A deputy sheriff stopped Mr. Bennett while he was operating a motorcycle on July 3, 2007, at 10:11 p.m.¹ The stop ultimately resulted in the State’s charging Mr. Bennett with DUI. Mr. Bennett and the deputy provided substantially different versions of the stop at a hearing on a motion to dismiss the charges.

The deputy testified that a passing driver told him that Mr. Bennett was weaving in his lane. After observing Mr. Bennett driving erratically, the deputy stopped him. Mr. Bennett admitted that he had had three beers on an empty stomach. Mr. Bennett smelled of alcohol and had slurred speech. The deputy conducted a field sobriety test and filled out the standard form documenting Mr. Bennett’s poor

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performance on that test. The deputy arrested Mr. Bennett and transported him to the county jail, where Mr. Bennett refused to provide a breath sample.

Mr. Bennett testified that he told the deputy that he had had three beers hours earlier. He said that he did quite well on the field sobriety test, that he had not made certain statements the deputy claimed he made, and that his speech was not slurred.

There is no dispute that the deputy believed that he recorded the stop and the field sobriety test on a digital video camera that was mounted on the cage inside his police car. The camera had a red light that indicated when it was functioning and recording. The deputy testified that the light was on during this stop. The camera worked by recording data onto a removable storage device. The deputy would later transfer the data to a DVD using equipment in the sheriff’s office. The deputy testified that this equipment, which has since been replaced, malfunctioned with some frequency. For whatever reason, no video of this stop could be transferred to a DVD, and the data on the removable storage device was apparently lost in the attempt to transfer it. No one suggests, and the county court did not find, that the deputy did anything intentionally to destroy the evidence.

In its order of dismissal, the county court found that the video camera was functioning that night and recorded the stop onto the removable storage device but that the recording was subsequently lost in the effort to transfer it. This is the most likely explanation, but it is also possible that the camera malfunctioned and recorded nothing. The circuit court recognized this possibility in its opinion. Under either factual

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circumstance, however, the county court’s analysis of the case was incorrect and the circuit court’s analysis was correct.

The county court correctly found that if a video recording of the stop existed, it would be material evidence in the case. The county court then determined that Mr. Bennett had been prejudiced by the loss of this evidence because it might corroborate his version of the events. The county court concluded that the accidental loss of the data on the digital storage device was a due process violation that warranted dismissal of the case without any further examination of the evidence. The county court explained that it did not need to decide whether the deputy acted in good or bad faith because, once the evidence was lost, the State was required to prove that the loss had not been prejudicial to the defendant, and the State could not prove a lack of prejudice under the competing factual claims in this case. This decision was strongly influenced by our earlier decision in Powers.

In reversing the county court, the circuit court briefly explained that the county court failed to determine whether the video recording would have been exculpatory evidence. It emphasized that the video footage had been lost due to a “technical failure” and not an intentional act. It relied on Betts, which held that the failure of a video camera to operate, without more, did not constitute a due process violation, and concluded that Mr. Bennett had not established a due process violation. 659 So. 2d at 1137.

II. The Narrow Standard of Review in a Certiorari Proceeding Reviewing an Appellate Decision from a Circuit Court

In reviewing the order, we are limited to determining whether the circuit court afforded Mr. Bennett procedural due process and whether it “applied the correct

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law” or “departed from the essential requirements of law.” See Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006). A “departure from the essential requirements of the law” necessary for the issuance of a writ of certiorari is something more than a simple legal error. See Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000). Instead, a district court should exercise its discretion to grant certiorari review only when “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 528 (Fla. 1995).

Admittedly, the case relied upon by the circuit court, Betts, provides little analysis to support its holding. However, in a similar case, Samborn, the Fifth District denied a petition for certiorari review of a circuit court decision that reinstated a DUI charge against the petitioner in county court. 666 So. 2d at 938. The petitioner challenged the local sheriff’s office policy of destroying potentially exculpatory maintenance testing results on its breath-testing machines. Id. at 937-38. Although the circuit court upheld the county court’s findings, it reversed the decision, concluding that the county court had not utilized a proper legal analysis. Id. at 938. “The circuit court explained that, in determining whether the loss or destruction of potentially exculpatory evidence constitutes a due process violation, a trial court must apply the tests established in [Trombetta] and [Youngblood].” Id. Applying these tests, the Fifth District concluded that it had no basis to grant certiorari relief. Likewise, in this case, we conclude that this court should deny certiorari relief.

Recently, the Fourth District reviewed a circuit court’s decision to dismiss a felony DUI charge because of the loss of a video recording of a field sobriety test.

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See Davis, 14 So. 3d at 1131. In Davis, the data appears to have been lost in essentially the same manner as it was lost in this case. Id. Accordingly, the Fourth District in Davis was procedurally in a similar position to the circuit court in this case. Like the circuit court in this case, the Fourth District reversed the trial court and remanded for further proceedings. Id. The analysis in Davis, however, was distinctly different from the analysis in the circuit court opinion that we review today.

The Fourth District recognized that the due process analysis of a loss of evidence is different when the evidence is “material exculpatory evidence.” Id. at 1132. Relying heavily on a case from Oregon, the Fourth District decided that the lost evidence at issue was “material,” but nevertheless reversed the trial court because it decided that dismissal was too harsh a sanction. Id. It left it to the trial court to determine what lesser sanction would be appropriate. Id. at 1134.

We are troubled by aspects of the decision in Davis. First, the decision implicitly assumed that the lost video recording would have supported the defendant and not the officer’s version of the events. Perhaps something in the record supported that conclusion.² It seems to this court that such a recording could be either very prejudicial to the defendant as inculpatory evidence in some cases, very helpful to the defendant as exculpatory evidence in other cases, and—perhaps most often—possibly useful to both sides.

The analysis in Davis relied on the Florida decisions in Sobel and Kelley I that are discussed later in this opinion, but made no reference to the U.S. Supreme Court’s decisions in Trombetta and Youngblood. As we discuss later, the analysis in

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Sobel predates Youngblood. The loss of evidence in this case seems more likely to be a loss of “possibly useful” evidence under the analysis in Youngblood, which would require a far different analysis.

Despite our concerns with the Fourth District’s analysis, it is precedent supporting the circuit court’s decision to reverse the order of dismissal. The circuit court’s decision, although holding that the defendant had not established a due process violation, did not preclude the defendant from seeking to prove such a violation on remand. The circuit court’s decision also would not preclude the county court from selecting a lesser sanction as authorized by Davis. Given that the county court was misled in its analysis by the dicta from this court, we cannot say that the circuit court departed from the essential requirements of the law in this case and note that the defendant continues to have avenues to challenge this issue in the county court.

III. This Court’s Contribution to the County Court’s Error

In dismissing the charges against Mr. Bennett, the county court’s decision gave great weight to language found in Powers. In Powers, this court held that the failure of a sheriff’s department to have a policy of videotaping field sobriety tests did not warrant the dismissal of a DUI charge where no recording had ever occurred. 555 So. 2d at 891. At the beginning of the legal analysis, we considered a hypothetical case in which a recorded tape was not preserved. Id. at 889. We stated:

Based upon th

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ANTONIO C. CARTER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1971

District Court of Appeal of Florida, Fourth District

November 25, 2009

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Ilona M. Holmes, Judge, L.T. Case No. 07-14915CF10A.

Carey Haughwout, Public Defender, Margaret Good-Earnest and Elisabeth Porter, Assistant Public Defenders, West Palm Beach, for appellant.

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

GROSS, C.J.

Antonio Carter was convicted after a jury trial of carjacking, strong arm robbery, and felony driving while license revoked. He was sentenced to three concurrent sentences—for carjacking, 40 years as an habitual offender with a prison releasee reoffender mandatory minimum of 30 years; for robbery, 30 years as an habitual offender with a prison releasee reoffender mandatory minimum of 15 years; and, for the felony driving charge, 5 years as an habitual offender. We affirm the carjacking and robbery convictions, and reverse the felony driving while license revoked conviction and the restitution order.

We state the facts at trial in the light most favorable to the state.¹ Samuel Laroche, the victim, was a taxicab driver in Broward County. On August 11, 2007, at approximately 11:00 p.m., Laroche picked up two men and a woman near the Yankee Trader hotel. The trio would later be identified as Alvin Bell, Bonnie Broderick, and appellant. Bell, a disabled man, was in a wheelchair. Laroche helped secure the wheelchair in the trunk of his cab, leaving it open for the ride. Once the trio was in the cab, one of the passengers told Laroche to drive them to the Lafayette Motel, which was located a few miles from the Yankee Trader. During the ride, appellant was seated in the passenger side of the front seat, Bell was seated in the driver’s side of the back seat, and Broderick was seated in the passenger side of the back seat.

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After they arrived at the motel, Laroche could not find his cell phone, which had been plugged into the cigarette lighter, and which he had used during the ride. Laroche got out of the cab and looked for his phone behind one of the seats. Appellant, Broderick, and Bell also exited the cab. After helping Bell into his wheelchair, appellant went to the driver’s seat and turned the engine off. Appellant then told Laroche he did not want to pay the fare. He also asked Laroche what he was searching for. Laroche replied that he was looking for his phone. Appellant asked if Laroche was accusing him of taking the phone, which Laroche denied. Appellant then struck Laroche with a closed fist.

Laroche fell to the ground. Appellant continued to hit him on the face and neck. As appellant was striking Laroche, Bell told him to stop and to let Laroche go. Once the beating stopped, Laroche stood up and looked for his designer glasses, which had fallen off. Laroche picked up the glasses, but appellant asked for them. Because he was afraid and did not want further confrontation, and because he did not think he had a choice, Laroche gave appellant his glasses. Standing beside the open trunk, appellant called to Laroche, who feared that appellant planned to put him inside. At that point, Laroche ran away.

Appellant slid into the driver’s seat of the cab, started the car, and drove off, along with Laroche’s driver’s license, immigration papers, and money. Laroche entered the motel, where he found Broderick. Bell was still outside the motel lobby. Laroche had motel security call the police, to whom he gave descriptions of his three passengers. Laroche described the woman as having tattoos. He said that appellant was a dark-skinned black man with no hair and indicated that the larger of the two men was in a wheelchair. About 20 minutes after appellant drove off, the police found the cab a few blocks from the Lafayette Motel. Laroche never retrieved his driver’s license, immigration papers, cell phone, or money from the car. The car’s ignition key was also missing.

The next day, Officer Chris Wilson, having been made aware of the Laroche carjacking, spotted a white woman with tattoos, a large black male in a wheelchair, and appellant, in a car at a gas station a few blocks from the site of the carjacking. These three people matched the descriptions of persons involved in the carjacking the day before.

Three days after the incident, Detective Jason Wood contacted Laroche and asked him to view several photographs. Without any prompting from Wood, Laroche recognized appellant’s photograph as depicting his assailant. Laroche testified that he was absolutely sure the person in the photograph was the person who struck him and took his

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car. He did not make an in-court identification of appellant.

The Carjacking Conviction

Appellant challenges his carjacking conviction with the argument that the use of force, a necessary element of the crime, was too disconnected from the taking of the taxicab. However, viewing the evidence in the light most favorable to the state, sufficient evidence exists to sustain the carjacking conviction.

Three elements comprise carjacking: “[1] the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, [2] with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, [3] when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.133(1), Fla. Stat. (2007). Section 812.133(3)(b), Florida Statutes (2007), further provides that “[a]n act shall be deemed `in the course of the taking’ [under element 3] if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” (Emphasis added.)

Appellant focuses on the third element of section 812.133(1), arguing that his taking of the taxicab was an afterthought to the use of force against Laroche. Appellant relies primarily on Flores v. State, 853 So. 2d 566 (Fla. 3d DCA 2003), but that case is distinguishable on its facts.

In Flores, the defendant entered a hair salon and took the purses of its owner and patrons, saying he needed money for legal fees in an unrelated matter. Id. at 567. He then barricaded the owner and patrons in the salon’s bathroom, took the owner’s car keys, and drove off with her car. Id. The third district held that the carjacking charge should be reduced to grand theft. Id. The court reasoned that “the use of force” occurred “during the course of the robbery of the [owner]‘s purse in the salon, but not at the time of his subsequent theft of the [owner]‘s automobile outside.” Id. at 570. Further, the court wrote, the owner likely did not know of the theft of her car because she was confined to the bathroom. Id. The court also noted that, because of the defendant’s announced reason for the robbery, “it appears that his theft of the victim’s car was a fortuitous event occasioned only upon his subsequent discovery of the car keys in [the owner's] purse as he searched for money.” Id. at 570 n.5.

This case is distinguishable from Flores because appellant’s beating of

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Laroche intertwined with the taking of the taxicab in time and place, so that the use of force occurred “in the course of the taking” within the meaning of section 812.133(3)(b). Appellant turned off the car’s ignition, engaged the victim about not paying the fare, beat the victim, took his glasses, and drove the taxicab away as the victim watched. Thus, the “use of force, violence, assault, or putting in fear” occurred “prior to” the taking of the property in a “continuous series of acts or events.” § 812.133(3)(b), Fla. Stat. (2007). This was unlike the theft of the car in Flores, which was an afterthought to the purse robbery inside the hair salon.

The connection between the violence and the taking in this case resembles the situation in Baptiste-Jean v. State, 979 So. 2d 1091 (Fla. 3d DCA 2008). There,

after tying and beating the victim while attempting to discover the location of valuables in his home, Baptiste-Jean and an accomplice pulled his car keys from his pocket, continued to beat him, and left the house taking the stolen items with them. Then, after loading the car which was parked in the driveway, the perpetrator started the vehicle with the keys and drove away.

Id. at 1092.

The third district held that these facts could support a carjacking conviction, observing that “while the violence involved in taking the keys may have . . . occurred `prior to’ stealing the car, it took place within a logically interrelated `continuous series of acts or events,’ and thus `in the course of the taking’ of the vehicle itself as provided in subsection 812.133(3)(b).” Id. (citations omitted).

The Robbery Conviction

Appellant next challenges the sufficiency of the evidence to support the robbery conviction, which was primarily based on the taking of Laroche’s glasses. We reject that argument, because competent, substantial evidence supports the robbery conviction.

Robbery consists of three elements: “[1] the taking of money or other property which may be the subject of larceny from the person or custody of another, [2] with intent to either permanently or temporarily deprive the person or the owner of the money or other property, [3] when in the course of the taking there is the use of force, violence, assault, or putting

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in fear.” § 812.13(1), Fla. Stat. (2007). As with the carjacking statute, section 812.13(3)(b), Florida Statutes (2007), provides “[a]n act shall be deemed `in the course of the taking’ [under element 3] if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” (Emphasis added.)

Similar to his argument on the carjacking, appellant attacks the connection between the beating of Laroche and the taking of the glasses. However, the taking and the beating were part of a connected, continuous series of events, so that the use of force can be said to have arisen during the course of the taking. Laroche gave up his glasses because the beating made him afraid. This was sufficient evidence to support the robbery conviction.

Testimony Concerning Appellant’s Companions the Day after the Carjacking

Appellant sought to exclude the testimony of Officer Wilson that the day after the carjacking, he saw appellant in the presence of a black man in a wheelchair and a white, tattooed female at a gas station a few blocks from the site of the crime.

Appellant contends that this evidence was irrelevant and tended to convict him based on his choice of associates. A “trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.” Heath v. State, 648 So. 2d 660, 664 (Fla. 1994) (citation omitted). The trial court did not abuse its discretion in admitting Officer Wilson’s testimony.

Three sections of the evidence code provide the framework for evaluating questions of relevance. The general rule is that “[a]ll relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2007). “Relevant evidence is [defined as] evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2007). Section 90.403, Florida Statutes (2007), establishes a limitation on the introduction of relevant evidence: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

Applying these statutes, Officer Wilson’s testimony about appellant’s companions on the day after the carjacking was relevant because it

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tended to prove the material fact of the identity of Laroche’s assailant. Identity was an issue at trial; although Laroche identified appellant in a photo lineup, he did not identify appellant as the robber at trial. Officer Wilson’s description of appellant, Broderick, and Bell matched the descriptions that Laroche gave to the police shortly after the crime occurred. Appellant’s association with the unusual combination of a large black man in a wheelchair and a woman with tattoos, in the same vicinity as the crime, tended to prove that he was the third person who got into the cab with them the day before. There was no unfair prejudice in this evidence. Unlike the cases cited by appellant, Officer Wilson’s description of the man in a wheelchair and the woman with tattoos did not involve the admission of hearsay statements. Cf. Zuluaga v. State, 915 So. 3d 1251 (Fla. 2d DCA 2005); Postell v. State, 398 So. 2d 851 (Fla. 3d DCA 1981). The trial judge did not abuse her discretion in admitting the testimony.

The State Failed to Prove All the Elements of Felony Driving While License Revoked

Under section 322.34, Florida Statutes (2007), a person commits felony driving on a revoked license when (1) his “driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and [2] [he] drives any motor vehicle upon the highways of this state while such license is revoked.” § 322.34(5), Fla. Stat. (2007). Authorizing a revocation for a “habitual traffic offender,” section 322.264, Florida Statutes (2007), provides:

A “habitual traffic offender” is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period.

Subsections (1) and (2) of section 322.264 specify the types of convictions that can give rise to the “habitual traffic offender” designation and suspension. Among these are driving a motor vehicle on a suspended or revoked license and “any violation of s. 316.193″ (driving under the influence). § 322.264(1)(b), (d), Fla. Stat. (2007).

The state may use a defendant’s driving record from the Department of Highway Safety and Motor Vehicles to prove the fact of a section 322.264 suspension, that the statutory notice was given, and the convictions that gave rise to the suspension. See Rodgers v. State, 804 So. 2d 480, 483 (Fla. 4th DCA 2001). If the record offered by the state

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fails to designate the requisite convictions to justify the habitual traffic offender designation under section 322.264, then the state has failed to make a prima facie case for a section 322.34 felony violation for driving on a revoked license. See State v. Byrd, 969 So. 2d 581, 582 (Fla. 4th DCA 2007); Kallelis v. State, 909 So. 2d 544, 545 (Fla. 4th DCA 2005).

Here, the driving record offered by the state failed to prove an essential element of the crime because it did not specify the convictions that gave rise to the habitual traffic offender suspension. We therefore reverse the conviction and sentence for felony driving on a revoked license.

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CLARK CAPLAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2628

District Court of Appeal of Florida, Fourth District

November 25, 2009

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Sandra K. McSorley, Judge, L.T. Case No. 06-13260.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

The appellant Clark Caplan was convicted of trafficking in marijuana based upon the testimony of his co-defendant as well as that of a special agent of the Drug Enforcement Administration (“DEA”). Caplan sought to prevent the agent from testifying, because the state had failed to produce the federal DEA reports regarding the surveillance and arrest of Caplan. Although the trial court treated the failure to produce the reports as a discovery violation but held that it was not willful, we hold that, under the circumstances of this case, no discovery violation occurred.

Caplan supplied drugs to Merrell, his co-defendant, who also sold drugs. The day after Caplan delivered drugs to Merrell at his home, DEA agents and Palm Beach County Sheriff’s agents went to Merrell’s home and eventually were able to search the residence, finding drugs. While they were there, Caplan called, and the agents recorded the call. During the call, Merrell told Caplan that he could not get rid of the marijuana, and Caplan agreed to return and pick it up. When Caplan arrived and began loading the marijuana in his car, the officers arrested both men.

Prior to trial, the defense filed a motion to compel production of all reports created by the DEA concerning its investigation and involvement in this case, but the trial court denied the motion, noting that it could not require the federal agents to provide the reports. At trial, the defense moved to strike a federal agent as a witness because of the failure to

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produce the DEA reports. The trial court treated it as a Richardson¹ violation and held a hearing. Concluding that any violation was not willful, the court gave the defense the opportunity to depose the special agent. During the deposition the agent did not refer to the reports. Although the defense claimed that it was still prejudiced because it discovered that other agents were involved in surveillance of Merrell’s home on the day prior to the arrest, the court denied the motion and permitted the agent to testify.

Based upon the testimony of Merrell and the agent, the jury convicted Caplan. The court sentenced him to six years in prison with three years mandatory. Caplan appeals.

Florida Rule of Criminal Procedure 3.220(b)(1)(B) requires the state to produce during discovery “all police and investigative reports of any kind prepared for or in connection with the case” that are “within the state’s possession or control.”² The state advised the court that it had been unable to procure the federal reports. Federal agents are precluded from providing reports of investigations without authorization. See 28 CFR § 16.22. Caplan knew about the reports prior to trial and also knew that the state could not produce them because it did not have the reports in its control. Caplan also requested the reports from the U.S. Attorney but could not obtain them. Thus, neither the state nor the defense had

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possession or control of information contained in the reports. Under those circumstances, the state had no obligation to produce the reports and thus committed no discovery violation by failing to produce them. See State v. Gonzalez Rodriguez, 483 So. 2d 807 (Fla. 3d DCA 1986).

State v. Tascarella, 580 So. 2d 154 (Fla. 1991), on which the defense relies, is distinguishable. There the state listed several federal agents as witnesses. The defense sought to take their depositions, and the agents refused to appear, citing 28 CFR § 16.22 and its prohibition against agents giving any oral statements without authorization. After two attempts to take the agents’ depositions, the trial court determined that the defendants would be prejudiced if forced to confront the agents’ testimony at trial without pretrial discovery. Florida Rule of Criminal Procedure 3.220(h) permits pretrial depositions, and failure to comply with the rules of discovery can result in the exclusion of the witnesses’ testimony at trial. Fla. R. Crim. P. 3.220(n). The trial court entered an order excluding the agents’ testimony, and the state sought review.

The supreme court held that the trial court was required to follow the state procedural rules. Those rules were not preempted by federal law prohibiting the agent from testifying in a pre-trial deposition. Because of that refusal, exclusion of the agents’ testimony was one remedy available to the trial court under rule 3.220(n), and the state had not shown that the court abused its discretion in excluding the agents from testifying at trial.

Tascarella is distinguishable from this case, because in Tascarella the defendant had a right to take the deposition of the agents under the rules of discovery, and the state intended to use those agents as witnesses at trial. Therefore, the defendants were placed at a disadvantage. In this case, the state was not required to produce reports not within its control. Moreover, the state was not intending to use information in the reports. The agent did not refer to the report either in his deposition or at trial. Thus, the defense was not placed at a disadvantage to the state, because neither side had access to the reports.

The trial court did not err in refusing to exclude the DEA agent’s testimony. We thus affirm Caplan’s conviction and sentence.

POLEN and TAYLOR, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

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Leonardo Marrero, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-188

District Court of Appeal of Florida, Third District.

Opinion filed November 25, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Diane Ward, Judge, Lower Tribunal No. 06-33584.

Carlos J. Martinez, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.

Bill McCollum, Atorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.

Before COPE, GERSTEN and SUAREZ, JJ.

COPE, J.

This is an appeal of a conviction for criminal mischief. The question is whether the evidence was legally sufficient to establish that the damage was $1000 or greater. See § 806.13(1)(b)3., Fla. Stat. (2006). We affirm.

After gambling losses, defendant-appellant Marrero drove his Ford F150 pickup truck into an entrance at the Miccosukee Casino. The entrance consisted of four impact-resistant glass doors, sixteen or seventeen feet tall, each framed in special aluminum materials. One of these was a door with an automated entry system for the handicapped. The doors had been operational prior to the crash, but were destroyed, and had to be replaced. In addition, a patron of the casino was injured.

The State charged the defendant with criminal mischief. The offense is a third-degree felony if the damage is $1000 or greater. For this crime, the amount of damage is measured by the cost of repair or cost of replacement.^{1 2} If there is

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no competent evidence of value, then the conviction must be for the lowest level of offense, a misdemeanor of the second degree. See id. § 806.13(1)(b)1.

In this case the State did not present any evidence of the cost of repair or replacement of the four doors. The defense moved for a judgment of acquittal on that count, which was denied. The defendant was convicted as charged, and has appealed.

As a general rule, it will be necessary for the State to present evidence of the cost of repair or replacement in a criminal mischief case, if the State wishes to convict the defendant of mischief exceeding either the $200 or $1000 threshold. See id. § 806.13(1)(b)2.,3.

It has been said that “a trial court may conclude `that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the

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statutory damage threshold has been met . . . .’” T.B.S. v. State, 935 So. 2d 98, 99 (Fla. 2d DCA 2006) (quoting A.D. v. State, 866 So. 2d 752, 753 (Fla. 2d DCA 2004)); S.P. v. State, 884 So. 2d 136, 138 (Fla. 2d DCA 2004); Clark v. State, 746 So. 2d 1237, 1241 (Fla. 1st DCA 1999).

In this case the jury had a videotape of the collision which destroyed four extremely tall impact-resistant doors, including one door with a special mechanism for handicapped entry. We agree with the trial court that based on common experience, the jury could reasonably conclude that the cost of repair or replacement easily exceeded $250 per door or $1000 in the aggregate. We therefore affirm the conviction and the restitution order.³

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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JAIRON JAMAAR DORSEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-2820.

District Court of Appeal of Florida, Second District.

Opinion filed November 25, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County, Manuel A. Lopez, Judge.

Jairon Jamaar Dorsey, pro se.

VILLANTI, Judge.

This appeal from the summary denial of Jairon Dorsey’s motion pursuant to Florida Rule of Criminal Procedure 3.800(a) is dismissed for lack of jurisdiction and remanded for further proceedings.

Dorsey filed a motion to correct scrivener’s error pursuant to rule 3.800(a) to which the circuit court clerk’s office affixed its stamp reflecting an April 15, 2009, filing

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date. The circuit court judge denied Dorsey’s motion by writing “Denied,” his signature, and the date April 16, 2009, on the face of the motion. This perfunctory notation produced the kind of order that this court has frowned upon many times in the past. See Suleiman v. State, 861 So. 2d 1175, 1176 (Fla. 2d DCA 2003) (Fulmer, J., concurring and citing “numerous” cases). Moreover, because the only filing date on the order in our summary record refers to the date the motion was filed, it appears that the order itself has not been rendered; consequently, the order is insufficient to invoke this court’s appellate jurisdiction. See Fla. R. App. P. 9.110(b); 9.020(h); State v. Sullivan, 640 So. 2d 77, 78 (Fla. 2d DCA 1994); State v. Moore, 563 So. 2d 115, 116 (Fla. 2d DCA 1990); Smith v. State, 582 So. 2d 796, 797 (Fla. 5th DCA 1991). In spite of being directed to supply this court with a copy of an appropriately rendered order, the circuit court judge and clerk have failed to do so.

Furthermore, even if the order had been rendered by forwarding a copy of the motion to the clerk for filing, see Suleiman, 861 So. 2d at 1176 (Fulmer, J., concurring), this court would be constrained to reverse because the order contains no explanation of the court’s rationale or record attachments to refute Dorsey’s claims, nor does it inform Dorsey of his right to appeal within thirty days of rendition as required by rule 3.800(a). See Walters v. State, 994 So. 2d 1230, 1230 (Fla. 2d DCA 2008); Gassaway v. State, 993 So. 2d 1186, 1186 (Fla. 2d DCA 2008). Accordingly, we dismiss this appeal and remand for entry of a final order capable of rendition and appellate review within thirty days from the date of this opinion.

KELLY and WALLACE, JJ., Concur.

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

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B.O., Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3682

District Court of Appeal of Florida, Fourth District

November 25, 2009

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Robert J. Fogan, Senior Judge, L.T. Case No. 07-10930 DL00A.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, J.

An unarmed minor child burglarized a home and, among other things, took two hand guns. The charging document alleged only that he committed two counts of grand theft of a firearm. Neither count alleged that in stealing the firearms he possessed or used a firearm. He pleaded guilty to the crimes as charged and reserved his right to challenge a search. On appeal he also challenges the disposition (i.e. the sentence) increasing the standard penalty to 15 days of secure detention.¹

The Juvenile Delinquency Code, now part of the Criminal Code of the State of Florida, states that among its purposes are these: “To provide judicial and other procedures to assure due process through which children … are assured … enforcement of their constitutional and other legal rights….”² In M.F. v. State, 583 So.2d 1383 (Fla. 1991), the court made clear that:

“due process of law requires the state to allege every essential element when charging a violation of law, either in adult criminal or juvenile proceedings, to provide the accused with notice of the allegations. Art. I, § 9, Fla.Const.; see, e.g., State v. Rodriguez, 575 So.2d 1262 (Fla.1991); accord In re Gault, 38,7 U.S. 1 (1967).” [e.s.]

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583 So.2d at 1385-86. Our supreme court was obviously carrying out the holding of In re Gault:

“Due process of law requires notice … which would be deemed constitutionally adequate in a … criminal proceeding. It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet.”³ [e.s., c.o.]

Gault explained: “the observance of due process standards, intelligently and not ruthlessly administered, will not compel the States to abandon or displace any of the substantive benefits of the juvenile process.”⁴

Our state supreme court has made clear that “[no] child can be placed in the status of a delinquent unless all provisions relating to delinquency are followed and all required due process rights are accorded.”⁵ [e.s.] It is equally settled that due process will not permit a juvenile to be adjudged delinquent on the basis of violations of law not alleged in the petition of delinquency.⁶ And, as we ourselves have said: “[i]t is axiomatic that a sentence can be molded to fit the crime, but the crime cannot be molded to fit the sentence.”⁷ [e.s.]

With these background principles in hand we turn to the statute employed by the trial judge in this case. The pertinent provisions of § 790.22(9) state:

“Notwithstanding s. 985.245, if the minor is found to have committed an offense that involves the use or possession of a firearm, as defined in s. 790.001, other than a violation of subsection (3), or an offense during the commission of which the minor possessed a firearm, and the minor is not committed to a residential commitment program of the Department of Juvenile Justice, in addition to any other punishment provided by law, the court shall order . (a) for a first offense, that the minor shall serve a minimum period of detention of 15 days in a secure detention facility.” [e.s.]

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The statute does not specify that it applies when the subject of the theft is a firearm. Rather its express term is use or possession of a firearm in the commission of an offense. The question presented in this case is therefore whether the statute applies when the petition neither cited the statute nor alleged that, in committing the theft, the child used or possessed a firearm.

In State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984), the court held that to enhance a sentence because of a defendant’s use of a firearm, the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used.⁸ Similarly, in State v. Hargrove, 694 So.2d 729, 730 (Fla. 1997), the court held that even where evidence regarding the use of a firearm is uncontradicted, a jury must still make that finding if a mandatory minimum sentence is to be imposed. In State v. Estevez, 753 So.2d 1 (Fla. 1999), the court held that even where the evidence is uncontroverted, to sentence a defendant to a minimum mandatory sentence for trafficking, the jury must make express findings of the amount of cocaine involved.

In Galindez v. State, 955 So.2d 517 (Fla. 2007), our court recognized that the United States Supreme Court has itself now made clear that:

“Except for the fact of a prior conviction, a judge may not find any fact that exposes a defendant to a sentence exceeding the relevant statutory maximum, unless that fact inheres in the verdict, the defendant waives the right to a jury finding, or the defendant admits the fact.”

955 So.2d at 519. In Jones v. United States, 526 U.S. 227 (1999), the Court held that the Due Process Clause and Sixth Amendment’s notice and jury trial guarantees require that any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that, other than the fact of a prior conviction, any fact that increases the penalty for crime beyond prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt. In Blakely v. Washington, 542 U.S. 296 (2004), the Court held that the relevant statutory maximum is not the most severe sentence a judge may impose after finding additional facts but is instead simply the maximum available based on the charge and verdict or plea without additional

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findings. In Blakely the Court noted that “an accusation which lacks any particular fact which the law makes essential to the punishment is … no accusation within the requirements of the common law, and it is no accusation in reason… .”⁹

State law now recognizes a broadly applicable Constitutional rule about punishment: the accused must be given notice in the charging document of any fact on which a sentencing enhancement will be based. See Bryant v. State, 744 So.2d 1225, 1226 (Fla. 4th DCA 1999) (imposition of minimum three-year sentence for conviction of attempted second-degree murder with a firearm required reversal, where state failed to allege in information that defendant was being charged with use of a firearm and faced potential imposition of a three-year mandatory minimum sentence); Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002) (absence of any allegation in the information that defendant “discharged” a firearm or destructive device during aggravated assault deprived defendant of notice that he was subject to a mandatory minimum sentence of 20 years for aggravated assault based on the discharge of the firearm); Davis v. State, 884 So.2d 1058, 1059 (Fla. 2d DCA 2004) (holding that imposition of sentencing enhancement for use of firearm during commission of offense was illegal in aggravated battery prosecution, where information failed to charge defendant with element of enhancement that defendant caused death or great bodily harm). The State has brought to our attention nothing in any statute that would dispense with the due process requirement of notice to support a sentencing enhancement in juvenile delinquency cases.

As all the above cases make apparent, the charging document serves an important purpose beyond merely alleging the elements of the crime charged. These cases hold that the charging document must also support the sentence imposed after a finding of guilt. Hence it is irrelevant to the disposition issue that the petition in this case charged all the elements of grand theft. The present issue involves the penalty that may be properly inflicted for the crime actually charged in the petition: the standard penalty or an enhanced penalty depending on facts in addition to the crime’s raw elements that were not alleged. Plainly under the above authorities, the only penalty that may be imposed is the one allowed by a charge lacking the facts supporting a § 790.22(9) enhancement.

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It is argued that because § 790.22(9) is couched in mandatory terms and that these due process principles do not apply in this juvenile delinquency case. The contention is that § 790.22(9) is “designed to get the immediate attention of all juveniles and to issue a `wake-up call’ that the state deems their firearm offenses to be serious enough to warrant the automatic deprivation of their liberty for a period of time, even on a first offense.” State v. J.Z., 957 So.2d 45, 46-47 (Fla. 3d DCA 2007) (quoting T.M. v. State, 689 So.2d 443, 446 (Fla. 3d DCA 1997)).¹⁰ But the child in J.Z. was charged and found guilty of carrying a concealed weapon and possession of a firearm by a minor. In other words — unlike the case we face today — the child was charged with the very predicate fact required by § 790.22(9): in committing his offense he possessed a firearm. Nothing in J.Z. supports a holding that § 790.22(9) may be employed in spite of the absence of notice in the charging document of the facts supporting the enhanced punishment.

Reversed.

CIKLIN, J., concurs specially with opinion.

HAZOURI, J., dissents with opinion.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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CIKLIN, J., concurring specially.

I join the majority opinion but write separately to address the dissent, which claims that our holding in State v. S.T., 803 So. 2d 782 (Fla. 4th DCA 2001) was ignored by the majority and warrants a different outcome in this case.

In S.T., a juvenile was adjudicated delinquent for grand theft and burglary of a dwelling when he stole, among other things, two firearms. Id. While awaiting adjudication, he was placed on community control under the Department of Juvenile Justice and as a result, was given a full 15 days credit toward the minimum mandatory 15 days detention at the time the court finally disposed of the case. Id. This court reversed the 15 days credit, holding that strict application of section 790.22(9) requires an additional and separate minimum mandatory 15 days of secure detention after adjudication. Id. at 783.

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As such, the facts in S.T. are inapposite. Unlike the instant case, S.T. did not involve any type of allegation that the juvenile lacked notice of the 15 day mandatory detention if found to have committed an offense that involves the use or possession of a firearm. The S.T. court reversed because the plain language of 790.22(9) strictly prohibits a minor from receiving credit for time served before adjudication. Id.

Although cases cited by the dissent suggest section 790.22(9)’s mandatory sentence serve to deter delinquent acts involving firearms, these cases do not suggest the statute’s legislative intent goes so far as to usurp quite basic principles of due process.

As noted by the majority, “due process of law requires the state to allege every essential element when charging a violation of law, either in adult criminal or juvenile proceedings, to provide the accused with notice of the allegations.” M.F. v. State, 583 So. 2d 1383, 1385-86 (Fla. 1991) (citation omitted).

A juvenile receives notice of the crimes charged and automatic enhanced penalties that will follow by way of a specifically charged petition for delinquency, not from conjecture surrounding the acts that led to its filing. See D.M.N. v. State, 275 So. 2d 308 (Fla. 3d DCA 1973). As suggested in the majority opinion, a sentence can be molded to fit the crime, but the crime cannot be molded to fit the sentence.

Since the subject charging document failed to use the words necessary to trigger an automatic penalty enhancement, B.O.’s sentence for grand theft of a firearm was not subject to that automatic enhancement, after the fact. See Bryant v. State, 744 So. 2d 1225, 1226 (Fla. 4th DCA 1999).

The majority’s holding in this case imposes no new, additional or unjust requirements on the State. If the State seeks to “get the immediate attention of all juveniles and to issue a wake-up call” as referenced by the dissent, all it must do is simply add the words “and in so doing used or possessed a firearm” to its charging document. In my opinion, it is constitutionally impermissible to bury the “wake-up call” in an innocuous charge calling attention only to the crime alleged without setting forth, with specificity, the aggravating facts that will lead to an automatic deprivation of freedom. Contrary to the argument set forth by the State, the legally insufficient petition for delinquency filed in this case was not close enough. I understand the basis of the dissent’s emphasis that juveniles are entitled to a “minimum standard of due process” but not a “full panoply . . . of rights.” Still, it is not too much to expect the

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State to carefully prepare a charging document which includes specific elements required for an automatic penalty enhancement. This is not an undue burden when justice and liberty hang in the balance, and I believe, included among those most minimum of due process standards afforded even to juveniles.

HAZOURI, J., dissenting.

I respectfully dissent. The majority fails to address this court’s holding in State v. S.T., 803 So. 2d 782 (Fla. 4th DCA 2001), which involves a factually similar scenario. In that case, the trial court adjudicated a defendant delinquent for the offenses of grand theft and burglary of a dwelling. The only time a firearm appeared during the commission of the crime was when it was “[a]mong the items stolen.” Id. at 782. The trial court did not commit the defendant to fifteen days detention, as required by section 790.22(9); but rather, it credited the defendant with fifteen days for time served in detention. Id. This court reversed and remanded, requiring the strict application of section 790.22(9) and its mandatory fifteen-day detention period. Id. at 783.

In this case, the petition alleged two counts of grand theft of a firearm. B.O. did not, nor did the petition say that B.O. did, use or possess a firearm in any other capacity during the commission of the crime. The petition also did not cite section 790.22(9)’s possible application. B.O.’s petition, however, gave him proper notice of section 790.22(9)’s possible application because, as in S.T., the taking of a handgun by a juvenile, alone, gives notification of section 790.22(9)’s mandatory application— even if that theft is the only time in which the juvenile had possession of a handgun during the commission of a crime. Such a strict application of section 790.22(9) is well-recognized and in accordance with section 790.22(9)’s legislative purpose of deterring future crimes by juveniles, especially those involving firearms. See State v. J.Z., 957 So. 2d 45, 46-47 (Fla. 3d DCA 2007) (stating that section 790.22(9) is “`designed to get the immediate attention of all juveniles and to issue a “wake-up call” that the state deems their firearm offenses to be serious enough to warrant the automatic deprivation of their liberty for a period of time, even on a first offense’” (quoting T.M. v. State, 689 So. 2d 443, 446 (Fla. 3d DCA 1997))); see also State v. R.C.S., 837 So. 2d 517, 518 (Fla. 3d DCA 2003) (stating that “the legislature purposely intended the mandatory minimum detention provision of [section 790.22(9)] to act as an example of what might lie ahead should one persist in further criminal activity”); T.M., 689 So. 2d at 446 (stating that section 790.22(9)’s “intent clearly is to have a deterrent effect to hopefully prevent the juvenile’s escalation into

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