Florida Criminal Law Opinions

WILLIE JAMES MUSE, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-657.

District Court of Appeal of Florida, First District.

Opinion filed November 17, 2009.

An appeal from the Circuit Court for Escambia County, Frank Bell, Judge.

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

Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Willie James Muse appeals the trial court’s denial of his presentencing motion to withdraw plea. He contends the trial court did not conduct a proper plea colloquy and did not formally accept his plea, as required by Florida Rule of Criminal Procedure 3.172(g). We review a trial court’s denial of a motion to

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withdraw plea for abuse of discretion. Davis v. State, 783 So. 2d 288, 289 (Fla. 5th DCA 2001). We reverse.

The State charged appellant by information with aggravated battery with a deadly weapon (count I), aggravated assault by threat with a deadly weapon (count II), and false imprisonment (count III), the charges arising out of an incident with appellant’s ex-wife. Appellant pled straight up to counts I and II in the Circuit Court for Escambia County and signed a written plea agreement. The State agreed to nolle prosequi count III. The trial court explained to appellant the nature of a straight up plea and questioned him as to whether he signed and understood the plea agreement, reviewed it with his attorney, and gave his acquiescence voluntarily. Finally, the trial court asked appellant, “you understand . . . as part of the plea agreement . . . you are waiving 9 rights here?” To all of the foregoing questions appellant responded in the affirmative. The trial court proceeded to order a presentence investigation. Appellant sought to withdraw his plea five days later. After hearing, the trial court denied the motion, expressly finding the plea had been accepted.

Florida Rule of Criminal Procedure 3.172(g) provides for the withdrawal of a plea offer or negotiation by either party at any time before it is accepted formally by the trial judge. The rule requires “formal acceptance of [the] plea,” which occurs when the trial court “affirmatively states to the parties, in open court and for

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the record, that the court accepts the plea.” Harden v. State, 453 So. 2d 550, 551 (Fla. 4th DCA 1984). The fundamental defect in the proceedings above was the trial court’s failure to express its acceptance of appellant’s plea; the ordering of a presentence investigation is not sufficient in this respect. As the plea agreement is no longer binding on appellant, however, the State may reinstate the count of false imprisonment and proceed to trial on all of the original charges. See Forbert v. State, 437 So. 2d 1079, 1081 (Fla. 1983).

The State having conceded the error, we note the professionalism and integrity with which the State has conducted itself in these proceedings. We also direct the court on remand to the requirements of Florida Rule of Criminal Procedure 3.172(c), which instructs the trial judge to determine that a pleading defendant understands the nature and consequences of waiving the specific rights enumerated therein.

REVERSED and REMANDED.

KAHN, BENTON, and CLARK, JJ., CONCUR.

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

Courtesy of David Edelstein

EMMANUEL ORTIZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-1653.

District Court of Appeal of Florida, Fifth District.

Opinion filed November 13, 2009.

Appeal from the Circuit Court for Orange County, Jose R. Rodriguez, Judge.

Frances Martinez, of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.

ON MOTION FOR REHEARING EN BANC

MONACO, C.J.

We grant the motion for rehearing en banc requested by the State, withdraw our previously issued opinion, and substitute for it the following.

This case causes us to consider the parameters of the exigent circumstances doctrine as applied to a police officer’s discovery of proscribed substances incident to

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an attempt to fulfill his non-investigative obligations. Because we conclude, as did the trial judge, that the officer acted reasonably under the circumstances in entering the home of the appellant, Emmanuel Ortiz, without a warrant, we affirm.

I. Rehearing En Banc.

A rehearing en banc may be granted pursuant to Florida Rule of Appellate Procedure 9.331(a) when the case is of exceptional importance or in order to maintain uniformity in the court’s decisions. First, we note that the present case fleshes out the borders of both the “feared medical emergency” exception to the warrant requirement articulated by the Florida Supreme Court in Riggs v. State, 918 So. 2d 274 (Fla. 2005), and the now well-recognized community caretaking function of police officers. Unlike the dissent, we view both issues to be of exceptional importance, particularly in a day and age where society expects police officers to be deeply involved in humanitarian and life and property protection actions that go beyond traditional law enforcement duties. Underscoring this concept, the Riggs court quoted the United States Court of Appeals for the First Circuit to the effect that police officers fearing emergencies:

need [to make] an on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences.

Riggs, 918 So. 2d at 282 (quoting United States v. Martins, 413 F.3d 139, 147 (1st Cir.), cert. denied, 546 U.S. 1011 (2005)). Because the view of the original panel decision had potentially far-reaching negative effects on the actions of law-enforcement officers in fulfilling this function, the case is exceptionally important.

Finally, while the dissent asserts that the original panel decision did not conflict with Riggs, the majority has concluded otherwise. Indeed, Riggs compels a conclusion

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far different than that dictated by the original decision. Accordingly, we review this case en banc.

II. Adjudicative Facts.

Mr. Ortiz pled nolo contendere to trafficking in cocaine and possession of drug paraphernalia, reserving the right to appeal the denial of his dispositive motion to suppress. He argues that a law enforcement officer’s warrantless entry into his home and the subsequent seizure of cocaine and drug paraphernalia were unconstitutional. We disagree.

At about 6:30 p.m. one evening, Sheriff’s Deputy Herbert Mercado received a call from a local elementary school reporting that a six-year-old child’s parents failed to pick him up from an after-school program. The deputy indicated that he routinely received such calls, and in such instances “we usually exhaust our means to make contact” with the parents of the child before referring the child to the Department of Children and Families.

The school’s representative advised the deputy that the child was supposed to be picked up by 6:00, and that the school had been unable to contact the child’s parents by telephone. Because of the Sheriff’s office’s policy to take reasonable steps to contact parents before turning a child over to the Department of Children and Families, Deputy Mercado proceeded to the school, and then drove the child to the address that the school provided as the child’s home. The deputy testified that the child told him that his parents were or should be home.

When the deputy and the child arrived at the house, the house appeared to be dark and it did not appear that anyone was home. From his vantage point in the street

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the officer was able to see no lights in the house, and no one answered when the child knocked on the front door. There was no car outside and nothing was obviously amiss. When the child received no response from his knocking on the front door, the child proceeded to the garage. The front garage door was not locked, and the child opened it, possibly with the deputy’s help.¹ From inside the garage, the deputy could now see a light on in the house. The child invited the deputy inside the home, saying “Come in. I’ll show you where my parents are.” The deputy and the child then entered the house in search of the parents. According to the deputy, “He (the child) basically just kind of walked randomly into the house, just looking for the parents. So I just, you know, followed him.” Immediately before entering the house, the deputy announced his presence, but got no response. After they looked around without finding anyone, the child took the deputy to the locked door of his parents’ bedroom. Oddly enough, the bedroom door was locked from the inside. The deputy knocked on the bedroom door and announced his presence. There was no answer. The time was now about 7:30, and no contact had yet been made with the child’s parents.

Concerned for the well-being of the parents, the deputy was able to unlock the door and enter the bedroom, possibly because “it had like a pinhole kind of way you can stick a pin in it and open it.” In any event, the deputy did not force the door open. Once in the bedroom, the deputy, still fearing for the health of the parents, looked “for a body” on and under the bed, as well as in the closets. When the deputy walked into the adjoining bathroom, however, he saw in plain view what turned out to be 34 grams of

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cocaine wrapped in baggies on the countertop. Moments later, Mr. Ortiz entered the room.

The deputy asked him if he lived in the house and if the young boy was his son. After Mr. Ortiz answered both questions affirmatively, the deputy advised him of his Miranda² rights. Mr. Ortiz then admitted that the cocaine was his, and was subsequently arrested on several drug-related charges.

Mr. Ortiz moved to suppress the cocaine, contending that contrary to the State’s position, exigent circumstances did not justify a warrantless entry into his home, and specifically, the locked bedroom. He also argued that the six-year-old child did not have the authority to consent to the warrantless entry into the house. The trial court disagreed, explaining in part:

As far as going inside the bedroom, I think that’s key here, because if — it doesn’t matter what consent may have — given, what understanding there was by the defendant. If the officers did not have the right to be where they were, then the evidence has to be suppressed. That’s why I was very clear in asking what was not clear from the questioning, whether or not — in order to get to the bathroom where the contraband was found, whether or not the only access was through the bedroom door.

You know, again, when you look at the situation that we have here, when the child is directing — I think what’s critical here, that may be missing from other cases, is that you’ve got the child directing the officer to the bedroom of the parents, where the parents are, or where the child believes the parents would be or might be. And I believe that where he was, under the circumstances that he was — that he was in, the fact is also critical that there was no busting down of the door, but that a pick or a — whatever it was, to unlock the door, was used, I think it was reasonable within the context of the facts of the entire case.

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So I do not believe at this point, that we are within — with the facts — within the facts that Wheeler [v. State, 956 So. 2d 517 (Fla. 2d DCA 2007)] provides. And I do believe that this is, again, because we are dealing with a child; we are dealing with a child having the apparent authority.

This is not the, my child is letting a complete stranger inside the house, but my child is letting a law enforcement officer who has been verified by the school board, in whose trust, care and custody the child has been placed — to reunite him with a parent. And I think, under the circumstances here, it is totally, completely reasonable, particularly since there was no violent — or destruction of property to get access.

There is absolutely nothing but clear, unambiguous, good intentions on the part of the police officer, to make sure that a child is returned to his family. And but for the fact that these items were left in plain view, I think the officer had every reasonable expectation from our society to make sure that somebody was not, where the child indicated a parent might have been, in extremis.

So, for the reasons that have been stated, I believe that the officer acted reasonably and that this was not an unwarranted search or seizure of either the property or the — the search of the property or seizure of contraband. The motion, at this time, is denied for the reasons stated.

Mr. Ortiz subsequently entered a plea of nolo contendere to trafficking in cocaine and possession of drug paraphernalia, expressly reserving his right to appeal the denial of his dispositive motion to suppress evidence.

III. Analysis.

Review of a motion to suppress is a mixed question of law and fact. The standard of review applicable to the factual findings is whether competent substantial evidence supports those findings. The standard of review applicable to the trial court’s application of the law to the factual findings is de novo. Tyson v. State, 922 So. 2d 338,

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339 (Fla. 5th DCA 2006) (citing McMaster v. State, 780 So. 2d 1026, 1028 (Fla. 5th DCA 2001)).

A warrantless search of a home is initially presumed to be unreasonable, and thus, impermissible under the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). The presumption, however, is not deemed to be absolute or without flexibility. United States v. McGough, 412 F.3d 1232, 1237 (11th Cir. 2005). Thus, because the keystone of a Fourth Amendment analysis is “reasonableness,” the warrant requirement is subject to certain important exceptions. Flippo v. West Virginia, 528 U.S. 11, 13 (1999); see also Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). One of the recognized and emerging exceptions to the warrant requirement comes into play when a law enforcement officer is confronted with exigent circumstances.

In this regard we have come to recognize over the years that police officers frequently perform functions that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” See Cady v. Dombrowski, 413 U.S. 433, 441 (1973). The United States Supreme Court has referred to this series of duties as “community caretaking functions.” Caretaking functions are performed by police officers because we expect them to take those steps that are necessary to “ensure the safety and welfare of the citizenry at large.” 3 LaFave, Search & Seizure (4th Ed. 2004), § 5.4(c), pp. 201-202. See also United States v. Quezada, 448 F.3d 1005 (8th Cir. 2006). Searches undertaken by a law enforcement officer in fulfilling his or her community caretaking functions focus on “concern for the safety of the general public.” See Dombrowski, 413 U.S. at 447; Castella v. State, 959 So. 2d

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1285, 1292 (Fla. 4th DCA), review denied, 968 So. 2d 556 (Fla. 2007). Indeed, courts have traced the derivation of the emergency doctrine that we apply today to the recognized community caretaking function of law enforcement officers. See, e.g., United States v. Russell, 436 F.3d 1086, 1090 (9th Cir. 2006); United States v. Bradley, 321 F.3d 1212, 1214 (9th Cir. 2003).

One exigency that obviates the need for a warrant occurs when an officer is put in position to assist persons who are injured or threatened with injury. Mincey v. Arizona, 437 U.S. 385, 392 (1978). Our courts have deemed it reasonable under such circumstances to forego the wait for a warrant. In Riggs, 918 So. 2d at 278-79, the Florida Supreme Court had the opportunity to apply and discuss this exception in a case that guides our consideration of the present case.

In Riggs, a child was found wandering naked and alone in the early morning hours. The child was in the company of local residents when the police arrived. The deputies, acting in their caretaking capacity, decided to search a nearby apartment complex because they were concerned about the “welfare of the parents” and about “any type of child abandonment or anything like that.” Riggs, 918 So. 2d at 276. The officers found a door to one apartment “slightly ajar,” and conjectured that “that was possibly where the child had come out of.” The officers pounded on the door, but got no answer. Id. at 276-77. Because they were concerned that something might have happened to the child’s caregiver, or that someone inside might need medical attention, the deputies entered the apartment. Id. at 277. There were three rooms in the apartment. Id. In the first they found nothing out of the ordinary. In the second they found seven potted marijuana plants and a fluorescent light suspended above them. Id.

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In the third they found Mr. Riggs and the child’s babysitter. The trial judge suppressed the evidence, concluding that there were no exigent circumstances. The Second District disagreed and noted that “[t]he officers believed it was their duty to see that the child’s caregiver was not incapacitated and justifiably entered the residence.” State v. Riggs, 890 So. 2d 465, 467-68 (Fla. 2d DCA 2004). Our supreme court unanimously affirmed the district court, and held that “in entering Riggs’s apartment without a warrant, the deputies acted reasonably and consistent with the Fourth Amendment.” Riggs, 918 So. 2d at 283.

Jurisdiction in Riggs was based upon conflict with the decision of the First District in Eason v. State, 546 So. 2d 57 (Fla. 1st DCA 1989). In Eason an eight-year-old child was found wandering through an apartment complex about 8 a.m. The officers followed the boy to a specific apartment. The child pointed to a partially opened door and said, “Mommy’s in there,” or something to that effect. After the officers knocked and got no reply, they entered the apartment and found the boy’s caretakers in a room containing marijuana and drug paraphernalia. The trial court found the search to be lawful, but the district court reversed, saying:

[The officer] admitted that prior to entering Eason’s apartment he saw no evidence that the child had been, or was going to be, physically or mentally abused, saw no evidence that medical intervention was necessary, and saw no evidence of a murder or robbery. [He] also testified that, upon his arrival at the apartment complex, the child appeared to be in the care of a responsible adult. We must conclude, therefore, that the state did not satisfy its burden of proving that the officers had reasonable grounds to believe exigent circumstances existed.

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Id. at 58-59. The Florida Supreme Court granted review because the Second District in Riggs applied a “rule of law to produce a different result in a case which involves the same facts as a prior case.” Riggs, 918 So. 2d at 278 (quoting Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975)). The high court approved the decision of the Second District in Riggs to the effect that the seized evidence should not have been suppressed, and disapproved Eason. Riggs, 918 So. 2d at 283.

Our supreme court reached this conclusion based on a permutation of the doctrine of exigent circumstances; namely, “a feared medical emergency.” Riggs, 918 So. 2d at 279. This variety of exigency is founded in two United States Supreme Court cases, Mincey, and Thompson v. Louisiana, 469 U.S. 17 (1984). Mincey describes the doctrine succinctly:

Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid…. “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.”

Mincey, 437 U.S. at 392 (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir.), cert. denied, 375 U.S. 860 (1963)).

In applying the feared medical emergency exception in Riggs the Florida Supreme Court posed and answered two critical questions. First, whether the deputies had reasonable grounds to believe that the child’s caregiver might be in need of medical attention. The court answered that question affirmatively. Next, the court asked whether the deputies had reasonable grounds to connect the feared emergency to the apartment they entered. Once again, the high court answered affirmatively.

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In its analysis of the exigency exception the court rejected the suggestion that the deputies should have simply walked away from the open door, stating “[g]iven their reasonable fear of a medical emergency, the deputies did not have time to retreat and weigh their options.” Riggs, 918 So. 2d at 282. The court added:

As the First Circuit recently explained, officers fearing emergencies often “need [to make] an on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences.” See United States v. Martins, 413 F.3d 139, 147 (1st Cir. 2005), cert. denied, 546 U.S. 1011, 126 S.Ct. 644, 163 L.Ed.2d 520 (2005). The deputies in this case made precisely such a judgment. The resulting invasion of privacy is one that prudent, law-abiding citizens can accept as the fair and necessary price of having the police available as a safety net in emergencies.

Id., at 282-83.

The identical principles obtained in the present case are demonstrated by a consideration here of the same two inquiries suggested by Riggs.

A. Whether the officer had reasonable grounds to believe that the child’s parents might be in need of medical attention.

The officer was fulfilling a laudable police function in attempting to reunite the child with his missing parents. He was not, it should be noted, acting to investigate and uncover a crime. We give weight to the fact that a proper function of the officer in these circumstances was to attempt to reunite the child with his parents, much as the supreme court implicitly did in Riggs.

Although the dissent concludes that there was no reason to believe that the parents were in the house and in possible need of medical or other assistance, we find ourselves in sharp disagreement with that proposition. At the time that` the officer reached the house, the child indicated that his parents were inside and knocked on the

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door. When there was no answer forthcoming, the child led the officer to the unlocked garage door and either with or without the officer’s assistance, lifted the garage door. The officer could see a light on in the house, indicating that someone might be home, yet no one responded. Although the transcript does not say specifically, it appears that the child, followed by the officer, then entered the house through an unlocked door from the garage.

Had the officer acted unreasonably up to this point? We think not. Certainly the officer would reasonably conclude based on the historical facts and the inferences that would logically be drawn from them that something was not right, and that prudence would dictate that he follow the child into the home. He knew that the parents were quite late in picking up the child at the school and could not be reached by phone. At 7:30 p.m., an hour and a half after the child was first supposed to be picked up by his parents, the officer found himself with the child in the unlocked garage of the child’s home, and he could see a light on in the unlocked house. Still, no one responded to his knock. Viewing these facts objectively, could the officer reasonably conclude that something was wrong? We and the trial judge, who considered the live testimony presented, agree that the answer to this inquiry is, yes.

Upon entering the house, still having charge of the child, the officer still saw no sign of the parents. Although the child indicated that his parents were likely in the bedroom, the officer found that the bedroom door was locked from the inside, and there was no response to his knock or announcement. At every incremental stage of this evolving scenario the officer reasonably followed his instincts leading him to the conclusion that there could well be a medical emergency under way or worse. Upon

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entering the bedroom, the officer said, in fact, that he searched for a body. Instead he found the drugs in plain view. There was nothing unreasonable about the officer’s behavior or his apprehensions that he was dealing with an emergent situation that demanded prompt action.

In this regard the trial judge specifically found that:

There is absolutely nothing but clear, unambiguous, good intentions on the part of the police officer, to make sure that a child is returned to his family. And but for the fact that these items were left in plain view, I think the officer had every reasonable expectation from our society to make sure that somebody was not, where the child indicated a parent might have been, in extremis.

We agree.

B. Whether the officer had reasonable grounds to connect the feared emergency to the house that was entered.

This is easily acknowledged. All of the evidence pointed to the Ortiz residence as the site of the feared medical emergency.

IV. Conclusion.

In the final analysis, our consideration of this case requires us to balance two values that are important to all of us: our desire to have police officers perform the community caretaking function particularly in perceived emergent circumstances, and the warrant requirement to underpin a search. As one noted observer has put it in a different constitutional context, “[t]he issue always is a comparison of the harm done by a marginal curtailment of one value with the benefit to another value from the curtailment.” R. Posner, How Judges Think, Harvard University Press 330 (2008). Here, the benefit obtained by allowing officers to act without a warrant in perceived

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emergency situations must trump the marginal curtailment of the warrant requirement. This case does not present a new exception, nor does it diminish the respect for the sanctity of the home. Rather, it simply adheres to the holding of our supreme court in Riggs, and applies a recognized exception to the warrant requirement.

AFFIRMED.

GRIFFIN, SAWAYA, PALMER, TORPY and JACOBUS, JJ., concur.

TORPY, J., concurs and concurs specially, with opinion in which LAWSON, J., concurs.

LAWSON, J., concurs in result and concurs specially.

ORFINGER, J., dissents, with opinion in which COHEN, J., concurs.

EVANDER, J., dissents, with opinion in which ORFINGER, J., concurs.

COHEN, J., dissents, with opinion in which ORFINGER, J., concurs.

—————

Notes:

1. The deputy testified that he thought that he did not help the child open the garage door. He conceded, however, that he may have helped the child lift the door.

2. Miranda v. Arizona, 384 U.S. 436 (1966).

—————

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TORPY, J., concurring and concurring specially.

In my view, this case should not be analyzed using many of the Fourth Amendment concepts identified by my colleagues in their opinions because these concepts pertain only to searches for evidence of crime. The purpose for a search warrant is to ensure that “conclusions as to probable cause will be drawn by a neutral magistrate unrelated to the criminal investigative-enforcement process.” South Dakota v. Opperman, 428 U.S. 364, 371 n.5 (1976). “Probable cause” is a concept that is confined to criminal investigations. Id. When a warrant would not serve this prophylactic purpose, it is inapplicable. Id. Indeed, a search warrant is not available unless police are searching for criminals, evidence of crimes, instruments of crimes, fruits of crimes or contraband. § 933.14, Fla. Stat. (2007), see also Fed. R. Crim. P. 41(c) (warrant may issue for evidence, fruits or instruments of crime, contraband or persons to be arrested for crime). Here, the decision to search was not to discover evidence of a crime at all. Thus, the presumption of unreasonableness associated with warrantless searches, acknowledged by the majority and argued by Judge Orfinger, is not applicable, because this is not a case where a warrant would have been applicable or even available. It makes no sense that there should exist a presumption of unreasonableness because police did not procure that which is inapplicable and unattainable.

The phrase “exigent circumstances,” likewise pertains to searches in criminal investigations. It is said to be an “exception to the warrant requirement,” predicated on the impracticability of first obtaining a warrant. G. M. Leasing Corp. v. United States, 429 U.S. 338, 339 (1977) (emphasis added). The existence of such exigent

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circumstances does not obviate the need for “probable cause” to search, however. It only excuses the step of first obtaining judicial authority to conduct the search. Anderson v. Creighton, 483 U.S. 635, 657 (1987). Thus, although courts sometimes employ this rhetoric in the context of searches in noncriminal cases, it is a jurisprudential concept that simply does not fit in cases such as this one. Whether an “exigency” existed, so as to excuse the precaution of prior independent review of “probable cause” and the issuance of a warrant to search for criminals or evidence, is not the issue.

There may be many occasions where noncriminal searches are precipitated by “exigent circumstances,” but the finding that a true exigency exists should not be a requisite finding to the conclusion that a search of this nature meets the reasonableness standard of the Fourth Amendment. This seems to be a central point of departure between the majority and dissenting opinions. All seem to agree that the police acted reasonably, but the majority concludes that an exigency existed, while the dissenting judges do not. Although I agree with the conclusion of the majority on this issue, I admit that the point is fairly debatable, depending on how one defines and views “exigent circumstances.” See Payton v. New York, 445 U.S. 573, 601 (1980) (equating “exigent circumstances” with “emergency”). I think the debate is unnecessary, however, because the relevant inquiry simply should be whether the police acted reasonably under the circumstances, which is the “ultimate standard” under the Fourth Amendment. Cady v. Dombrowski, 413 U.S. 433, 439 (1973).³

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On this issue, at our level of review, we must afford deference to the inferences drawn by the police and the trial judge. Ornelas v. United States, 517 U.S. 690, 699 (1996). In other words, when multiple reasonable inferences may be drawn from the same set of circumstances, it is not our function to determine which inference is most probable or most reasonable. Instead, we must determine, after all inferences are considered from the vantage point of a reasonable police officer, whether this officer acted reasonably under these circumstances. Id.

Here, there is no contention that the police officer acted in bad faith or with an ulterior motive. The goal of attempting to reunite this young child with his parents was legitimate and one that we as a society should foster. At each juncture, the officer learned additional information that justifiably led him to conclude that something was amiss. By the time the officer entered the house, the parents were seriously overdue in picking up the young child at a late hour. It is not likely that a parent would forget to pick up a child of this age at this time of day, for this period of time. And, in this day where everyone has access to a cellular phone, one would expect at least a phone call from a tardy parent if the parent was merely unavoidably detained. One could deduce from these facts alone that something was wrong.

The fact that the boy believed his parents were home is also significant. Although he had not been home all day, he could no doubt make a reasonable prediction that his parents were home, just as any family member could predict the location of loved ones based upon the time of day, knowledge of their habits and other

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circumstances. When neither parent answered the door, although other reasonable inferences might have been drawn, it was not unreasonable to conclude that the parents were in danger. This conclusion was buttressed by the fact that the door to the bedroom was locked from the inside, justifying the further intrusion into the inner sanctum of the home.

Even if the officer was not reasonable in his belief that the parents were in danger, he was still duty-bound to protect the child. That duty justified taking the child to the home and, when unable to get the parents to come to the door, further justified the entry into the home to see if the parents were in fact there. The officer’s only other options were to leave the child at the home without verifying that a parent was home or to place the child with the Department of Children and Families. These options would have left him in a potentially “no-win” situation. Had he believed the child when he said his parents were home and simply left him in the residence without further investigation, the risk was that a six-year-old child might be left alone with no supervision. Had the officer turned the child over to the Department of Children and Families, he would run the risk of unnecessarily subjecting him to the emotional trauma of being left in an unfamiliar place with total strangers, should it later turn out that his parents were in fact home, but simply did not hear the knock at the door. If the boy suffered harm in either hypothetical circumstance, the police would surely be criticized and maybe even sued.⁴

The choice that the officer made — to confirm whether a parent was home by entering the premises — was the most reasonable choice under the circumstances,

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when viewed from the perspective of a reasonable officer. Even if it was not the most reasonable choice, however, it was not an unreasonable one. The importance of the goal of reuniting this young child with his parents in an expeditious and informal way cannot be overstated. The alternative of turning the child over to another governmental agency, with the concomitant reports, procedures, investigations and disruption to both the child and parents, would probably be considerably more intrusive than the brief entry into the home. It was reasonable for the officer to assume that most parents, innocent of wrongdoing, would prefer this minimal intrusion into their privacy over the hardship, di

Courtesy of David Edelstein

RONALD RAY SOLORZANO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-5664.

District Court of Appeal of Florida, Second District.

Opinion filed November 13, 2009.

Appeal from the Circuit Court for Sarasota County; Rick A. DeFuria, Judge.

Jackson S. Flyte, Regional Counsel, Second District, and Mark P. Brewer, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Ronald Ray Solorzano appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction

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court summarily denied seven of Solorzano’s nine grounds for relief and denied the remaining two grounds after an evidentiary hearing. We affirm in part, reverse in part, and remand for further proceedings.

Background

Solorzano was charged with one count of DUI manslaughter and three counts of DUI with serious bodily injury following events that occurred on March 9, 2003. The evidence at trial showed that Solorzano had spent the afternoon and evening of March 9 at Gilligan’s Bar with a group of friends and co-workers. At some point in the evening, one of Solorzano’s co-workers, Ida D’Ettorre, became too drunk to drive and was feeling ill. Solorzano offered to drive Ms. D’Ettorre home. While doing so, Solorzano lost control of his truck, crossed the center median, and collided with four people on two motorcycles. One of the motorcyclists was killed; the other three suffered serious injuries.

Solorzano’s defense at trial was that he was not intoxicated when the accident occurred. He contended that he had had only two or three beers during his six or seven hours at Gilligan’s and that he had been eating during that time as well. He contended that he lost control of his truck only because Ms. D’Ettorre vomited on him while he was driving. He also contended that his blood alcohol level was due to his having taken Nyquil for a cold rather than due to his drinking at the bar. The jury apparently rejected these defenses, and it found Solorzano guilty as charged. The trial court sentenced Solorzano to 23.14 years in prison followed by five years’ probation. This court affirmed Solorzano’s judgment and sentence on direct appeal. Solorzano v. State, No. 2D04-2061 (Fla. 2d DCA June 22, 2005).

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Solorzano timely filed a motion for postconviction relief, raising nine grounds for relief. The postconviction court summarily denied grounds one, four, five, six, seven, eight, and nine. It held an evidentiary hearing on grounds two and three, after which it denied those grounds as well. We affirm the denial of grounds one, two, three, and nine without further discussion. We also affirm the denial of grounds four and seven, but we write to explain our reasoning. As to ground five, we reverse and remand for reconsideration of this claim on its merits. Finally, as to grounds six and eight, we reverse and remand for further proceedings.

Ground Four

In ground four of his motion, Solorzano alleged that his trial counsel was ineffective for failing to move to strike prospective juror Wasson, either peremptorily or for cause, after she stated during voir dire that she would want to hear “everything from everybody” before she made a decision. Solorzano alleged that this could be interpreted as Wasson placing the burden on the defense to come forward with testimony and evidence but that trial counsel never questioned Wasson about this. Solorzano alleged that he was prejudiced because there was a reasonable doubt that Wasson, who actually sat on his jury, would not be impartial if Solorzano introduced no evidence and therefore Wasson was unable to hear “everything from everybody.”

The postconviction court denied this claim, attaching the portions of the transcript of jury selection during which Wasson was questioned. The postconviction court noted that these excerpts established that Wasson was not actually biased against Solorzano, and thus the court concluded that Solorzano could not state a facially sufficient claim of juror bias under the requirements set forth in Carratelli v.

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State, 915 So. 2d 1256 (Fla. 4th DCA 2005), review granted, 935 So. 2d 499 (Fla. 2006).¹ It is apparent from the limited postconviction record that the court denied this claim on its merits rather than for pleading deficiencies.

While we agree with the postconviction court’s decision to deny Solorzano relief on this claim on its merits, we do so for a different reason. A review of the claim actually made by Solorzano shows that he did not attempt to allege that Wasson was a biased juror who was seated on the jury. Thus, the resolution of this claim was not governed by Carratelli v. State, 961 So. 2d 312 (Fla. 2007). Instead, the substance of Solorzano’s claim was that counsel was ineffective for failing to conduct a meaningful voir dire of Wasson after she made the statement at issue. Solorzano contended that had counsel conducted further questioning of Wasson, counsel might have uncovered a basis to challenge her for cause. Alternatively, Solorzano alleged that further questioning could have resulted in trial counsel using a peremptory strike against Wasson. In essence, Solorzano alleged that counsel was ineffective for failing to conduct a meaningful voir dire of Wasson that would have allowed counsel to intelligently and effectively use challenges—whether cause or peremptory challenges—against this juror.

Even with the claim understood in this manner, however, Solorzano is not entitled to relief. A claim that counsel was ineffective for failing to “follow-up” on questioning to establish grounds for a for-cause challenge has been held to be legally insufficient because such a claim can be based on nothing more than conjecture by the defendant. See Reaves v. State, 826 So. 2d 932, 939 (Fla. 2002) (holding that when

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the record does not show a reasonable basis to assert a for-cause challenge, a claim by the defendant that more information would have been forthcoming had counsel properly followed up with further questioning is mere conjecture and thus is not a legally sufficient claim for postconviction relief); see also Green v. State, 975 So. 2d 1090, 1105 (Fla. 2008) (following Reaves); cf. Davis v. State, 928 So. 2d 1089, 1118 (Fla. 2005) (holding that allegations that counsel was ineffective for failing to “follow up” with certain jurors in an effort to rehabilitate them to avoid cause challenges by the State was legally insufficient because the allegations were based on nothing but conjecture). Further, to the extent that Solorzano claims that further questioning might have led counsel to use his peremptory challenges in a different manner, the claim is also based on pure speculation that will not support a claim of ineffective assistance of counsel. See Johnson v. State, 921 So. 2d 490, 503-04 (Fla. 2005) (“To show prejudice, Johnson argues that [defense counsel] could possibly have learned more about the jurors’ views and used his peremptory challenges in a different manner to obtain a more defense-friendly jury. Such speculation fails to rise to the level of ineffective assistance under Strickland [v. Washington, 466 U.S. 668 (1984)].” (footnote omitted)).

Accordingly, because Solorzano’s claim of ineffectiveness in ground four is based on nothing more than speculation, it is legally insufficient and was properly denied by the postconviction court. Further, because the claim was denied on its merits, Solorzano is not entitled to leave to amend under Spera v. State, 971 So. 2d 754, 761 (Fla. 2007) (requiring that a defendant be given at least one opportunity to amend a facially insufficient claim for relief in a motion filed pursuant to rule 3.850). Therefore, we affirm the denial of relief on this ground.

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Ground Five

Ground five of Solorzano’s motion is similar to ground four but requires a different result. In ground five, Solorzano alleged that trial counsel was ineffective for failing to question prospective juror Coyne at all during voir dire. Solorzano also alleges that “neither court, state, or defense counsel” questioned Coyne, but nevertheless Coyne was subsequently seated on the jury. The postconviction court denied Solorzano relief on this ground, stating that Solorzano had failed to “allege how the juror was incompetent or, for that matter, biased against him such that the juror should not have served on his case.”

As with ground four, it appears from the postconviction court’s ruling that it was analyzing Solorzano’s claim as one of juror bias under Carratelli. But, as with ground four, our reading of Solorzano’s claim is that it alleges a claim based on ineffective assistance of counsel for failing to conduct a meaningful voir dire—not the failure of counsel to properly preserve a challenge for cause, which was the issue addressed in Carratelli.

Claims based on ineffective assistance of counsel for failing to conduct a meaningful voir dire implicate the defendant’s constitutional right to have his case tried before a fair and impartial jury.

Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled. See Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895). Similarly, lack of adequate voir dire impairs the defendant’s right to exercise peremptory

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challenges where provided by statute or rule, as it is in the federal courts.

Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (footnote omitted); see also Lavado v. State, 469 So. 2d 917, 919 (Fla. 3d DCA 1985) (Pearson, J., dissenting), dissent adopted by Lavado v. State, 492 So. 2d 1322, 1323 (Fla. 1986). Thus, “[d]uring voir dire, counsel must question prospective jurors so that counsel can reasonably conclude that `the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.’” Mansfield v. State, 911 So. 2d 1160, 1172 (Fla. 2005) (quoting Spencer v. State, 842 So. 2d 52, 68 (Fla. 2003)). If trial counsel wholly fails to question a juror during voir dire, counsel’s conduct may be deficient. See, e.g., Mansfield, 911 So. 2d at 1172; Cole v. State, 841 So. 2d 409, 415 (Fla. 2003); Teffeteller v. Dugger, 734 So. 2d 1009, 1020 (Fla. 1999). In that case, prejudice would be inherent in the denial of the defendant’s constitutional right to be assured of a fair trial before an impartial jury. See Rosales-Lopez, 451 U.S. at 188. However, such a claim could be conclusively refuted by the record if the record shows that the trial court or the prosecutor otherwise asked sufficient questions of the venire, thus rendering any questioning by defense counsel redundant. See Mansfield, 911 So. 2d at 1172; Cole, 841 So. 2d at 415; Teffeteller, 734 So. 2d at 1020-21; Martinez v. State, 655 So. 2d 166, 168 (Fla. 3d DCA 1995). Such a claim might also be conclusively refuted by the record if the defendant personally and affirmatively accepted the jury prior to its being sworn, thus affirmatively representing to the court that the jury composition and selection process were acceptable. Cf. Muhammad v. State, 782 So. 2d 343, 353 (Fla. 2001) (finding that a defendant who personally affirmatively accepted the jury before it was sworn had “ratified the procedure

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and accepted the jury” and thus could not complain of a due process violation during jury selection on direct appeal).

Here, Solorzano alleged that defense counsel wholly failed to question Coyne during voir dire and that, as a result, counsel had no basis for determining whether Coyne was competent to sit as an unbiased juror. Importantly, Solorzano also alleged that neither the trial court nor the prosecutor questioned Coyne. Accordingly, Solorzano has stated a facially sufficient claim for ineffective assistance of counsel based on the lack of meaningful voir dire. On remand, the postconviction court must either attach portions of the transcript that conclusively refute Solorzano’s claim of an inadequate voir dire of Coyne or hold an evidentiary hearing on this issue. This disposition moots Solorzano’s claim that he should be granted leave to amend under Spera.

Ground Six

In ground six of his motion, Solorzano alleged that trial counsel was ineffective for failing to investigate and call “Bartender Dan.” Solorzano alleged that Bartender Dan, who was working at Gilligan’s on the day in question, would have testified that Solorzano had been drinking only sparingly and that he was not impaired when he left Gilligan’s. The postconviction court summarily denied relief on this ground, finding that Bartender Dan’s testimony would have been cumulative to testimony presented by Solorzano and Ms. D’Ettorre. We disagree.

Solorzano’s defense at trial was that, despite his blood alcohol level, he was not impaired and that the accident was not caused by any impairment. Instead, according to Solorzano, the accident was caused solely by his reaction to Ms. D’Ettorre

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vomiting on him. In furtherance of this defense, Solorzano testified that while he had had several drinks he was not impaired. He also presented Ms. D’Ettorre’s testimony that he was not impaired.

In this ground of his motion, Solorzano alleged that he told his counsel about Bartender Dan, who allegedly would have testified that Solorzano had no more than three drinks during the time he was at Gilligan’s and that Solorzano was not impaired when he was there. The postconviction court found that this evidence would be cumulative in light of the testimony presented by Solorzano and Ms. D’Ettorre. However, in light of the source of the proffered evidence, characterizing it as cumulative was improper.

In Skipper v. South Carolina, 476 U.S. 1 (1986), Skipper offered testimony of his “good adjustment” to prison as mitigating evidence during the penalty phase of a capital murder case. The trial court allowed Skipper, his former wife, his mother, his sister, and his grandmother to testify to his adjustment to prison. However, when Skipper sought to call two jailers and a “regular visitor” to the stand to testify to his adjustment to prison, the trial court excluded the testimony as cumulative. The Supreme Court reversed, stating:

The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses-and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges-would quite naturally be given much greater weight by the jury.

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Id. at 8; see also Valle v. State, 502 So. 2d 1225, 1226 (Fla. 1987) (finding that proffered evidence was not cumulative when it “differed in quality and substance” from that of the other witnesses).

Here, the testimony offered by Solorzano in support of his defense that he was not impaired was the sort of evidence that a jury would tend to discount. Clearly, Solorzano’s own testimony that he was not impaired would be considered self-serving. Further, other evidence had already established that Ms. D’Ettorre was so drunk that she could not walk unaided and that she had been physically ill in the parking lot of Gilligan’s. Thus, the jury would likely have tended to discredit Ms. D’Ettorre’s recollection and/or interpretation of Solorzano’s relative impairment.

Bartender Dan, however, would have been a relatively disinterested witness whose testimony on the issue would have “differed in quality” from that provided by Solorzano and Ms. D’Ettorre and would have been given greater weight by the jury. In light of this difference in the “quality” of the testimony, the postconviction court abused its discretion in finding that Bartender Dan’s testimony would have been cumulative and in summarily denying relief on this ground. Therefore, we reverse the summary denial of this ground and remand for an evidentiary hearing.

Ground Seven

In ground seven, Solorzano contends that trial counsel was ineffective for failing to investigate and call as a witness Solorzano’s brother, Roger. According to Solorzano, Roger would have testified to both Solorzano’s and Ms. D’Ettorre’s “demeanors” before they left Gilligan’s. The postconviction court denied relief on this

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ground, finding that Roger’s testimony would have been cumulative. The postconviction court is correct on this issue.

Unlike any testimony from Bartender Dan, the testimony that Roger would have allegedly given would not have been different in quality and substance from that given by Solorzano and Ms. D’Ettorre. Because Roger is Solorzano’s brother, the jury would have been just as likely to discredit his testimony as it would Solorzano’s. Therefore, the postconviction court did not abuse its discretion in finding that Roger’s proffered testimony was cumulative and that trial counsel was not ineffective for failing to present this cumulative evidence. Accordingly, we affirm the summary denial of this claim.

Ground Eight

In ground eight of his motion, Solorzano alleged that trial counsel was ineffective for failing to investigate and call as a witness “Fire Medic Ryan Kelleman.” According to Solorzano, Fire Medic Kelleman would have testified that Solorzano had vomit on his shirt at the scene, and this testimony would have supported Solorzano’s defense that the accident was caused by Ms. D’Ettorre vomiting on him. The postconviction court denied relief on this ground, finding that the proffered testimony would have been cumulative. Like it did in ground six, the postconviction court erred in its analysis of this ground for relief.

At trial, both Solorzano and Ms. D’Ettorre testified that Ms. D’Ettorre vomited in the car and all over Solorzano immediately before the accident. Solorzano’s defense was that this unexpected event, and not any alleged impairment, is what caused him to lose control of his truck. However, the State presented the testimony of

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the investigating police officer, who testified that she neither saw nor smelled vomit on Solorzano’s person or in his truck while she was at the scene investigating the accident. In his motion, Solorzano alleged that Fire Medic Kelleman, who was the first medic to arrive at the scene, would have corroborated his testimony that he had vomit all over him.

As with Bartender Dan, Fire Medic Kelleman’s proffered testimony would have differed in quality from that of Solorzano and Ms. D’Ettorre. As a medic responding to the scene, Fire Medic Kelleman would have been a disinterested witness whose testimony would allegedly have supported Solorzano’s testimony and conflicted with that of the only other disinterested witness, the investigating police officer. Because Fire Medic Kelleman was a disinterested witness, the jury would have been less likely to discredit his testimony concerning whether there was vomit on Solorzano than it would Solorzano’s testimony on the subject. Further, because Fire Medic Kelleman was a medic and a first responder, the jury might have been more likely to credit his testimony over that of the investigating officer.

Because Fire Medic Kelleman’s alleged testimony would have differed in quality from that given by Solorzano and Ms. D’Ettorre on a disputed issue, the alleged testimony was not cumulative, and the postconviction court abused its discretion in finding that it was. Therefore, we reverse and remand for an evidentiary hearing on this claim.

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

KELLY and KHOUZAM, JJ., Concur.

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

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Notes:

1. The supreme court affirmed the Fourth District’s decision in Carratelli after the postconviction court entered its order. See Carratelli v. State, 961 So. 2d 312 (Fla. 2007).

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Courtesy of David Edelstein

STATE OF FLORIDA, Appellant,
v.
STUART SIMONS, Appellee.

Case No. 1D08-1611.

District Court of Appeal of Florida, First District.

Opinion filed November 13, 2009.

An appeal from the Circuit Court for Escambia County, Michael G. Allen, Judge.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Office of the Attorney General, Tallahassee; Sydney L. Taylor, Assistant State Attorney, Office of The State Attorney, Pensacola, for Appellant.

Eric D. Stevenson of David Lee Sellers, P.A., Pensacola, for Appellee.

PADOVANO, J.

We hold that the trial court had authority to dismiss the criminal charges against the defendant in this case as a remedy for the state’s refusal to comply with a settlement agreement. The record does not reveal any breach of the agreement

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on the defendant’s part or any justification for the state’s refusal to comply. For these reasons, we affirm the order of dismissal.

The defendant, Stuart Simons, was accused of three criminal offenses: theft of a trade secret, taking and disclosing trade secrets, and grand theft. The state alleged that he had appropriated a quilting machine and computerized business records belonging to the alleged victim, who was then the defendant’s employer. The quilting machine was manufactured from a proprietary design owned by the victim, and the business records included supplier lists, customer lists, and other business information alleged to be trade secrets. At the time these criminal charges were filed, the defendant and the victim were engaged in civil litigation over the same controversy.

The parties entered into an agreement for a full settlement of the criminal case, as well as a related civil case. They agreed that the defendant would be admitted to the pretrial intervention program on the charge of disclosing a trade secret, that the two other charges would be dismissed, and that the defendant would make restitution to the victim in the amount of $4,500.00. As a part of the agreement, the victim agreed to release the defendant from civil liability and to dismiss the civil suit. The agreement was reduced to writing and signed by the

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assistant state attorney, the defendant’s lawyer, the defendant, the victim, and the victim’s lawyer in the civil case.

The trial judge approved the agreement and incorporated it into an order directing the parties to comply. A short time later, the defendant sent the victim a restitution check in the amount of $4,500.00. With the restitution in hand, the victim attempted to back out of the settlement by refusing to sign the consent form for the defendant’s admission to the pretrial intervention program.

This abrupt change in position prompted the defendant to file a motion to enforce the settlement agreement. The prosecutor opposed the motion but did not offer any evidence or argument to excuse the victim’s noncompliance. At one point in the hearing, the prosecutor suggested that after the agreement had been signed, the defendant committed an act that “could be construed as a criminal offense.” This rather speculative remark had something to do with the fact that the defendant had attended a trade show in another state, but it is not apparent from the record why this would have been unlawful. The prosecutor offered no evidence or explanation.

The trial judge entered an order granting the defendant’s motion to enforce the settlement agreement and allowed the state two weeks to nolle pros the charges in the information. When it became apparent that the state would not enter a nolle

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pros, the trial judge entered an order dismissing the case. The state filed a timely appeal to this court to seek review of the order.

The state argues that the agreement was not enforceable because the trial judge had no authority to compel the prosecutor to place the defendant in a pretrial intervention program. It is correct as a general principle that prosecutors have sole discretion to admit a defendant to pretrial intervention, see Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007); State v. Board, 565 So. 2d 880 (Fla. 5th DCA 1990), but the trial judge in this case did not order the state to enroll the defendant in the program. Pretrial intervention was merely one part of a comprehensive settlement agreement that contained many other provisions. The judge directed the state to comply with the agreement it had made with the defendant or to suffer a dismissal of the case.

This decision did not encroach on the prosecutor’s discretion. The entire agreement was not voidable at the option of the prosecutor merely because it contained a pretrial intervention agreement among its terms. If that were the case, the settlement agreement would be nothing more than a set of illusory promises. The agreement would be enforceable by the state and the victim but not by the defendant.

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Reduced to its essence, the state’s argument in this case is: (1) the prosecution has a right to decide whether a defendant may enter or remain in a pretrial intervention program; (2) the defendant was the one who breached the settlement in this case because he did not complete the pretrial intervention agreement; and (3) the defendant’s breach justified the state’s failure to comply with the settlement agreement. This is a circular argument. The only reason the defendant did not enroll in the pretrial intervention program is that he was denied enrollment by the state. There was no real breach of the agreement by the defendant and therefore no justification for the state’s refusal to honor it.

It is significant that the state attempted to withdraw from the settlement agreement after the defendant had partly performed the agreement by making restitution. If that conduct is acceptable, the promise of pretrial intervention could be used as a device to collect restitution and could then be withdrawn once the restitution is paid. This possibility is particularly troubling in a case like this one, which is closely related to a civil dispute between the defendant and the alleged victim. It is not fair to allow the alleged victim to withdraw his agreement in the criminal case after he has successfully employed the threat of prosecution to collect the money that was at issue in the civil case.

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The trial judge did not break any new ground by enforcing the agreement the parties made in this case. To the contrary, it is a settled principle of criminal procedure that, if the government fails to honor a plea agreement, the court may either enforce the agreement or allow the defendant to withdraw the plea. See Santobello v. New York, 404 U.S. 257 (1971); Tillman v. State, 522 So. 2d 14 (Fla. 1988); Spencer v. State, 623 So. 2d 1211 (Fla. 4th DCA 1993); State v. Borrego, 445 So. 2d 666 (Fla. 3d DCA 1984); Barker v. State, 259 So. 2d 200 (Fla. 2d DCA 1972). As the Supreme Court explained in Santobello, the appropriate remedy in a given case is within the discretion of the trial judge.

In some situations it may be proper to allow the defendant to withdraw the plea, but in others the only fair remedy is to enforce the agreement. For example, Florida courts have held that specific performance is a proper remedy if the defendant has partly performed the agreement, see Williams v. State, 341 So. 2d 214 (Fla. 2d DCA 1976) (the state breached its promise after the defendant had assisted the police), or if withdrawal of the plea would deprive the defendant of the benefit of the bargain, see Buffa v. State, 641 So. 2d 474 (Fla. 3d DCA 1994) (the state breached its promise to recommend a more lenient sentence). As these cases illustrate, justice is not always served merely by allowing the defendant to withdraw the plea and start over.

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The power to enforce an agreement between the prosecution and defense applies not only to plea agreements, but also to settlement agreements that do not require the defendant to enter a plea. See State v. Davis, 188 So. 2d 24 (Fla. 2d DCA 1966); Butler v. State, 228 So. 2d 421 (Fla. 4th DCA 1969). The underlying principle is the same. When the parties agree to settle a case they should be bound by their agreement. The incentive to settle a case by plea bargaining or by an agreement not requiring a plea would quickly disappear if one party could renege on an agreement without any consequence.

On the facts of this case, we support the trial judge’s decision to enforce the agreement. The defendant had partially complied by making restitution and he was prepared to comply with all of his other obligations. He was prevented from doing so only because the victim backed out of the agreement without justification.

Affirmed.

ROBERTS, J., CONCURS; HAWKES, C.J., DISSENTS WITH OPINION.

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

HAWKES, C.J., DISSENTING.

I respectfully dissent. The majority seems to find two aspects of this case so significant as to trigger a special limitation on the state’s discretion involving pretrial intervention (PTI). First, the majority emphasizes there was a “settlement agreement” in which the state agreed to offer the defendant PTI. Second, the majority emphasizes that through this “settlement agreement,” the criminal case against Simons was inexorably tied to the simultaneous civil proceeding. The crux of the majority’s opinion is that once the state signs a written offer to a criminal defendant that includes PTI, it is irrevocably bound to allow the defendant to enter the PTI program, even if the offer is withdrawn before the defendant’s enrollment. The majority misconstrues the governing statute and the prosecutor’s discretion in regards to PTI.

PTI is a grant of prosecutorial grace as it serves as an alternative to criminal prosecution. See Cleveland v. State, 417 So. 2d 653, 654 (Fla. 1982); S.K. v. State, 881 So. 2d 1209, 1212 (Fla. 5th DCA 2004). It is governed by section 948.08, Florida Statutes (2007), which gives the state complete discretion to administer the program. Whenever it is offered — and indeed it must always be offered before it can be accepted — the State is giving the defendant an opportunity to resolve the case without a criminal conviction. Thus, every case resolved through PTI has an

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offer and an acceptance, and therefore involves a “settlement agreement,” regardless of whether the offer or acceptance is reduced to writing. The majority’s insistence that this case is different because the offer was called a “settlement agreement,” therefore resulting in special limitations on the state, is contrary to the statute. Written offers, whether named “settlement agreements,” “offers,” or anything else, that involve PTI are all subject to the same statutory rules. The nomenclature chosen by the parties does not amend the statute or deprive the state of its prosecutorial discretion.

The question thus becomes whether the state had the statutory authority under section 948.08 to withdraw its offer.¹ Section 948.08 grants the state broad discretion to withdraw an offer of PTI under almost any circumstances, especially in a case such as this one. The majority’s decision to strip the state of that discretion is flawed. There are three reasons why.

First, the majority emphasizes that the state cannot withdraw its offer because the defendant had partially performed under the settlement agreement.

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The majority finds partial performance because the defendant offered to pay the $4,500 in restitution he owed to the victim. There are two problems with this premise.

Problem one is that any offer of payment made by the defendant was premature. The majority seeks to bind the state to the settlement agreement, but they do not choose to hold the defendant to the same strict compliance. The pertinent portion of the settlement agreement would have required the defendant to pay “$4,500 restitution to Martelli Enterprises . . . at a rate established by PTI.’” (emphasis added). In other words, the settlement agreement or offer stated that restitution would not be paid until after the defendant successfully enrolled in PTI. How the restitution payments were to be made during PTI would be incorporated into the PTI agreement. The defendant never enrolled in PTI. Therefore, his offer of the restitution check was not “partial performance.” The majority is using the defendant’s premature, unilateral actions to bind the state outside the terms of the agreement.

Problem two with the majority’s premise that partial performance triggers immutable rights for the defendant is that no performance ever occurred. Although the defendant offered to pay restitution by tendering the restitution check, the victim chose not to cash the check and allowed it to expire. Because the check was

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never cashed, restitution was never paid. Since restitution was never paid, there cannot be partial performance.

Second, the majority justifies its decision to deprive the state of discretion by arguing that, in the future, the state might take advantage of criminal defendants by offering PTI, getting restitution paid (making victims whole), and then withdrawing the PTI offer. This is absurd. Regardless of whether the defendant pled guilty, was convicted, or actively enrolled in PTI, he still would have been required to reimburse the $4,500 he criminally deprived the victim of. The majority’s concern that the state’s conduct here is akin to “swindling” the defendant is not supported by the record.

Third, and perhaps most important, even assuming the defendant had partially performed under the settlement agreement, and even if the state’s decision to void the agreement by withdrawing the offer was unfair, the state has the statutory authority to withdraw its offer of PTI at any time. Section 948.08(4) permits the state to resume prosecution “at any time[,]” even after PTI has been entered into, if it (the state) finds: (1) “the offender is not fulfilling his or her obligations under the plan” or (2) “public interest so requires.” Under section 948.08(4), the state alone has the discretion to decide if the “public interest” warrants the withdrawal of a PTI offer. See Batista v. State, 951 So. 2d 1008, 1009

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(Fla. 4th DCA 2007) (finding “the statute explicitly recognizes the [S]tate’s discretion . . . to admit or to terminate PTI”); Virgo v. State, 675 So. 2d 994 (Fla. 3d DCA 1996) (finding the state has “non-reviewable” discretion to terminate a defendant’s PTI at any time, even after the program has begun); State v. Rubel, 647 So. 2d 995, 996 (Fla. 2d DCA 1994) (finding the state’s termination of a defendant’s PTI is a prosecutorial decision to be kept free from judicial interference); State v. Board, 565 So. 2d 880, 881 (Fla. 5th DCA 1990) (finding “the statute creating the PTI program places no limitations on the state’s discretion to reinstate prosecution after PTI has been approved”). Each of the other District Courts of Appeal recognize the state’s sole discretion to withdraw PTI offers or to terminate PTI. The statute places no limits on situations where the PTI offer is in writing and restitution is part of the offer. In section 948.08(4), the legislature gave complete discretion to the state attorney and denied the courts any role in PTI decisions.

The majority skirts the authority of section 948.08 — indeed it does not even mention the statute — by arguing general principles of contract law and “fairness.” But statutes trump principles of contract law and “fairness.” When the defendant agreed to the settlement agreement, he agreed to the terms of the statute. To allow the defendant to rewrite the settlement agreement by prematurely offering to pay

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restitution, and then to allow the defendant’s unilateral act to rewrite section 948.08, is the true unfairness.

For the foregoing reasons, I would reverse.

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Notes:

1. I am compelled to point out that this is not a case where the defendant had actually entered or completed PTI only to have the state decide to resume prosecution. The offer of PTI was withdrawn before enrollment and after the defendant engaged in some out-of-state conduct that raised serious concerns for the victim and the state. The timeline is revealing. The defendant had a chance for prosecutorial grace (i.e. PTI), engaged in questionable — perhaps criminal behavior out-of-state, and as a consequence the PTI offer was withdrawn. All of this is consistent with the statute and prosecutorial discretion.

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Courtesy of David Edelstein

JUAN ACEVEDO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-9.

District Court of Appeal of Florida, Fifth District.

Opinion filed November 13, 2009.

Appeal from the Circuit Court for Seminole County, Marlene M. Alva, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

Juan Acevedo ["Acevedo"] appeals his conviction of burglary of a dwelling, dealing in stolen property, and grand theft. Acevedo argues that the trial court erred by denying his motion to suppress statements that he made to law enforcement. He contends that law enforcement gave a defective Miranda¹ warning by failing to advise him of his right to have counsel present during questioning. He is correct that, under the decision of the Florida Supreme Court in State v. Powell, 998 So. 2d 531 (Fla.

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2008), cert. granted, 129 S. Ct. 2827 (U.S. June 22, 2009) (No. 08-1175), the Miranda warning he was given was defective because he was told only that he had a right to counsel, not that he had a right to counsel before being interrogated and during interrogation. 998 So. 2d at 535; see also Modeste v. State, 4 So. 3d 1217 (Fla. 2009) (quashing decision of this Court in State v. Modeste, 987 So. 2d 787 (Fla. 5th DCA 2009)(en banc)).²

In an amended three-count information, the State charged Acevedo with burglary of a dwelling, dealing in stolen property, and grand theft of property valued at $300 or more but less than $20,000. Prior to trial, Acevedo filed an amended motion to suppress admissions, confessions, and statements. As grounds for suppression, Acevedo asserted that his waiver of Miranda rights was involuntary because he was intoxicated at the time of waiver. The trial court conducted a hearing on Acevedo’s motion to suppress, during which it heard testimony from Detective Alfonso Williams ["Detective Williams"] and Acevedo.

According to Detective Williams, he investigated Acevedo in relation to the burglary since an initial victim report indicated that Acevedo had prior knowledge that the victims would be away from their home. Detective Williams explained that, upon

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learning that Acevedo had pawned a Fossil watch, he met one of the victims at the pawn shop, who identified the Fossil watch as belonging to her husband.

Detective Williams stated that he eventually located Acevedo at his mother’s house. He testified that, with permission and direction from Acevedo’s mother, he and another officer entered the home and proceeded to Acevedo’s bedroom. He stated that Acevedo was “sitting on the bed in the process of getting up” when they entered the bedroom. Detective Williams testified that he informed Acevedo that he was a suspect in a burglary case and asked if he would “cooperate and go back to the police department for an interview.” Detective Williams confirmed that he also informed Acevedo that he did not have to go to the police department. Detective Williams stated that Acevedo agreed to cooperate.

According to Detective Williams, once at the police department, he escorted Acevedo to an interrogation room. Acevedo asked whether he was going to be placed under arrest and whether he was going to jail, to which Williams replied that he was not sure. He then conducted an interview of Acevedo.

The audiotape of the interview was entered into evidence during the hearing and published for the trial court. The following exchange took place between Detective Williams and Acevedo concerning Miranda rights:

Q. Okay. This is in regards to Altamonte Springs case number 2008-1416. The time is ten o’clock.

Mr. Acevedo, before we get started I’m going to advise you of your rights, and you have a right to remain silent. Anything you say will be used against you in court as evidence. You have a right to an attorney. If you can’t afford one, one will be appointed to you. Do you understand your rights?

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A. Yes, sir.

Q. I appreciate your cooperation, for you willing to talk. Thank you for that. What I’m going to do here is get you to sign this Miranda card right here, just basically saying that you’re willing to talk to me. Put your signature there. And today’s date is the 20th, put today’s date the 20th.

Thereafter, during the course of the interview, Acevedo confessed to having broken into the victims’ home, to having taken two DVD players, DVDs, a Fossil watch, and some prescription pills, and to having pawned the Fossil watch. Detective Williams repeatedly asserted that Acevedo took other missing items, but Acevedo repeatedly denied having taken the other missing items.

Detective Williams testified about the manner in which he Mirandized Acevedo as follows:

Q. Now, we heard you read him Miranda on the interview, and do you use a card when you read Miranda?

A. Yes.

Q. Did you use a card that day?

A. Yes.

Q. Is it the same card that you always use?

A. Yes, ma’am.

Q. Okay. And did you have him sign the card after you read it to him?

A. That is correct.

Q. Do you have his signed card with you today?

A. No, ma’am.

Q. And why is that?

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A. Somewhere during the transition from upstairs in the investigation room to the records vault it got misplaced. We don’t have the card.

Q. Okay. So you don’t have it anymore?

A. No, ma’am.

Q. But do you use the same Miranda card every time you Mirandize someone?

A. Yes, ma’am.

The State attempted to enter into evidence an unsigned example of the Miranda card that is used by the police department. Defense counsel objected to the admission of the unsigned Miranda card, and the trial court sustained defense counsel’s objection. On cross-examination, Detective Williams testified that he did not read verbatim from the Miranda card but rather summarized the rights.

The issue presented in this case has been the subject of two recent decisions of the Florida Supreme court, State v. Powell and Modeste v. State. The Supreme Court of the United States has accepted jurisdiction of the Powell decision, which may resolve the issue. Meanwhile, we must apply Powell. The Miranda warning given to Acevedo does not meet the requirements of Powell.

A harmless error analysis does apply to the “erroneous admission of statements obtained in violation of Miranda.” Powell, 998 So. 2d at 541-52. In order for the error to be harmless, an appellate court “must find that beyond a reasonable doubt the admission of the confession did not affect the jury’s verdict.” Id. at 542. Acevedo contends that the record evidence, absent his statements, does not establish guilt beyond a reasonable doubt for any of the charged crimes. Acevedo’s statements consisted of him confessing to having broken into the victims’ house and taken DVD

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players, DVDs, a Fossil watch, and prescription pills as well as to having pawned the Fossil watch. Absent Acevedo’s statements, the record evidence indicates that Acevedo (1) knew the victims (2) had been to the victims’ home on multiple occasions, (3) had done some work for the victims, (4) knew that the victims were going to be out of town, and (5) had pawned a Fossil watch, which was identified by the victims’ as one of the items that had been taken from their home. Given the nature of this evidence, it is impossible to say that Acevedo’s statements did not affect the jury’s verdict. Although there may be sufficient evidence to support a conviction without Acevedo’s statements, the erroneous admission of Acevedo’s statements obtained in violation of Miranda was not harmless error.

REVERSED and REMANDED.

MONACO, C.J., and TORPY, J., concur.

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Notes:

1. Miranda v. Arizona, 384 U.S. 436 (1966).

2.

We hold that when an individual is adequately advised of his right to remain silent, anything he says can be used against him, he has the right to an attorney, and if he cannot afford an attorney one will be appointed for him, Miranda does not require that the suspect also be expressly informed he has the right to have counsel present during interrogation.

State v. Modeste, 987 So. 2d at 791.

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Courtesy of David Edelstein

SAMUEL FLORES-VEGA, a/k/a SAMUEL F. VEGA, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-3529.

District Court of Appeal of Florida, Second District.

Opinion filed November 13, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County, Steven L. Selph, Judge.

Samuel Flores-Vega, pro se.

WALLACE, Judge.

Samuel Flores-Vega appeals the summary denial of all four grounds contained in his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm without discussion the postconviction court’s

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denial of claim three, but we reverse as to all other grounds and remand for further proceedings.

I. THE RELEVANT PROCEDURAL HISTORY

Mr. Flores-Vega had five separate cases pending before the circuit court. In accordance with a plea agreement, he entered admissions to violating his probation in two of these cases and nolo contendere pleas in the remaining three cases. The current appeal concerns only the three cases in which Mr. Flores-Vega pleaded nolo contendere.

In case number CF06-009006-XX, Mr. Flores-Vega was charged with burglary of a dwelling with an assault or battery while armed with a firearm, attempted felony murder, four counts of robbery with a firearm, and three counts of attempted armed robbery. Mr. Flores-Vega entered a nolo contendere plea to the three counts of attempted armed robbery in exchange for the State’s agreement to nolle pros the remaining charges. He was adjudicated guilty and was sentenced as a prison releasee reoffender to three concurrent terms of fifteen years’ imprisonment.

In case number CF06-009040-XX, Mr. Flores-Vega was charged with burglary of a dwelling and third-degree grand theft. Mr. Flores-Vega entered a nolo contendere plea to all charges. He was adjudicated guilty and was sentenced as a prison releasee reoffender to concurrent terms of fifteen years’ imprisonment for the burglary and five years’ imprisonment for the grand theft.

In case number CF06-009097-XX, Mr. Flores-Vega was charged with burglary of a conveyance and third-degree grand theft. Mr. Flores-Vega entered a nolo

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contendere plea to all charges. He was adjudicated guilty and was sentenced as a prison releasee reoffender to two concurrent terms of five years’ imprisonment.

The judgments and sentences for these three cases were rendered on April 16, 2007. The charging documents are not part of the record. Mr. Flores-Vega stipulated to the factual basis, and no description of the facts is detailed in the transcript of the change of plea hearing. The sentences in all five cases were designated to run concurrently with each other.

Mr. Flores-Vega did not appeal his judgments and sentences. On April 7, 2008, Mr. Flores-Vega filed a motion for postconviction relief raising four grounds. The postconviction court summarily denied the motion. We will consider grounds one, two, and four separately below.

II. DISCUSSION

A. Ground One — Failure to Inform That State Could Not Establish Prima Facie Case

In ground one of his motion, Mr. Flores-Vega alleged that his trial counsel was ineffective for failing to inform him about available defenses to the charges of burglary of a dwelling with an assault or battery while armed with a firearm, attempted felony murder, robbery with a firearm, attempted armed robbery, and burglary of a dwelling.

Mr. Flores-Vega claimed that his counsel failed to tell him that he could defend against the charges of burglary of a dwelling with an assault or battery while armed with a firearm, attempted felony murder, and robbery with a firearm. The allegations in Mr. Flores-Vega’s motion indicate that the State might not have been able to prove these charges. The postconviction court denied ground one with regard to

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these charges because the charges were nolle prossed and Mr. Flores-Vega was not convicted of them. For this reason, the postconviction court concluded that he could not show prejudice. We disagree. The plea form indicates that Mr. Flores-Vega was facing a life sentence on each of these charges. If the State could not present sufficient evidence to support convictions for these charges, the maximum penalty he faced was fifteen years’ imprisonment instead of life imprisonment. Under these circumstances, it is likely that Mr. Flores-Vegas would have rejected a plea agreement where he would be sentenced to fifteen years’ imprisonment in exchange for his plea.

Mr. Flores-Vega also claims that counsel did not tell him that he could defend the charges of attempted armed robbery on the ground that the victims could not identify what he had attempted to take.¹ With regard to the charge of burglary of a dwelling, Mr. Flores-Vega contends that counsel did not tell him he could argue that he did not enter the dwelling with the intent to commit an offense.

The postconviction court summarily denied ground one with regard to the charges of attempted armed robbery and burglary of a dwelling because it was “simply a creative attempt at arguing the sufficiency of the evidence inappropriately couched in terms of ineffective assistance of counsel.” However, this court reversed the summary denial of a similar claim where the defendant alleged that counsel was ineffective for failing to inform him that the State could not prove that he possessed child pornography because he lacked the requisite mens rea. Rodriguez v. State, 932 So. 2d 1287, 1290 (Fla. 2d DCA 2006). We held that “[c]ounsel’s misadvice concerning available defenses during the plea process can give rise to ineffective assistance of counsel claims.” Id.

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Thus we reverse the summary denial of the motion’s ground one and remand for further proceedings.

B. Ground Two — Failure to Inform About Double Jeopardy Issues

In ground two of his motion, Mr. Flores-Vega claimed that trial counsel was ineffective for failing to advise him that he could not be convicted of the multiple charges of robbery with a firearm and the multiple charges of attempted armed robbery because the information alleged a single taking during a single criminal episode. Mr. Flores-Vega stated that but for counsel’s ineffectiveness, he would not have entered the plea and would have proceeded to trial. Thus Mr. Flores-Vega raised a facially sufficient claim. See Weitz v. State, 795 So. 2d 1021, 1022-23 (Fla. 2d DCA 2001).

The postconviction court summarily denied this claim because it was “refuted by the case law.” The postconviction court cited Palmer v. State, 438 So. 2d 1 (Fla. 1983), superseded by statute/rule as stated in Suarez v. State, 464 So. 2d 259 (Fla. 2d DCA 1985), approved, 485 So. 2d 1283 (Fla. 1986), to support this proposition. However, Palmer did not involve a single taking and did not address a double jeopardy claim. 438 So. 2d at 2-3. The dispositive issue in a double jeopardy claim involving robbery charges “`is whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction.’” Labarbara v. State, 5 So. 3d 801, 803 (Fla. 2d DCA 2009) (quoting Brown v. State, 430 So. 2d 446, 447 (Fla. 1983)). Where a single taking from multiple victims occurs, the defendant may properly be charged for only one count of robbery. Brown v. State, 1 So. 3d 1231, 1233 (Fla. 2d DCA 2009). Thus dual convictions for attempted armed robbery based on a single taking would violate double jeopardy. Cf. Schulterbrandt v. State, 984 So. 2d 542, 544

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(Fla. 2d DCA 2008) (“[W]e conclude that Schulterbrandt’s dual convictions for attempted home-invasion robbery based on a single home invasion violated double jeopardy.”).

Accordingly, because the limited record before us does not conclusively refute Mr. Flores-Vega’s claim that the charged crimes involved a single taking, we reverse the summary denial of ground two and remand for further proceedings. See Weitz, 795 So. 2d at 1023.

C. Ground Four — Counsel’s Misadvice Concerning Plea

In ground four of his motion, Mr. Flores-Vega claimed that counsel was ineffective for misadvising him that several cases would be dismissed as a result of his plea. He alleged that he admitted the violations of probation and entered a plea to the burglary of a dwelling with an assault or battery while armed with a firearm in case number CF06-009006-XX based on the understanding that the other two cases would be dismissed. The postconviction court summarily denied this claim because the transcript of the plea hearing showed that Mr. Flores-Vega knew the nature of his pleas. However, the transcript of the plea hearing does not reveal the content of any communications between defense counsel and Mr. Flores-Vega. In fact, nothing in the record refutes Mr. Flores-Vega’s allegation that counsel told him that several cases would be dismissed as a result of his plea. Because Mr. Flores-Vega’s motion is facially sufficient and is not conclusively refuted by the record, the circuit court erred when it summarily denied this ground. See Roberti v. State, 782 So. 2d 919, 920 (Fla. 2d DCA 2001) (“Affirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea.”).

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Accordingly, we reverse the summary denial of ground four and remand for further proceedings.

III. CONCLUSION

For these reasons, we reverse the postconviction court’s order to the extent that it summarily denied claims one, two, and four of Mr. Flores-Vega’s motion, and we remand for further proceedings consistent with this opinion. Unless the record conclusively refutes these claims, the postconviction court shall conduct an evidentiary hearing. If the postconviction court again summarily denies any of these three claims, it must attach portions of the record that conclusively refute the claim. See Chandler v. State, 843 So. 2d 1046, 1047 (Fla. 2d DCA 2003). In all other respects, we affirm the postconviction court’s order.

Affirmed in part, reversed in part, and remanded.

FULMER and NORTHCUTT, JJ., Concur.

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

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Notes:

1. Mr. Flores-Vega’s double jeopardy argument concerning the attempted armed robbery charges is addressed in the discussion of ground two of his motion.

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Courtesy of David Edelstein

MICHAEL SPICER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-3561.

District Court of Appeal of Florida, Fifth District.

Opinion filed November 13, 2009.

Appeal from the Circuit Court for Brevard County, A. B. Majeed, Judge.

James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Michael Spicer, Panama City, pro se.

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Michael Spicer appeals from his aggravated battery conviction and fifteen-year prison sentence entered following a jury’s verdict of guilty on the charge. Finding ineffective assistance of counsel apparent on the face of the record, we reverse for a new trial. See, e.g., Bruno v. State, 807 So. 2d 55, 63 n.14 (Fla. 2001) (“A claim of

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ineffectiveness can properly be raised on direct appeal only if the record on its face demonstrates ineffectiveness.”).

Spicer’s sole defense at trial was self-defense. He took the stand himself to testify that he punched the victim only in self-defense after the victim attacked him. Spicer’s counsel also called another eye-witness, Spicer’s girlfriend, who corroborated this defense. The law is clear that raising self-defense does not shift the burden of proof to the defendant. Rather, “[o]nce a defendant makes a prima facie showing of self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” Fields v. State, 988 So. 2d 1185, 1188 (Fla. 5th DCA 2008) (citing Fowler v. State, 921 So. 2d 708, 711 (Fla. 2d DCA 2006)); see also Brown v. State, 454 So. 2d 596, 598 (Fla. 5th DCA 1984) (“While the defendant may have the burden of going forward with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove that the defendant did not act in self-defense beyond a reasonable doubt.”) (citations omitted).

Spicer’s counsel was obviously unaware of the law on this point, and repeatedly explained to the jury in his closing argument that it was Spicer’s burden to prove self-defense. Compounding this mistake, Spicer’s lawyer proposed an old standard jury instruction which also erroneously stated that self-defense had to be “proved beyond a reasonable doubt.” This was the instruction read to the jury.¹

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Because we can conceive of no possible strategy on this record that could justify Spicer’s lawyer shifting the burden of proof to his client as to the only real issue at trial, we find this to be one of those rare cases where counsel’s deficient performance is clear from the face of the record on direct appeal. We also find prejudice apparent on the face of the record. To show prejudice in this context, a defendant “need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Rather, prejudice is demonstrated where there is a “reasonable probability” that counsel’s deficient performance altered the outcome of the trial. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. A court’s concern should be “whether the result of a particular proceeding is unreliable because of a breakdown in the adversarial process.” Downs v. State, 453 So. 2d 1102, 1108-09 (Fla. 1984). We have carefully reviewed this record. Clearly, the State presented evidence from which a jury could have rejected the self-defense claim beyond a reasonable doubt. However, this was Spicer’s only defense at trial. And, the defense was supported by testimony that, if believed, could have been sufficient to create a reasonable doubt in the minds of jurors

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properly instructed on the law. Therefore, we find that counsel’s burden-shifting error caused a breakdown in the adversary process sufficient to undermine our confidence in the outcome of this trial.

REVERSED AND REMANDED.

MONACO, C.J., and JACOBUS, J., concur.

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Notes:

1. The erroneous instruction was replaced nine months prior to Spicer’s trial by an amended version which struck the offending language. See In re Standard Jury Instructions in Criminal Cases (No. 2006-3), 947 So. 2d 1159 (Fla. 2007). As explained in Fields, the old instruction also contained a correct statement regarding the burden of proof on this issue, but was defective because it required the jury to “`choose between two contradictory standards[,]‘” one of which erroneously shifted the burden of proof to the defendant. Fields, 988 So. 2d at 1189 (quoting Murray v. State, 937 So. 2d 277, 280 (Fla. 4th DCA 2006)). In Fields, we found fundamental error when this instruction was given without objection. Because it was Spicer’s attorney who affirmatively requested the instruction in this case, however, we have not addressed the issue using a fundamental error analysis. See Caldwell v. State, 920 So. 2d 727, 732 (Fla. 5th DCA 2006) (“An instructional mistake does not rise to the level of fundamental error when defense counsel affirmatively requests the deletion or alteration of the jury instruction that subsequently forms the basis of the requested relief in the appellate court.”); Weber v. State, 602 So. 2d 1316, 1319 (Fla. 5th DCA 1992) (“After a guilty verdict has been returned based on [a] requested instruction, defense counsel cannot be allowed to change legal positions in midstream and seek a reversal based on that error. Principles of estoppel, waiver, and invited error, forestall the possible success of such a ruse.”) (footnotes and citations omitted).

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Courtesy of David Edelstein

KORIS WILLIAM JENNINGS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-137.

District Court of Appeal of Florida, Second District.

Opinion filed November 13, 2009.

Appeal from the Circuit Court for Lee County, Thomas S. Reese, Judge.

James Marion Moorman, Public Defender, and Brad Permar and Bruce P. Taylor, Assistant Public Defenders, Bartow, for Appellant.

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

WALLACE, Judge.

Koris William Jennings appeals the revocation of his probation and the resulting sentences. Mr. Jennings challenges the trial court’s findings that he willfully

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and substantially violated the conditions of his probation. In addition, he argues that the trial court erred in sentencing him. Mr. Jennings’ arguments about the legality of his sentences are without merit, and we reject them without further comment. However, we reverse the revocation of Mr. Jennings’ probation and remand for further proceedings.

THE FACTS AND PROCEDURAL BACKGROUND

Mr. Jennings was originally sentenced in 1994 to two consecutive terms of ten years’ imprisonment arising from his conviction on two second-degree felony charges. He was released to probation on April 24, 2007, and first met his probation officer on June 7, 2007. The probation officer testified that he reviewed the terms and conditions of Mr. Jennings’ probation with him. On June 20, 2007, Mr. Jennings was stopped by a Fort Myers police officer for running a red light. The officer cited him for the violation of a traffic control device and also issued a citation because the borrowed car that Mr. Jennings was driving had a crack in the windshield.

In July 2007, Mr. Jennings submitted a required monthly report to his probation officer. The report form contained the following question: “Have you been arrested or had any contact with law enforcement during the last month?” Mr. Jennings answered this question by checking the box indicating a negative response.

On October 1, 2007, Mr. Jennings’ probation officer filed an affidavit alleging that Mr. Jennings had violated Condition 1 of his probation “by failing to make a full and truthful report to the probation officer on the form provided for that purpose.” The ground for this violation was that Mr. Jennings “falsely report[ed] that he had no contact with law enforcement [during] June.” The affidavit also alleged that Mr.

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Jennings had violated Condition 5 of his probation “by failing to live and remain at liberty without violating any law by committing the criminal offense of Driving While License Suspended/Revoked on 09/21/2007.” We address the two alleged violations in reverse order.

CONDITION 5

At the revocation hearing, Mr. Jennings testified that he did not learn that his license had been administratively suspended until several weeks after his visit to his probation officer on September 21, 2007, and had never received formal notification of this fact from the Department of Motor Vehicles. The State did not introduce any evidence to contradict Mr. Jennings’ testimony on this issue. “[R]evoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error.” Odom v. State, 15 So. 3d 672, 678 (Fla. 1st DCA 2009). Because the State failed to prove that Mr. Jennings willfully violated Condition 5 by driving with a suspended license, the trial court erred in finding that Mr. Jennings had violated Condition 5 of his probation.

CONDITION 1

Condition 1 requires that the probationer provide “a full and truthful report” to the probation officer. The report is accomplished by filling out a form. The form contains a question asking whether the probationer has had any contact with law enforcement during the reporting period.¹ Mr. Jennings’ probation officer testified at the revocation hearing that the reporting period for the form submitted by Mr. Jennings in

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July 2007 encompassed a reporting period covering the date that Mr. Jennings received his traffic citations. The probation officer also testified that Mr. Jennings had answered “No” to the question about contact with law enforcement. We can understand how, in preparing his monthly report, a person on probation for two serious felonies might overlook a traffic stop for running a red light. However, Mr. Jennings’ explanation for omitting to mention the June traffic stop in his monthly report was unconvincing. Thus the trial court’s finding that Mr. Jennings had violated Condition 1 by failing to submit “a full and truthful report” was supported by competent, substantial evidence.

CONCLUSION

On appeal from a trial court’s order revoking probation, the applicable standard of review is abuse of discretion. See State v. Carter, 835 So. 2d 259, 262 (Fla. 2002). Whether Mr. Jennings committed a willful and substantial violation of Condition 1 of his probation by falsely reporting that he had no contact with law enforcement during the June 2007 reporting period may be arguable. However, we are unable to conclude that the trial court abused its discretion in so finding.

Because we cannot determine whether the trial court would have revoked Mr. Jennings’ probation based on the violation of Condition 1 alone or whether the trial court would have imposed the same sentence based on this violation alone, we reverse the revocation of Mr. Jennings’ probation and the resulting sentences and remand for further proceedings. On remand, the trial court must consider whether Mr. Jennings’ violation of Condition 1—standing alone—warrants the revocation of his probation. If not, the trial court should restore Mr. Jennings to probation. On the other hand, if the

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trial court finds that the single violation warrants the revocation of Mr. Jennings’ probation, it may impose the same sentence as before or impose a lesser sentence. Reversed and remanded with instructions.

DAVIS and CRENSHAW, JJ., Concur.

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

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Notes:

1. We express some concern that this form is not included in the appellate record. Our efforts to obtain supplementation of the record to include a copy of this form were unsuccessful. However, the transcript of the revocation hearing indicates that the form was introduced into evidence at the hearing.

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Courtesy of David Edelstein

JOVAN LAMB, a/k/a JOVAN CORNELIUS LAMB, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-4175.

District Court of Appeal of Florida, Second District.

Opinion filed November 13, 2009.

Appeal from the Circuit Court for Polk County, Oliver L. Green, Associate Senior Judge.

James Marion Moorman, Public Defender, and Allyn Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Jovan Cornelius Lamb was found guilty by a jury of false imprisonment while carrying or using a firearm, burglary of a conveyance, grand theft auto, and fleeing

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or attempting to elude. Mr. Lamb challenges his resulting judgments and sentences and raises three points for our review. First, he argues that the trial court erred in enhancing the false imprisonment charge from a third-degree felony to a second-degree felony based on his use of a weapon during the offense. Second, he asserts that the trial court erred in imposing a prison releasee reoffender (PRR) sentence under section 775.082(9)(a)(1), Florida Statutes (2006), on the false imprisonment charge. Third, he contends that the evidence was insufficient to support his convictions and that the trial court should have granted his motion for judgment of acquittal. We find no merit in his first and third points, and we affirm on these issues without further comment. However, we reverse for correction of the PRR sentence that was imposed in error.

A defendant may be sentenced as a PRR if the defendant commits or attempts to commit any of the crimes specifically listed in the PRR statute or if the felony involved “the use or threat of physical force or violence against an individual.” § 775.082(9)(a)(1)(o). In State v. Hearns, 961 So. 2d 211, 212 (Fla. 2007), the Supreme Court of Florida considered whether the offense of battery on a law enforcement officer could qualify as a forcible felony¹ under section 776.08, Florida Statutes (2000), for the purpose of imposing a sentence enhancement under the violent career criminal (VCC)

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statute, section 775.084(1)(d). Concluding that it could not, the supreme court stated that “in determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular circumstances involved.” Id. at 212. After Hearns, this court considered whether battery on a law enforcement officer and a firefighter could be used to enhance a defendant’s sentence under the PRR statute and concluded that in accordance with Hearns, it could not. See Walker v. State, 965 So. 2d 1281 (Fla. 2d DCA 2007).

The Third and Fourth District Courts of Appeal have recently considered the precise question presented in this case—whether a PRR sentence may be based on a false imprisonment conviction—and, applying Hearns, have concluded that a conviction for false imprisonment is not subject to PRR sentencing. See Mosquera v. State, 16 So. 3d 255 (Fla. 4th DCA 2009) (“Section 775.082(9)(a) provides that certain enumerated offenses may be sentenced as a PRR, but false imprisonment is not among them.”); Sinclair v. State, 973 So. 2d 665, 665 (Fla. 3d DCA 2008) (“False imprisonment is not an enumerated felony under subparagraph 775.082(9)(a)[(]1[)].”). We agree with the Third and Fourth Districts on this question.

The State urges this court to apply the reasoning in Ragin v. State, 939 So. 2d 330 (Fla. 4th DCA 2006). In Ragin, the Fourth District held that a PRR sentence could not be imposed upon a conviction for burglary of an occupied conveyance because the burglary offense was listed as a qualifying offense in “the PRR statute and the jury did not specifically find that it involved the use or threat of physical force or violence against an individual.” Id. at 331. Based on this holding in Ragin, the State argues that because the jury in this case made a specific finding that Mr. Lamb “did

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carry, use, threaten to use, or attempt to use a firearm” during the criminal episode,² the jury’s finding was sufficient to prove that the offense involved the use or threat of physical force or violence for the purpose of imposing a PRR sentence. We conclude that the State’s reliance on Ragin is misplaced. The Ragin court’s holding on this point is inconsistent with the statutory elements test announced in Hearns. Ragin preceded the supreme court’s opinion in Hearns and the Fourth District’s own opinion in Mosquera. For these reasons, we believe that the Ragin court’s holding on this point is no longer good law.

Accordingly, we affirm the judgments and sentences on all counts with the exception of the PRR sentence imposed on the false imprisonment count. False imprisonment is clearly not a listed offense under the PRR statute. Moreover, the statutory elements of the offense of false imprisonment do not necessarily involve the use or threat of physical force or violence against an individual. It follows that the offense of false imprisonment does not qualify for PRR sentencing. Thus we reverse the sentence imposed on Mr. Lamb for false imprisonment and remand for resentencing on that offense. Mr. Lamb shall have the right to be present at resentencing.

Judgments affirmed, sentences affirmed in part and reversed in part, and case remanded for resentencing in accordance with this opinion.

CASANUEVA, C.J., and NORTHCUTT, J., concur.

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

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Notes:

1. For the purpose of section 776.08,

“[f]orcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

§ 776.08. The list of offenses subject to PRR sentencing in accordance with section 775.082(9)(a)(1) is similar, especially the phrase “[a]ny felony that involves the use or threat of physical force or violence against an individual.”

2. This finding by the jury was required in order to enhance Mr. Lamb’s conviction for the crime of false imprisonment from a third-degree felony to a second-degree felony. See § 775.087(1).

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Courtesy of David Edelstein

MICHAEL TODD HARRELL, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-4113.

District Court of Appeal of Florida, Second District.

Opinion filed November 13, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County, Joseph A. Bulone, Judge.

Michael Todd Harrell, pro se.

FULMER, Judge.

Michael Harrell challenges the summary denial of his Motion for PostC-onviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Harrell entered a negotiated plea of no contest to lewd and lascivious battery, possession of child pornography, and aggravated stalking of a child. He was sentenced on February 21, 2006, in accordance with his plea agreement to a total of ten years in prison. He did

Page 2

not file a direct appeal. In his postconviction motion, filed on November 5, 2007, he raised three grounds of ineffective assistance of counsel. We reverse for further proceedings because the postconviction court erroneously concluded that the record conclusively refutes the claims.

According to the factual basis given at the plea colloquy, this case involved a fifteen-year-old girl whom Harrell met online. Harrell began a sexual relationship with the girl, and when she tried to end the relationship, he began stalking her and set up a website to harass her. A search warrant was executed on Harrell’s residence, and Harrell’s computer was confiscated. Sexually explicit pictures of children were found on the computer.

Harrell alleged in Ground One of his motion that his attorney failed to take depositions of the victim and her parents. He alleged that there were many inconsistencies in the case that should have been investigated, and he complained that counsel did not file any pretrial motions. He asserted that counsel should have moved to suppress the illegally obtained computer and CDs and his confession, which he claimed was induced by trickery. He also claimed that counsel should have moved to dismiss based on the removal of three computers from his residence, moved to sever the charges, consulted with him about suppression of identification testimony, and investigated the fact that the victim had made the same allegations against two other men. He claimed he would not have entered the plea if he had “been advised of the relation of the facts to the law.”

The postconviction court based its denial of these claims on a finding that the claims were conclusively refuted by the transcript of the change of plea colloquy.

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The court also found that Harrell did not identify any defense his counsel could have presented which was unknown to Harrell at the time of the plea and which could have impacted Harrell’s decision to plead guilty.

We disagree with the postconviction court’s conclusion that the claims are refuted by the plea colloquy. See Mondy v. State, 6 So. 3d 1251, 1252 (Fla. 2d DCA 2009) (finding that plea colloquy did not refute claim that counsel failed to move for suppression of coerced confession). However, Harrell’s claims are facially insufficient as they are lacking sufficient factual details for a prima facie case of ineffective assistance. See Oquendo v. State, 2 So. 3d 1001, 1004 (Fla. 4th DCA 2008) (addressing conclusory allegations of ineffective assistance of counsel). Accordingly, the postconviction court should have stricken the facially insufficient claims but, pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007), given Harrell at least one opportunity to amend the motion.

In Ground Two, Harrell alleged that counsel told him that if he did not take the plea he would receive a life sentence, which amounted to a threat, coercion, and misadvice as the maximum sentence was twenty-five years. He claimed that he was led to believe that if he went to trial he was facing twenty-five years to life in prison and that counsel insisted he should take the proposed plea for ten years.¹ The postconviction court found this claim to be conclusively refuted by the plea colloquy.

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The transcript reflects that the trial judge did not discuss the maximum possible sentences for the crimes. Because the record does not conclusively refute the allegation that counsel affirmatively misadvised Harrell that he was facing life in prison if he went to trial, we reverse the denial of this claim and remand for an evidentiary hearing. See Delacruz v. State, 721 So. 2d 763 (Fla. 2d DCA 1998) (reversing denial of claim that appellant was misinformed by his trial counsel as to the maximum penalty he faced if he proceeded to trial and was found guilty).

In Ground Three, Harrell alleged that counsel was ineffective for failing to challenge the existence and validity of the search warrant used to seize three computers from his residence. The postconviction court denied this claim based on the finding that it was conclusively refuted by the change of plea hearing, specifically when Harrell acknowledged satisfaction with counsel. The court also noted that Harrell failed to identify any objection counsel should have presented with respect to the search warrant.

We disagree with the postconviction court’s conclusion that the claim is refuted by the plea colloquy. However, the claim is facially insufficient as Harrell has not identified any objection that counsel should have made with respect to the search warrant. The postconviction court should have stricken this claim but, pursuant to Spera, given Harrell the opportunity to amend.

We therefore reverse the summary denial of the motion and remand for the postconviction court to strike Grounds One and Three with leave to amend within a reasonable period pursuant to Spera and to conduct an evidentiary hearing on Ground Two.

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Reversed and remanded.

CASANUEVA, C.J., and DAVIS, J., Concur.

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

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Notes:

1. He also claims that counsel failed to advise him that sexual offender registration would attach to this sentence. This aspect of his claim was properly denied. See State v. Partlow, 840 So. 2d 1040, 1041 (Fla. 2003) (holding that “the sexual offender registration requirement is a collateral consequence of the plea, and therefore failure to inform the defendant of that requirement before he entered the plea does not render his plea involuntary”).

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Courtesy of David Edelstein