Florida Criminal Law Opinions

ROBERT EUGENE COURSON, Appellant,
v.
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-1248.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

An appeal from the Circuit Court for Okaloosa County. William F. Stone, Judge.

Nancy A. Daniels, Public Defender, David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

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

THOMAS, J.

Appellant seeks review of his sexual offender designation and argues that he qualifies for exemption from the registration requirements under section 943.04354, Florida Statutes (2008), known as the “Romeo and Juliet Law.” Because Appellant was convicted of sex crimes in two separate cases, however, he is ineligible for exemption. We affirm the trial court’s order.

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Appellant was charged with lewd and lascivious battery of a victim over 12 but under 16 years of age, in violation of section 800.04(4), Florida Statutes. Appellant was also charged with the same offense in a separate case and with a different victim. Appellant entered pleas of guilty to the lesser included offense of lewd or lascivious conduct in both cases. He entered his pleas with the understanding that if the trial judge denied his motion for exemption from the requirement that he register as a sexual offender under section 943.04354, he would be allowed to withdraw his guilty pleas. At sentencing, Appellant argued that he qualified for the exemption; the State argued that he had two separate and distinct convictions of lewd and lascivious conduct, which disqualified him. The trial court denied Appellant’s motion for exemption, and he was sentenced to three years of incarceration, followed by five years of probation, and designated a sexual offender.

On appeal, Appellant argues that he qualifies for exemption from the registration requirement under section 943.04354 because, although he was charged and convicted in two separate cases, requiring him to register as a sexual offender will lead to an absurd result where the Legislature intended to “keep ordinary individuals involved in young love from forever being branded `sexual offenders.’” The State argues that, because Appellant has convictions in two separate cases, section 943.04354 prohibits exemption from registration based on

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the plain meaning of the statute. Both parties agree that Appellant qualifies for exemption in all other respects.

Section 943.04354, Florida Statutes, provides for removal of the requirement for registration as a sexual offender or sexual predator under certain circumstances where registration would otherwise be mandated. Section 943.04354 provides:

(1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person:

(a) Was or will be convicted or adjudicated delinquent of a violation of s. 794.011, s. 800.04, or s. 847.0135(5) or the person committed a violation of s. 794.011, s. 800.04, or s. 847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011, s. 800.04, or s. 847.0135(5);

(b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and

(c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation.

§ 943.04354, Fla. Stat. (2008).

“`The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.’” Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008) (citation omitted). One of the first rules of statutory construction is that the plain meaning of the statute is controlling. Jackson County Hosp. Corp. v.

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Aldrich, 835 So. 2d 318, 329 (Fla. 1st DCA 2002). If the language is clear and unambiguous, there is no need to engage in statutory construction, and the statute should be given its plain and obvious meaning. Id.

Section 943.04354 includes a requirement that “the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011, s. 800.04, or s. 847.0135(5)” and “[i]s required to register as a sexual offender or sexual predator solely on the basis of this violation.” A plain reading of the statute reveals that offenders with multiple sex crime convictions are ineligible for exemption from the registration requirement. Appellant argues that this reading of the statute is contrary to the Legislative intent, and the State acknowledges that this result may be an unintended consequence of Appellant’s separate cases with joint dispositions. Regardless, “[t]his court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968).

Where the plain meaning of the statute excludes Appellant from qualifying for an exemption from the registration requirement, we are without authority to construe the law any differently. Appellant’s sexual offender designation is affirmed.

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AFFIRMED.

LEWIS and WETHERELL, JJ., CONCUR.

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

RACHEL MICHELLE EVANS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-1548.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

An appeal from the Circuit Court for Santa Rosa County. Ronald V. Swanson, Judge.

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

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

ROWE, J.

The appellant raises two issues: 1) Whether the trial court erred in denying her motion to suppress the firearm seized from her vehicle; and 2) whether the trial court erred in denying her motion for judgment of acquittal on the charge of

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carrying a concealed firearm. We affirm as to both issues. The first issue is affirmed without discussion; our reasoning for affirming the trial court’s denial of the motion for judgment of acquittal under the second issue is set forth in this opinion.

Under section 790.01(2), Florida Statutes, “A person who carries a concealed firearm on or about his or her person commits a felony of the third degree….” In Ensor v. State, 403 So. 2d 349 (Fla. 1981), the Florida Supreme Court construed the term “on or about the person” to mean “physically on the person or readily accessible to him.” Id. at 354. However, Florida District Courts of Appeal have disagreed on whether a firearm is “on or about the person or readily accessible” in cases involving traffic stops where firearms are found in the vehicle after the driver has exited the vehicle.

In the instant case, Deputy Goodwin testified at trial that he observed a white pick-up truck which matched a description provided by dispatch based on a 911 call, and he observed the truck swerving “rather badly.” The 911 caller provided the name of the appellant as the driver of the white pick-up, and the caller stated that the appellant possessed a firearm, had been drinking, and had threatened to kill her boyfriend. Deputy Goodwin initiated a traffic stop and asked the appellant to get out of the vehicle; at that time the deputy asked whether she had a firearm, and the appellant told him she had a firearm in the car. The deputy testified that the

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appellant had bloodshot eyes, slurred speech, smelled of alcohol, and failed the field sobriety tests. He also testified that prior to placing the appellant under arrest for driving under the influence, she became combative. Deputy Goodwin handcuffed the appellant, placed her in his car, and found the firearm in the front passenger seat under some papers.

In traffic stop cases resulting in arrests under section 790.01(2) for carrying a concealed firearm, the First and Second Districts have held that the evidence was not sufficient to support a conviction for possession of a concealed firearm where the concealed firearm was found in the vehicle after the appellant had exited, finding that the firearm was not “on or about the person or readily accessible” at the time of arrest. White v. State, 902 So. 2d 887 (Fla. 1st DCA 2005); Lamb v. State, 668 So. 2d 666 (Fla. 2d DCA 1996). However, in J.E.S. v. State, 931 So. 2d 276 (Fla. 5th DCA 2006), the Fifth District construed section 790.01(2) under very similar facts as those in the instant case and held that the evidence was sufficient to support a conviction for carrying a concealed firearm.

In White, this court found that the evidence was not sufficient to support a conviction for possession of a concealed firearm where “although appellant had previously occupied the vehicle in which the firearm was found, and which he admitted was his, he was standing outside the automobile at the time the searching officer recovered the weapon within it.” Id. at 888. Likewise in Lamb, where the

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appellant was taken into custody outside his parked automobile and the firearm was subsequently found beneath the driver’s seat, the court held that the evidence was not sufficient to support a conviction for carrying a concealed firearm where the appellant’s firearm was not readily accessible to him at the time of his arrest: “[N]o view of the undisputed evidence supports the conclusion that he carried a concealed firearm `on or about his person’ in this instance.” Id. at 668.

In J.E.S., the Fifth District held just the opposite of this court’s decision in White, holding instead that the evidence was sufficient to support a conviction for carrying a concealed firearm where the appellant was ordered out of the vehicle and a subsequent search of the vehicle revealed a firearm hidden under the seat. In J.E.S., the court found that the factual scenario in White was unclear, but since the White opinion stated that the facts were “practically identical” to those in Lamb, the court looked to the facts set out in Lamb. J.E.S., 930 So. 2d at 279-280. The Fifth District distinguished the cases by the fact that the appellant in J.E.S. was sitting in the vehicle with the concealed firearm at the time the police officer approached the vehicle, but the appellant in Lamb had been outside the vehicle for some period of time before the firearm was found. Id.

The instant case is factually very similar to J.E.S., and it can be distinguished from this court’s prior decision in White in the same way that the court in J.E.S. distinguished White and Lamb. In J.E.S., as in the instant case, the appellant was

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inside the vehicle with the concealed firearm at the time the law enforcement officer approached; the appellant was ordered out of the vehicle; and the firearm was found concealed in the vehicle immediately after.

Here, as in J.E.S., the concealed firearm had been “readily accessible” to the appellant immediately prior to the appellant being ordered out of the vehicle; the appellant was in the driver’s seat of the vehicle with the concealed firearm readily accessible to her in the passenger seat. Moreover, the record in the instant case demonstrates that Deputy Goodwin had reason to believe the driver was armed prior to stopping the vehicle and asking the appellant to get out. As argued by the appellee, it is contrary to reason to require a law enforcement officer to approach a vehicle containing an armed, angry, and intoxicated suspect in order to fulfill the statutory requirements of section 790.01(2), Florida Statutes.

AFFIRMED.

BARFIELD and CLARK, JJ., CONCUR.

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

JOSEPH EDWARD TETREAULT, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-4452.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

An appeal from the Circuit Court for Baker County. Phyllis M. Rosier, Judge.

Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.

THOMAS, J.

Appellant seeks review of his convictions and sentences for sexual battery and lewd and lascivious molestation on a child 12 years of age or older but less than 16 years of age. Appellant alleges that the trial court erred in allowing the

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State’s peremptory strikes of four prospective male jurors. In addition, Appellant argues that the trial court reversibly erred in admitting the victim’s prior testimony, as it constituted improper prior consistent statements. Finally, Appellant argues that the trial court erred in admitting testimony by a law enforcement investigator that he did not arrest every person accused of a sex offense.

We agree with Appellant on all three issues and reverse and remand for a new trial. We write only to address the jury selection issue, which moots the other evidentiary issues. We reject without comment Appellant’s argument regarding closing argument.

Appellant was charged with two counts of sexual battery by use or force not likely to cause serious personal injury (counts I and II), two counts of lewd or lascivious molestation on a child 12 years of age or older but under 16 years of age (counts III and IV), and one count of lewd or lascivious molestation of a child under 12 years of age (count V). Count V was severed from counts I-IV for the purposes of trial.

A jury was selected for trial as to counts I-IV. Of the twenty-one prospective jurors, six were male and fifteen were female. Originally, three men were picked for the jury, including Jurors McCall and Walstedt. The State utilized backstrikes on the three men, however, and the defense sought gender-neutral reasons for the strikes. The State offered that Walstedt was struck because he did

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not contribute to voir dire, and McCall was struck because the prosecutor was concerned that he was a student, was not working, had worked with kids “giving advice or something,” and the State did not feel comfortable with him. The trial court accepted the State’s reasons as gender-neutral.

Florida follows a three-step procedure when one party objects to another’s use of a peremptory challenge on the basis of gender. See Melbourne v. State, 679 So. 2d 759 (Fla. 1996); Welch v. State, 992 So. 2d 206 (Fla. 2008). First, the objecting party must make a timely objection, requesting that the striking party provide its reason for the strike. Melbourne, 679 So. 2d at 764. The defense made such objections here. Second, the burden shifts to the proponent of the strike to present a “gender-neutral explanation” for striking the disputed juror. Id. Here, the State responded with facially gender-neutral explanations for the use of the strikes. Third, the court must determine, given all the attendant circumstances, whether the proffered explanation is pretext for a discriminatory motive. Id.

In Melbourne, the Florida Supreme Court provides the following guidance for this last inquiry:

The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. . . . Accordingly, reviewing courts should keep in mind two principles when enforcing the above guidelines. First, peremptories are presumed to be exercised in a nondiscriminatory manner. Second, the trial court’s decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.

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Id. at 764-65 (footnotes omitted).

The trial court properly proceeded to step three, which considers whether the proffered explanation is genuine or a pretext. In allowing the strikes, however, the trial court did not make express rulings explaining why it found that the State’s reasons for striking the prospective jurors were genuine. Instead, with respect to the strikes of McCall and Walstedt, the court stated, “I’ll accept the State’s gender — reasons for gender-neutral selection.”

Implicit in its allowance of peremptory strikes are findings that the explanations were genuine. See Fleming v. State, 825 So. 2d 1027, 1029 (Fla. 1st DCA 2002) (stating that “we must conclude that, by overruling the defense’s objections, the lower court made an implicit finding that the state’s strikes were genuine.”); Bowden v. State, 787 So. 2d 185, 188 (Fla. 1st DCA 2001). In Simmons v. State, 940 So. 2d 580 (Fla. 1st DCA 2006), however, this court held that the record did not indicate that the trial court reached the third step in the Melbourne analysis because when the defense challenged the prosecution’s reason for striking a potential juror, the trial court stated, “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.” Simmons, 940 So. 2d at 582. This court continued, “By focusing merely on the fact the State offered a seemingly race-neutral reason, and accepting that the prosecution’s reason for the

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strike may be solely for the benefit of the defense, it appears that the trial court bypassed the genuineness inquiry required in the Melbourne analysis.” Id. at 582-83.

Like Simmons, the court below bypassed the third step in the Melbourne analysis and focused solely on the fact that the State’s reasons behind its peremptory strikes were gender-neutral. It did not make a finding, implicit or otherwise, that the gender-neutral reasons were genuine.

Accordingly, because the record does not indicate that the trial court engaged in the required third step of the Melbourne analysis, we are required to reverse and remand for a new trial. See Simmons, 940 So. 2d at 583 (citing Jones v. State, 787 So. 2d 154 (Fla. 4th DCA 2001).

REVERSED and REMANDED.

HAWKES, C.J., and BENTON, J., CONCUR.

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

LEON FRANKLIN, JR., Petitioner,
v.
STATE OF FLORIDA, et al., Respondents.

Case No. 1D09-5734.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

Petition for Writ of Habeas Corpus — Original Jurisdiction.

Leon Franklin, Jr., pro se, Petitioner.

Bill McCollum, Attorney General, Tallahassee, for Respondents.

PER CURIAM.

This petition for writ of habeas corpus challenges the judgments and sentences imposed in Madison County Circuit Court case number 95-131-CF.

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This petition for writ of habeas corpus is frivolous because it has no arguable basis in law or fact. See § 57.085(9)(a), Fla. Stat. (2009). The writ of habeas corpus is available only if the petitioner shows probable cause to believe that he or she is detained without lawful authority. § 79.01, Fla. Stat. Petitioner is currently detained by the Florida Department of Corrections under the lawful authority of judgments and sentences for first-degree murder and shooting into a dwelling. State v. Franklin, Case No. 95-131-CF (3rd Cir., Madison Co. Fla.).

Because this was petitioner’s thirty-fourth action in this court concerning his 1995 judgments and sentences, we ordered him to show cause why he should not be sanctioned pursuant to Florida Rules of Appellate Procedure 9.410; and why such sanctions should not include a prohibition against appearing as a litigant in this court unless represented by counsel.

Petitioner’s response did not show cause why this court should not limit his ability to file pro se actions and papers in this court. Considering petitioner’s incessant filing of proceedings in this court, we find that petitioner has abused the judicial process and hindered the ability of this Court to devote its resources to the timely consideration of genuine disputes and colorable claims by those who have not abused the system. See Pettway v. McNeil, 987 So. 2d 20 (Fla. 2008); Brown v. McNeil, 34 Fla. L. Weekly D2361 (Fla. 1st DCA Nov. 17, 2009).

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Accordingly, the petition for writ of habeas corpus is DENIED. In addition, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Leon Franklin, Jr., that are related to his convictions and sentences in Madison County Circuit Court case number 95-131-CF, unless signed by a member in good standing of The Florida Bar. If petitioner violates this order, he may be subject to further appropriate sanctions, including disciplinary procedures pursuant to the rules of the Florida Department of Corrections. See § 944.279(1), Fla. Stat.

HAWKES, C.J., BENTON and THOMAS, JJ., CONCUR.

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

CHRISTOPHER SIMMONS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-2346.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

An appeal from the Circuit Court for Washington County, Allen L. Register, Judge.

Christopher Simmons, pro se, Appellant.

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

PER CURIAM.

Christopher Simmons appeals an order denying his petition to remove the requirement that he register as a sexual offender which was filed pursuant to section 943.04354, Florida Statutes (2008). The trial court erroneously denied the petition based upon a finding that, because Simmons had been adjudicated guilty

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of violating section 800.04, Florida Statutes (2000), he was ineligible for relief. See § 943.04354(1)(a) (permitting a defendant to seek relief if he was convicted of violating section 800.04 or if adjudication of guilt is withheld). We reverse and remand for further proceedings.

Section 943.0435, Florida Statutes (2000), provides that a defendant convicted of violating section 800.04, as well as other enumerated offenses, is automatically designated a sexual offender and required to comply with the registration requirements of the statute. However, section 943.04354 permits the defendant to petition the sentencing court for removal from the sex offender registry if he satisfies the criteria of that statute. Miller v. State, 17 So. 3d 778, 780 (Fla. 5th DCA 2009). Here, the trial court erroneously concluded Simmons was not entitled to relief because he had been adjudicated guilty of violating section 800.04 and did not consider the other requirements of the statute. Accordingly, we must reverse for further proceedings. Upon remand, should an evidentiary hearing be held, Simmons should be given an opportunity to participate. Scott v. State, 717 So. 2d 908, 912 (Fla. 1998).

REVERSED and REMANDED.

BARFIELD, VAN NORTWICK, AND CLARK, JJ., CONCUR.

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

TAVARES ANTONIO McDUFFIE, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-2104.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

An appeal from the Circuit Court for Clay County. William A. Wilkes, Judge.

Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.

CLARK, J.

Appellant, Tavares Antonio McDuffie, challenges his conviction entered after jury trial on an amended information. He argues on appeal that the filing of the amended information during the speedy trial rule’s recapture period precluded his trial on that amended information. See Fla. R. Crim. P. 3.191(p).

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Because the propriety and timeliness of the amended information was not raised in the trial proceedings, it has not been preserved for appeal. State v. Olivo, 759 So. 2d 647 (Fla. 2000).

Appellant’s challenges to evidence admitted over defense counsel’s objections are unsupported by any showing in the record that the trial court abused its discretion.

The judgment on appeal is AFFIRMED.

BARFIELD and ROWE, JJ., CONCUR.

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

STATE OF FLORIDA, Appellant,
v.
JAY ALAN ODOM, Appellee.
STATE OF FLORIDA, Appellant,
v.
RAYMOND E. SANSOM, Appellee.

Case No. 1D09-5158.

Case No. 1D09-5160.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

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

Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, for Appellant.

James P. Judkins and Larry D. Simpson of Judkins, Simpson & High, Tallahassee, for Appellee Odom.

Stephen S. Dobson, III, and Richard H. Smith of Dobson, Davis & Smith, Tallahassee, for Appellee Sansom.

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PER CURIAM.

Citing in its notice of appeal to section 924.07, Florida Statutes (2009), as its jurisdictional authority for doing so, the state appeals the lower tribunal’s “Order on Motions to Dismiss” in two related criminal proceedings. Appellees move to dismiss the appeals for lack of jurisdiction, asserting that the order is not final and not within the class of nonfinal orders appealable by the state under the statute and corresponding rule of appellate procedure. We sua sponte consolidate the cases for disposition by this opinion, and dismiss the appeals for lack of jurisdiction.

Appellees were the subject of a grand jury investigation into certain alleged instances of misconduct. In brief, the grand jury found that at the request of and for the benefit of his friend Odom, Sansom arranged with codefendant Richburg, President of Okaloosa-Walton Community College (now known as Northwest Florida State College), to secure a legislative appropriation to fund the construction of a hanger facility at the Destin airport. The plan was to have the college construct the building, include some classrooms in the space so it could be called an educational facility for purposes of securing funding, then lease the bulk of the space to Odom for his private use in connection with his aviation business. Because of his positions as Chair of the House Appropriations Committee and Speaker-Designate, Sansom was able to bypass the normal screening procedures and secure the appropriation.

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Based on these findings, the grand jury returned indictments against Odom and Sansom for official misconduct in violation of section 839.25(1)(b). In material part, the indictments alleged that appellees participated in the falsification of “an official record or official document, the 2007-2008 General Appropriations Act and/or the Joint Use Project Note, with corrupt intent to obtain a benefit for any person, or to cause harm to another The grand jury also indicted Sansom for perjury, alleging that he made false sworn statements when “he testified that the building that was the subject of the Grand Jury investigation was not intended for private use and/or the increased funding in 2008 to Northwest Florida State College was at the request of the college ….” Appellees moved to dismiss the indictments and following a hearing, the trial court entered the order for which the state now seeks review. As to the official misconduct charge, the court found that with regard to the alleged falsification of the Appropriations Act, “acts of legislation cannot, as a matter of law, be falsified … by the misrepresentations of a single member [of the legislature] as to the act’s purpose.” The circuit court thus concluded that the motions to dismiss as to the charges of official misconduct for falsifying the Appropriations Act would be granted. However, as to the alternative allegation that the Joint Use Project Note had also been falsified, the circuit court found as follows:

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The record before me is simply inadequate for me to make a determination as to whether a falsification of this document may constitute a violation of the statute. The facts relative to this document are not set forth in the motions to any degree, nor is there any argument related to it. I cannot tell from the record what exactly it is and how it relates to the Appropriations Act.

Additionally, the court ruled that appellee Sansom’s grand jury testimony regarding the intention of the appropriation was an expression of opinion and could not form the basis of a perjury prosecution, although the alleged statement that the increased funding was requested by the college was a statement of fact, and thus could support the perjury charge.

The decretal portion of the circuit court’s order thus provided: For the reasons set forth above, it is ORERED (sic) AND ADJUDGED that the motions as to the charges of Official Misconduct for falsifying the Appropriations Act, and the perjury charge against defendant Richburg¹ are hereby granted. In all other respects, the motions are denied.

In support of their motions to dismiss the state’s appeals, appellees argue that although section 924.07(1)(a) and Florida Rule of Appellate Procedure 9.140(c)(1)(A) contain identical language authorizing the state to appeal from orders “dismissing an indictment or information or any count thereof,” the indictments here have not been dismissed nor has any count of those indictments been dismissed. The only reported instances where the state has been permitted to

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appeal without an outright dismissal of charges are distinguishable on their facts because they involved orders in which the trial court reduced the original charge to a lesser-included offense as a result of pretrial motions to dismiss. In that situation, the appellate court viewed the trial court’s action as being the “functional equivalent of a dismissal of an information or any count thereof.” See State v. Smulowitz, 482 So. 2d 1388, 1389 (Fla. 3d DCA 1986); see also Hankerson v. State, 482 So. 2d 1386, 1387 (Fla. 3d DCA 1986) (finding that “[analytically, an order reducing a charge set forth in the information or indictment to some lesserincluded offense is, despite its label, an order dismissing the charge in the information.”). Moreover, the same court subsequently relied on this reasoning in another case to conclude that the state could likewise appeal an order that reduced charges post-trial, but the Supreme Court reversed in Exposito v. State, 891 So. 2d 525 (Fla. 2004), holding that section 924.07(1) does not grant the state the right to appeal from an order that “effectively” dismisses an information that is “in legal effect a judgment of acquittal.” Id. at 531. The court noted that equating a reduction of charges to a dismissal or judgment of acquittal conflicts with the wellestablished rule that courts are not at liberty to add words to statutes and must give the statutory language its plain and ordinary meaning.

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Although Exposito did not expressly overrule Hankerson or Smulowitz, it casts doubt on their continued viability. Be that as it may, we conclude that Hankerson and Smulowitz are nonetheless not controlling because the rationale employed in those cases depended on the conclusion that the trial courts had “dismissed” charges made in the respective informations, albeit merely by reduction to lesser-included offenses. In contrast, the trial court’s order here did not operate to dismiss, by reduction or otherwise, the official misconduct and perjury charges lodged against appellees in the grand jury’s indictments. The state’s right to appeal is a limited one that is strictly governed by statute. See State v. Gaines, 770 So. 1221 (Fla. 2000). Statutes affording the state the right to appeal should be narrowly construed, and as the court recognized in Exposito, the statutory language must be given its plain and ordinary meaning. Exposito at 528. Plainly, the circuit court’s order here does not dismiss an indictment or any count thereof, and because there is otherwise no statutory authority for the state to appeal in this circumstance, we are without jurisdiction.

APPEALS DISMISSED.

BARFIELD, WOLF, and LEWIS, JJ., CONCUR.

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

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Notes:

1. The state’s appeal of the order as it relates to the dismissal of the perjury charge against Richburg remains pending and is unaffected by this opinion.

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STATE OF FLORIDA, Appellant,
v.
S.P., a Child, Appellee.

No. 4D08-4731

District Court of Appeal of Florida, Fourth District.

December 30, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert J. Fogan, Senior Judge; L.T. Case No. 08-4186 DLA.

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

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

HAZOURI, J.

The State of Florida appeals from the dismissal of a petition for delinquency for loitering and prowling filed against S.P., a child. At the time of the adjudicatory hearing on the charges, S.P. moved to dismiss because the state amended its charging document, which originally charged S.P. with loitering and prowling by attempting to open doors of various vehicles for no legitimate purpose to attempting to open doors on a number of residences. Based upon this change in the charging document, the trial court granted S.P.’s motion to dismiss. We reverse.

S.P. was arrested on a charge of loitering and prowling. The petition for delinquency on the charge alleged that S.P. loitered and prowled when he “attempt[ed] to open the doors of various vehicles for no legitimate purpose.” However, according to the probable cause affidavit, S.P. was observed by the police trying the doors on a number of residences—not trying car doors.

In filing his motion to dismiss the amended petition, S.P. argued that the amended petition alleged an entirely different basis in action and in fact, making it a new and different law violation, as well as untimely because it was filed after the initial ninety-day period following his arrest. S.P. also argued that the change was substantive, with the petitions actually alleging different law violations, which subjected the new petition to the ninety-day speedy trial period. The state argued that it merely amended to correct a clerical error from vehicles to residences and, therefore, there was no new substantive violation because the charge of loitering and prowling remained the same, with the same

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elements. The state reasoned that it had to prove S.P. loitered or prowled in a place at a time or in a manner not usual for law abiding citizens, but did not have to prove he was opening vehicle doors or doors of residences. We agree.

We review an order granting a motion to dismiss de novo. State v. N.F., 924 So. 2d 912, 913 (Fla. 5th DCA 2006).

The state relies upon M.F. v. State, 583 So. 2d 1383 (Fla. 1991). In M.F., the defendant was arrested on May 31, 1989, when he bought rock cocaine from an undercover officer. In the state’s petition for delinquency filed on June 27, it alleged that M.F. “did unlawfully and feloniously sell, purchase, manufacture, or deliver, or possess with intent to sell, purchase, manufacture, or deliver a controlled substance, to-wit: CANNABIS, . . . in violation of [section] 893.13 [of the] Florida Statutes [1987].” Id. at 1384. The adjudicatory hearing was set for sixty-nine days after the date of arrest, at which time the state orally moved to amend to change the controlled substance to cocaine, a second degree felony. Over objection, the trial court permitted the amendment but granted a thirty-day continuance. In 1989, section 39.05(6), Florida Statutes (1987), required that a petition be filed within forty-five days of arrest. The defendant filed a motion to dismiss arguing that the state filed a new charge outside the forty-five-day filing period. The state responded that it was merely correcting a technical error. The trial court denied the motion to dismiss and the district court affirmed.

On appeal to the supreme court, the denial of the dismissal was affirmed. Initially, the court noted that “[o]nce a proper petition for delinquency has been timely filed, the state may correct defects or variances by amending the petition prior to the adjudicatory hearing.” Id. at 1385 (citing Florida Rule of Juvenile Procedure 8.110(c) and (d)).¹ It further held:

[D]ue process of law requires the state to allege every essential element when charging a violation of law, either in adult criminal or juvenile proceedings, to provide the accused with notice of the allegations. . . . Accordingly, a charging document is subject to dismissal if it fails to properly allege every essential element of the offense or if it is not filed within the period of time allowed by law.

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This Court has carved out an exception to the filing requirement where the state, because of a clerical-type error made in good faith, improperly alleges the elements of an offense in a timely-filed charging document. In such instances, we have held that the state may amend the charging document to correct the error after the applicable statutory period has elapsed, provided that the amendment was not intended to actually change the substantive charge and did not prejudice the rights of the accused to present a defense and get a fair trial.

Id. at 1385-86 (citations omitted).

The supreme court concluded by stating the following applicable principal:

We hold that the state may amend a timely-filed juvenile delinquency petition after the forty-five-day filing period has elapsed if the amendment, made prior to the adjudicatory hearing, is intended to merely correct a good faith clericaltype error and not to change the substantive allegation for other reasons. However, under no circumstances may the state amend a petition if the amendment prejudices the juvenile’s rights to prepare a defense and receive a full and fair adjudicatory hearing.

Id. at 1389. In applying this principle, the supreme court noted that the juvenile did not dispute that from the outset he had actual knowledge of the contents of the arrest report, which alleged the sale of cocaine rather than cannabis. The evidence showed it was a clerical error the state wanted to correct. The supreme court approved the trial court’s decision to permit the state to amend. M.F. did not show the amendment prejudiced his right to prepare a defense and get a fair hearing.

In the instant case, the defense had access to the police reports, which clearly referred to residences, not vehicles. The amended petition did not change victims or allege a different violation. Therefore, S.P. failed to show how he was prejudiced by the change in the Amended Petition for Delinquency. We, therefore, reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded for further proceedings.

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DAMOORGIAN and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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STATE OF FLORIDA, Appellant, v.
JOHN T. GEOGHAGAN, Appellee.

Case No. 1D07-5630.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

An appeal from the Circuit Court for Duval County. John M. Merrett, Judge.

Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellee.

WOLF, J.

The State appeals a downward departure sentence. The reasons given by the trial court for imposing a departure were invalid; therefore, we reverse and remand for resentencing within the guidelines.

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Appellee pled guilty to one count of failure to comply with sexual offender requirements after twice failing to report as a sexual offender every 6 months as required pursuant to section 943.0435(14)(a), Florida Statutes (2006). The plea was not as a result of a plea bargain. Following a sentencing hearing, the trial court initially entered a downward departure sentence without reasons. Appellee then filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b), requesting written reasons for departure. The trial court conducted a hearing on the motion and entered the following written findings:

1. [Appellee] entered a plea of Guilty to the offense of Failure to Comply with Sexual Offender Requirements.

2. [Appellee] admitted that he failed to properly report to the Jacksonville Sheriff’s Office.

3. [Appellee] was convicted of Lewd and Lascivious Conduct on August 21, 1997, Case Number 1997-CF-004573.

4. [Appellee] was placed on probation for five years with general and specific conditions.

5. [Appellee] successfully completed all general and specific conditions of probation and the probation was terminated in August, 2002.

6. [Appellee] had no other criminal involvement since that date.

7. [Appellee] is married, has one child, age 15 and is gainfully employed.

8. This offense was committed in an unsophisticated manner in that [appellee] neglected to do what was required at the time it was required and when he attempted to correct the error he was arrested.

9. [Appellee] had numerous personal problems which obviously contributed to his neglect.

10. [Appellee] has shown remorse for his neglect which led to the commission of the offense.

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A trial court may not impose a sentence that departs from the statutory guidelines “unless there are mitigating circumstances or factors present as provided in s. 921.0026.” § 921.00265(1), Fla. Stat. (2006). Section 921.0026, Florida Statutes (2006), provides a non-exclusive list of mitigating circumstances that reasonably justify departure.

In Banks v. State, 732 So. 2d 1065, 1067-68 (Fla. 1999), the supreme court outlined the two-step process for imposing a departure sentence. “First, the [trial] court must determine whether it can depart, i.e., whether there is a valid legal ground,” explaining “[l]egal grounds are set forth in case law and statute.” Id. at 1067 (emphasis in original). “This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.” Id. “Second . . . the trial court further must determine whether it should depart . . . weigh[ing] the totality of the circumstances in the case, including aggravating and mitigating factors.” Id. at 1068 (emphasis in original).

Here, the trial court’s reasons for departure fail step 1 of the Banks test as they constitute legally invalid reasons for departure.

First, the trial court found appellee pled guilty. However, it is well established that an open plea is not a valid reason for departure. See § 921.0026(2)(a), Fla. Stat. (providing a valid mitigating circumstance for departure

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is “[t]he departure results from a legitimate, uncoerced plea bargain” (emphasis added)); State v. Brannum, 876 So. 2d 724, 727 (Fla. 5th DCA 2004) (finding an open plea is “not a valid reason for departure sentence where there was no plea agreement entered into between the defendant and the State.”).

Second, the trial court found appellee admitted he failed to re-register as a sexual offender. However, a confession is an invalid reason for departure. Section 921.0026(2)(i) provides a valid reason for departure is that the defendant “cooperated with the State to resolve the current offense.” However, “a departure sentence cannot be based on cooperation where the assistance does not result in solving any crimes or the arrest of other persons.” State v. White, 894 So. 2d 293, 294 (Fla. 2d DCA 2005) (finding invalid the trial court’s reason for departure that the defendant confessed and allowed the police to search his home).

Third, the trial court noted appellee’s underlying conviction for lewd and lascivious conduct. Fourth, the trial court noted he was placed on probation for 5 years. These findings are informational and do not constitute reasons for departure.

Fifth, the trial court found appellee successfully completed probation in August 2002. Sixth, the trial court found appellee had no criminal history since completion of probation. However, a “defendant’s prior record, or lack thereof is an invalid reason for departure because the “trial court lacks discretion to grant a

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downward departure sentence based on factors already taken into account by the sentencing guidelines.” State v. Stephenson, 973 So. 2d 1259, 1264-1265 (Fla. 5th DCA 2008) (holding trial court’s finding that the defendant “kept his nose clean” for 14 months since his release from prison was an invalid reason for departure). See also State v. Raskiewicz, 541 So. 2d 1217 (Fla. 2d DCA 1989) (finding fact that the defendant had committed no additional crimes since being placed on probation was an invalid reason for departure because it was taken into account by the sentencing guidelines).

Seventh, the trial court found appellee is married, has a child, and is employed. However, “Florida courts have consistently held that family support concerns are not valid reasons for downward departure.” State v. Walker, 923 So. 2d 1262, 1265 (Fla. 1st DCA 2006). See also Rafferty v. State, 799 So. 2d 243, 248 (Fla. 2d DCA 2001) (concluding “it would not be good public policy for the legislature to punish those with families to support less than those without families”); State v. Bray, 738 So. 2d 962, 963 (Fla. 2d DCA 1999) (stating “[w]hile we are not unsympathetic to the trial judge’s concern that incarcerating Bray may place the burden of caring for the child on the taxpayers of this state, such a consideration cannot be employed in determining whether one defendant will be incarcerated while another will be given a nonincarcerative sentence”); State v. Warren, 629 So. 2d 1014, 1015 (Fla. 4th DCA 1993) (listing the fact that the

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defendant had an elderly mother who needed his support as one of several insufficient reasons for downward departure).

Eighth, the trial court found this offense was “committed in an unsophisticated manner in that [appellee] neglected to do what was required.” Tenth, the trial court found appellee showed remorse. Section 921.0026(2)(j) provides as a mitigating factor for downward departure that “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” However, “[a]ll three components-that the crime was committed in an unsophisticated manner, that the crime was an isolated incident, and that the defendant has shown remorse-must be present in order for a downward departure sentence to be imposed under the statute.” State v. Gaines, 971 So. 2d 219, 220 (Fla. 4th DCA 2008) (citing State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005)).

Here, the court failed to find the second element of section 921.0026(2)(j) was present, that the incident was isolated. Furthermore, the record does not support such a finding. Section 943.0435(14)(a), which requires that “[a] sexual offender must report in person each year during the month of the sexual offender’s birthday and during the sixth month following the sexual offender’s birth month,” became effective on September 1, 2005. The record indicates appellee’s birthday is June 2. Therefore, he would have been required to report initially in June 2006

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and every six months thereafter. Here, appellee was charged with failing to report in December 2006 and June 2007. Therefore, appellee failed to register two of the three times he was required to register between June 2006 and June 2007, which does not constitute an isolated incident. Therefore, reasons 8 and 10, that appellee committed the offense in an unsophisticated manner and showed remorse, are invalid reasons for departure because the incident was not also isolated.

Ninth, the trial court found appellee had numerous personal problems that contributed to his neglect. The only evidence presented concerning appellee’s personal problems was his testimony regarding his employment. During the initial sentencing hearing, appellee testified he forgot to register because he had just been laid off from work; however, during the rule 3.800(b) motion hearing, he testified he forgot to register because he had just started a new job and was working 7 days a week.

To the extent the trial court relied on evidence presented during the rule 3.800(b) motion hearing, the trial court erred. While evidentiary hearings are permissible as part of rule 3.800(b) proceedings, as stated in the Committee notes to the 1996 amendment creating rule 3.800(b), the purpose of the rule is to “correct sentencing errors in the trial court and preserve the issue.” A rule 3.800(b) motion hearing was not intended to allow appellee to present new evidence of factors justifying departure, which was his burden to demonstrate during the initial

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hearing. See State v. Hall, 981 So. 2d 511, 513 (Fla. 2d DCA 2008) (”The defendant has the burden of presenting competent, substantial evidence to support the reason or reasons articulated for the downward departure sentence.”).

Therefore, the only evidence upon which the trial court could have properly relied was appellee’s testimony during the sentencing hearing that he forgot to register because he had been laid off from his job. This reason for departure is not one of the statutory mitigating circumstances provided in section 921.0026, nor one that appears to be consistent with legislative sentencing policies. It would be illogical to find that legislative sentencing policy intended for unemployed sexual offenders who failed to report to be punished less than those who were employed. Therefore, the trial court’s finding that appellant had numerous personal problems, based on his testimony that he had been recently laid off from his job, does not constitute a legally valid reason for downward departure.

Because the trial court failed to provide legally valid reasons for appellee’s downward departure sentence, we reverse and remand for resentencing within the guidelines. See Pope v. State, 561 So. 2d 554, 556 (Fla. 1990) (finding resentencing must be within the guidelines “when the initial reasons [for departure] had been reversed by an appellate court”); State v. Owens, 848 So. 2d 1199 (Fla. 1st DCA 2003) (reversing and remanding for resentencing within the guidelines where the trial court’s reason for departure was invalid).

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REVERSED.

HAWKES, C.J., and WETHERELL, J., CONCUR.

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

SEAN G. HAGAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-2652.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

An appeal from the Circuit Court for Nassau County, Robert M. Foster, Judge.

Sean G. Hagan, pro se, Appellant.

Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

HAWKES, C.J.

The defendant challenges the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record conclusively refutes his claim of entitlement to additional jail credit, we affirm.

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In a plea agreement, the defendant expressly stipulated that he would receive jail credit for time served “since October 2, 2007″ in exchange for his guilty plea. He now claims he did not knowingly waive his right to receive credit for time served prior to October 2, 2007.

The inclusion of specific language indicating the specific date from which the defendant’s credit for time served would count towards his current sentence is sufficient to demonstrate he knowingly and voluntarily waived his right to have any credit he may have accrued prior to that date count towards his current sentence. See Johnson v. State, 974 So. 2d 1152 (Fla. 3d DCA 2008) (holding “a provision in a plea agreement that the defendant is to be awarded credit for time served from a specific date effectively waives any claim to credit for time served before that date”); see also Joyner v. State, 988 So. 2d 670 (Fla. 3d DCA 2008) (holding a stipulation in a plea agreement for jail credit from a specific date waives any claim to credit for prior time served).

Accordingly, we affirm the trial court’s denial of appellant’s Rule 3.800(a) motion to correct illegal sentence.

AFFIRMED.

THOMAS, J., CONCURS; BENTON, J., DISSENTS WITH OPINION.

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

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BENTON, J., dissenting.

The plea agreement in the present case does not demonstrate a voluntary relinquishment of a known right. The phrase “Credit time served since 10/2/07″ in the plea agreement, the sole foundation on which the majority opinion rests, is entirely consistent with the view that the parties believed—as was in fact the case—that the appellant had already received credit for the time he had spent in jail before October 2, 2007.

Appellant filed a verified motion to allow correct jail credit¹ in April of 2009 alleging the dates he had been incarcerated and that he was “entitled to a total of 449 days’ Credit for County Jail time Served prior to the aforementioned

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Sentence.” The trial court entered the order under review, styled order denying motion to allow correct jail credit, stating:

The Court has reviewed defendant’s Motion to Allow Correct Jail Credit and finds that on September 4, 2008, defendant expressly agreed to “credit time served since 10/2/07.” Attached hereto is a copy of defendant’s Admission of V.O.P. and Negotiated Sentence — Form 2.

In a motion for rehearing, appellant asserted that “the court apparently overlooked that the Defendant only agreed that he is entitled to jail credit starting on 10/2/07, and did not agree or waive his additional jail credit . . . as part of the plea agreement.” After the motion for rehearing was denied, this appeal followed.

At issue is whether the appellant waived credit for the 84 days he spent in jail before he was originally sentenced to time served and released on probation on June 14, 2007. That he was released at that time shows that he actually received the credit then. Later when his probation was revoked, he signed a plea agreement which recited:

My attorney, the prosecutor and I have negotiated my sentence in this case in that the prosecutor will recommend to the Judge of this Court that I be sentenced to: Probation terminated and revoked, sentenced to 30 mos. Dep’t Corrections, costs, fines, fees converted to judgment. Credit time served since 10/2/07.

He had been apprehended on October 2, 2007, while on probation. He spent the following year in jail, and was still in custody when his probation was revoked on September 28, 2008. Upon revocation of probation, he was sentenced to thirty

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months in prison with credit for 365 days in jail, but with no credit for the time he had spent in jail between his initial arrest on March 24, 2007, and his initial sentencing on June 14, 2007.

By statute a defendant is entitled to “credit for all of the time she or he spent in the county jail before sentence.” § 921.161(1), Fla. Stat. (2006). Unless it would result in a sentence in excess of the statutory maximum, see Adams v. State, 901 So. 2d 275, 277 (Fla. 5th DCA 2005) (”A defendant cannot by a plea agreement accept a sentence that exceeds the statutory maximum.”); Collins v. State, 697 So. 2d 1305, 1307-08 (Fla. 4th DCA 1997) (”Even with a defendant’s assent, the court is without jurisdiction to impose a sentence in excess of the statutory maximum.”), however, credit for time served may be waived as part of a plea agreement. See Prangler v. State, 470 So. 2d 105, 106 (Fla. 2d DCA 1985); Epler v. Judges of the Thirteenth Judicial Circuit Hillsborough County, 308 So. 2d 134, 135 (Fla. 2d DCA 1975). But, for any such waiver to be effective, “the court records must establish the defendant’s clear intent to waive a portion of his or her accrued jail time.” Reed v. State, 810 So. 2d 1025, 1027 (Fla. 2d DCA 2002).

Under our cases, “the record must demonstrate a clear and knowing waiver of jail credit in order to refute a later claim for additional credit.” Cary v. State, 997 So. 2d 423, 424 (Fla. 1st DCA 2008) (citation omitted). In Cary, the trial court denied a claim for additional jail credit because defense counsel had stipulated at

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sentencing that 178 days was the correct amount of jail credit, but the Cary court reversed the denial, holding that the record did not establish that Cary had clearly and knowingly waived his entitlement to additional credit. See Murphy v. State, 930 So. 2d 794, 796 (Fla. 1st DCA 2006) (holding the record must establish a “clear and knowing waiver of entitlement to additional jail credit”).

We have consistently—and recently—held that a defendant’s stipulation even to a specific number of days’ jail credit does not preclude the award of additional credit, in the absence of evidence that the defendant knew of his entitlement to additional credit and voluntarily relinquished the right. See Velasquez v. State, 11 So. 3d 979, 980 (Fla. 1st DCA 2009) (concluding that the plea agreement, which called for Velasquez to receive 100 days of credit, was insufficient to demonstrate that he “was aware of an entitlement to additional credit and voluntarily relinquished that right as part of his plea”); Giggetts v. State, 5 So. 3d 756, 757 (Fla. 1st DCA 2009) (reversing and remanding for further consideration because—although the “trial court attached a copy of the plea agreement and a copy of the plea transcript, both of which indicated the appellant stipulated that he would receive 698 days of credit”—”the plea agreement and plea transcript do not establish that, as part of his plea, he knowingly waived any additional credit which he may have been due. A waiver of jail credit cannot be shown merely by a defendant’s stipulation to a certain amount of credit in the

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absence of evidence that the defendant knew of his entitlement to additional credit and voluntarily relinquished that right.”). See also Davis v. State, 968 So. 2d 1051, 1052 (Fla. 5th DCA 2007) (concluding that written plea agreement that stated “[c]redit for time served as of 7/31/2006 is 1,531 days” was not conclusive evidence that defendant knowingly and voluntarily waived entitlement to any additional credit he was owed). The record does not support the majority opinion’s reading of the plea agreement as an intentional relinquishment—a knowing “disgorgement”—of credit for jail time already awarded.

We have said that, in the absence of a record demonstrating waiver, a sentence which fails to award credit for all jail time the defendant has served is illegal:

Defendants may waive entitlement to previous jail or prison credit. See Griffin v. State, 838 So. 2d 1218, 1220 (Fla. 3d DCA 2003); State v. Richardson, 766 So. 2d 1111, 1112 (Fla. 3d DCA 2000). However, in the absence of such a waiver, the failure to award credit results in an illegal sentence. See Beshara v. State, 736 So. 2d 30, 31 (Fla. 4th DCA 1999). Such a waiver will not be presumed.

Haines v. State, 851 So. 2d 831, 832 (Fla. 1st DCA 2003). Because the record demonstrates no waiver here, the failure to award credit for all the time appellant has spent in jail resulted in an illegal sentence.

The majority opinion’s reliance on Johnson v. State, 974 So. 2d 1152 (Fla. 3d DCA 2008), and Joyner v. State, 988 So. 2d 670 (Fla. 3d DCA 2008), is

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misplaced, to the extent these decisions conflict with our own decisions.² See Velasquez, 11 So. 3d at 980; Giggetts, 5 So. 3d at 757. Since deciding Joyner and Johnson, moreover, the Third District has stated:

Absent: (1) clear record evidence of an express waiver of entitlement to credit time served by a defendant in his plea colloquy, see, e.g., Troutman v. State, 985 So. 2d 1167 (Fla. 3d DCA 2008); Hines v. State, 906 So. 2d 1137 (Fla. 3d DCA 2005); (2) clear record evidence revealing a defendant understood he was waiving the credit time served in question as part of his new sentence, see, e.g., Joyner v. State, 988 So. 2d 670 (Fla. 3d DCA 2008); or (3) clear record evidence revealing that

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applying the credits to which a defendant now claims entitlement would lead to an absurd result clearly not within the contemplation of the parties at the time of sentencing, see, e.g., Rivera v. State, 954 So. 2d 1216 (Fla. 3d DCA 2007); Fulcher v. State, 875 So. 2d 647 (Fla. 3d DCA 2004) (Cope, J., concurring), a defendant is entitled to credit for the time he served on the original split sentence. See Isaac v. State, 992 So. 2d 304 (Fla. 3d DCA 2008); Brownlee v. State, 899 So. 2d 341 (Fla. 3d DCA 2005); Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000).

Reddix v. State, 15 So. 3d 614, 616-17 (Fla. 3d DCA 2009) (footnote omitted). To like effect, the Second District has explained that “the court records must establish the defendant’s clear intent to waive a portion of his or her accrued jail time before we could affirm a defendant’s stipulation to credit for less jail time than was actually served. . . . [A] defendant should not lose credit for jail time actually served due to a mistake by the defendant, defense counsel, or the State.” Reed, 810 So. 2d at 1027.

Nothing in the present record demonstrates that the appellant meant to waive any credit for time he had served in jail when he entered into the plea agreement. The trial court’s summary denial of appellant’s post-judgment motion should be reversed, and the matter should be remanded for further proceedings.

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Notes:

  [?] From 11-29, 2006 to 2-15, 2007

  [ ] ______ days credit for time served

  [ ] all credit for time served

  [ ] no credit for time served

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