Florida Criminal Law Opinions

STATE OF FLORIDA, Appellant,
v.
DAVID LEE BARNES, Appellee.

Case No. 1D08-5150.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

An appeal from the Circuit Court for Bay County. Michael C. Overstreet, Judge.

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

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee

LEWIS, J.

The State appeals the trial court’s order granting David Lee Barnes’ motion for post-conviction relief and awarding a new trial. The State argues that the trial

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court erred in concluding that Barnes’ trial counsel rendered ineffective assistance by failing to request a jury instruction on the justifiable use of non-deadly force. For the reasons expressed below, we agree and reverse.

Barnes was charged by amended information with the second-degree murder of Michael Speights (“the victim”). The information alleged that Barnes unlawfully killed the victim by stabbing him with a knife without a premeditated design. At trial, Barnes’ trial counsel argued in his opening statement that Barnes held out the knife only to “ward off” the victim after the victim lunged at him and, as a result, the victim was accidentally wounded. Trial counsel asserted that because Barnes armed himself in self-defense, Barnes’ actions amounted to “lawful homicide, either excusable homicide or justifiable use of deadly force.”

Charles Smith, an eyewitness to the altercation preceding the stabbing, testified that he saw Barnes and the victim exit his neighbor’s home, wrestle, fall over a railing, and land near the victim’s truck door. According to the Smith, after the victim opened his truck door and walked to the front of the vehicle, Barnes followed the victim and pulled out a knife. The victim backed away and circled around the vehicle. Barnes followed. When the victim stopped moving, Barnes approached the victim. Both men remained next to the vehicle for a few minutes. Later, Smith observed the victim fall to the ground, but did not see Barnes stab the victim.

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Investigator Mark Bailey testified that he interviewed Barnes at the Gulf County Sheriff’s Office after Barnes was apprehended. The interview, which was taped, was played for the jury. In the interview, Barnes repeatedly stated that he acted in self-defense. He explained that the victim chased him, pinned him to the ground, and was carrying two knives. Barnes also stated it was possible that he “cut [the victim] with his own knife” but could not remember because “everything was . . . a blur.” After the tape ended, Bailey testified that Barnes never explained the basis of his self-defense claim.

In his defense, Barnes took the stand and testified that the victim was the aggressor and began the fight by throwing Barnes down the stairs of a mutual friend’s home. After he reentered the home and later decided to leave, Barnes grabbed a knife to use as “a deterrent” because he was afraid the victim would try to fight him again. When he left the house to walk to his car, Barnes heard the victim’s fast-approaching footsteps. As he turned, Barnes held out the knife with an outstretched arm and saw the victim with his hand raised in a striking position. Barnes maintained that he did not realize that as he turned, the knife penetrated the victim, accidentally impaling him.

In his closing argument, trial counsel argued that the evidence presented, and credible testimony confirmed, that Barnes’ use of deadly force in self-defense was reasonable because he was in imminent fear of harm.

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At the charge conference, trial counsel requested an instruction on the justifiable use of deadly force, but he did not request an instruction on the justifiable use of non-deadly force. The trial court granted the request for the instruction. Trial counsel did not object to the instructions as read. The jury ultimately found Barnes guilty of the lesser-included offense of manslaughter. Barnes was convicted and sentenced to ten years in prison and five years of probation with credit for 105 days’ time served. We per curiam affirmed the conviction and sentence on direct appeal. Barnes v. State, 935 So. 2d 501 (Table) (Fla. 1st DCA 2006).

Barnes filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing in part that trial counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force. Barnes alleged that the non-deadly force instruction supported his theory that the victim accidentally impaled himself. The trial court denied the motion and Barnes’ subsequent motion for rehearing. Barnes appealed. Because the trial court’s order denying relief together with the attachments did not conclusively refute Barnes’ allegations, we reversed the trial court’s denial with respect to the ineffective assistance claim and remanded with instructions to attach portions of the record that conclusively refuted Barnes’ claims or to conduct an evidentiary hearing. Barnes v. State, 983 So. 2d 47, 47-48 (Fla. 1st DCA 2008). On remand, the trial

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court appointed counsel for Barnes and conducted an evidentiary hearing.

At the evidentiary hearing, trial counsel testified that he believed that Barnes’ version of the events, particularly Barnes’ statements to police, constrained him to advancing a theory of justifiable homicide, which would require a deadly force instruction, rather than an accidental impalement theory, which would require a non-deadly force instruction. In support of his decision, trial counsel drew upon his jury trial experience, explaining that juries are often skeptical of theories of accidental homicide. Further, he noted that when he used an accidental homicide theory in another trial, the argument was unsuccessful. Trial counsel also compared Barnes’ case to an accidental homicide case in which he requested a non-deadly force instruction. In that case, trial counsel argued that the defendant “was justified in pointing a gun at the victim and then the victim grabbed the gun and the gun went off accidentally.” In distinguishing the instant case, trial counsel pointed to Barnes’ self-defense claims during the police interview. He believed that those statements precluded him from arguing accidental homicide and, as a result, did not warrant requesting a non-deadly force instruction. Ultimately, trial counsel testified that his decision to request only the deadly force instruction was successful “to some effect” because Barnes was convicted of manslaughter, not second-degree murder.

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After the hearing, the trial court issued an order granting Barnes’ motion for post-conviction relief and ordered a new trial. The trial court found that evidence was presented during trial that supported two defensive theories of the case: (1) the defendant stabbed the victim in self-defense; and (2) accidental impalement. The trial court concluded that, even though the only evidence supporting the impalement theory was Barnes’ testimony, “a defendant is entitled to a jury instruction on his theory of the case if there is any evidence to support it.” Accordingly, the trial court found that trial counsel rendered ineffective assistance because “any strategy behind failing to request the instruction was not reasonable under the circumstances.” This appeal followed.

The State argues that the trial court erred in concluding that trial counsel rendered ineffective assistance by failing to request a jury instruction on the justifiable use of non-deadly force because this decision constituted trial strategy. Further, the State asserts that Barnes failed to demonstrate that trial counsel’s failure to request the instruction was prejudicial to his defense. Barnes argues that the trial court correctly determined that trial counsel rendered ineffective assistance. He argues that the testimony and evidence presented at trial support the trial court’s determination that he was also entitled to the non-deadly force instruction. Additionally, Barnes asserts that he demonstrated that trial counsel’s failure to request the additional instruction was prejudicial to his defense. We

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agree with the State that trial counsel’s strategic decision not to request the instruction was not deficient.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the Florida Supreme Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be met. Floyd v. State, 18 So. 3d 432, 443 (Fla. 2009). First, the defendant must establish that counsel’s performance was deficient. Id. at 443. Second, the defendant must establish that counsel’s deficient performance was prejudicial to him or her. Id. (citations omitted). When a defendant fails to establish one prong, it is unnecessary to consider the remaining prong. Stewart v. State, 801 So. 2d 59, 65 (Fla. 2001).

To establish deficiency under Strickland, the defendant must show that counsel’s performance was unreasonable under “prevailing professional norms.” 466 U.S. at 688. To establish prejudice, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Both prongs of the Strickland test involve mixed questions of law and fact. Floyd, 18 So. 3d at 443; Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999). As a result, a mixed standard of review is required: deference to the trial court’s factual findings

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supported by competent, substantial evidence and de novo review of legal conclusions. Floyd, 18 So. 2d at 443; Stephens, 748 So. 2d at 1033.

There is a strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. To fairly assess attorney performance, every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of the challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Id. at 689; Mansfield v. State, 911 So. 2d 1160, 1174 (Fla. 2005) (counsel is not ineffective for strategic decisions that, in hindsight, did not work to the defendant’s advantage). The defendant bears the burden of proving a claim of ineffective assistance at an evidentiary hearing on a Rule 3.850 motion. Williams v. State, 974 So. 2d 405, 407 (Fla. 2d DCA 2007) (citation omitted). The defendant must “overcome the presumption that . . . the challenged action `might be considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)); Gray v. State, 972 So. 2d 1066, 1066 (Fla. 1st DCA 2008) (applying standard to ineffective assistance claims based on trial counsel’s failure to request a jury instruction). As a result, judicial scrutiny of trial counsel’s performance is highly deferential. Strickland, 466 U.S. at 689; Floyd, 18 So. 3d at 443. An attorney’s strategic decision does not “constitute ineffective assistance if alternate courses of action have been

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considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Chavez v. State, 12 So. 3d 199, 207 (Fla. 2009).

We conclude that Barnes failed to meet the first prong outlined in Strickland. Trial counsel was not deficient when he made the strategic decision not to request a jury instruction on the justifiable use of non-deadly force. Trial counsel’s testimony at the evidentiary hearing demonstrates that he considered requesting a non-deadly force instruction but ultimately discarded this option for several reasons. He pointed to Barnes’ statements during the police interview and to credible conflicting testimony and evidence presented at trial in support of his decision not to request the instruction. Additionally, trial counsel testified that, in his experience, accidental homicide theories are not often successful in jury trials. He also compared the instant case to a case in which he requested a non-deadly force instruction. In distinguishing the instant case, trial counsel explained that because he opted not to pursue the accidental impalement theory, he believed the non-deadly force instruction did not apply. Trial counsel’s strategic decision was reasonable under norms of professional conduct. Accordingly, trial counsel’s failure to request the jury instruction did not render his assistance deficient.

Because Barnes failed to establish the deficiency prong of Strickland, we need not consider the prejudice prong. Accordingly, we conclude that the trial court erred in finding that trial counsel rendered ineffective assistance by failing to

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request the additional jury instruction and reverse the trial court’s grant of postconviction relief.

REVERSED.

KAHN and WETHERELL, JJ., CONCUR.

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RONALD L. WILLIAMS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-6125.

District Court of Appeal of Florida, First District.

Opinion filed December 31, 2009.

An appeal from the Circuit Court for Columbia County. Paul S. Bryan, Judge.

Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

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

WETHERELL, J.

Appellant seeks review of the trial court’s denial of his rule 3.850 motion, which raised 20 claims of ineffective assistance of counsel. The trial court summarily denied nine of the claims, and denied the remaining 11 claims after an

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evidentiary hearing. On appeal, Appellant only challenges the trial court’s rulings on four of the summarily denied claims (1, 2, 3, and 18) and five of the claims denied after an evidentiary hearing (6, 9, 10, 14, and 20). We affirm the trial court’s denial of claims 6, 9, 10, 14, and 20, without discussion, and for the reasons that follow, we also affirm the trial court’s denial of the other claims.

The state’s answer brief did not respond to the argument in Appellant’s initial brief concerning the summarily denied claims. In response to our order to show cause pursuant to Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986),¹ the state conceded error as to the trial court’s failure to attach portions of the record refuting claims 1, 2, and 3, but the state argued that the summary denial of claim

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18 should be affirmed because the Spera² issue raised by Appellant with respect to that claim was not properly preserved.

We decline to accept the state’s concession of error with respect to claims 1, 2, and 3, because we conclude that claim 2 is legally insufficient on its face and claims 1 and 3 are refuted by the record attached to the final order. With respect to claim 18, we agree with the state that Spera does not require reversal under the circumstances of this case.

In claim 18, Appellant alleges that his trial counsel was ineffective for failing to call a particular witness. The trial court found the claim to be facially insufficient because it “does not provide, specifically, what the witness would have testified, and how this testimony would have changed the outcome of the trial.” Appellant does not argue on appeal that the claim was facially sufficient (and we agree with the trial court that it was not, see Nelson v. State, 875 So. 2d 579, 582-83 (Fla. 2004)); rather, Appellant argues that under Spera, he should have been given an opportunity to amend the claim.

In Spera, the supreme court explained that “the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend [a facially deficient post-conviction] motion” and the court held that “the proper procedure is to strike the motion with leave to amend within a reasonable period.”

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971 So. 2d at 761. Here, the trial court did not affirmatively provide Appellant leave to amend the claim, but under the circumstances of this case, we conclude that the trial court’s failure to do so was not an abuse of discretion.

Appellant filed his rule 3.850 motion pro se in July 2005. The trial court’s order summarily denying some of the claims in the motion, including claim 18, was issued in September 2005. The state reported to the trial court in October 2005 that an evidentiary hearing would be required on the remaining claims, and Appellant thereafter retained counsel to represent him at the hearing. The hearing was originally scheduled for November 29, 2005, but it was continued numerous times at the request of the parties.

In March 2007, Appellant, through counsel, filed a motion to amend and supplement the original rule 3.850 motion. The motion did not mention Spera (as the decision had not yet been issued) or claim 18 specifically, but it did seek to “enlarge[] issues already pled” and to “organize the claims and delineate the claims more clearly.” The trial court asked Appellant’s counsel about the motion to amend at the outset of the evidentiary hearing on April 12, 2007. Appellant’s counsel did not seek a ruling on the motion and essentially acknowledged that the motion had been abandoned by stating “[w]e never submitted any memorandum or supplement so that the motion was never set for hearing, was never acted upon after the filing of it.” The evidentiary hearing was not completed until February 4,

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2008, and Appellant’s counsel did not renew the motion to amend or otherwise seek leave to amend claim 18 (or any other aspect of the original rule 3.850 motion) while this matter was pending before the trial court.

In Watson v. State, 975 So. 2d 572 (Fla. 1st DCA 2008), we held that a defendant who fails to address the applicability of Spera in his appellate brief waives the issue. Likewise, in this case, we conclude that a defendant who files, but then abandons, a motion to amend his post-conviction motion to more clearly delineate the claims raised therein has waived any claim he may have under Spera. We need not consider in this case, and therefore leave for another day the issue of whether the defendant is required to ask the trial court for leave to amend his post-conviction motion in order to preserve the Spera issue for review. Cf. Rodriguez v. State, 993 So. 2d 152, 154 (Fla. 1st DCA 2008) (Wolf, J., concurring in part and dissenting in part); Watson, 975 So. 2d at 574-75 (Wolf, J., concurring).

Our holding in this case is consistent with our decision in Nelson v. State, 977 So. 2d 710 (Fla. 1st DCA 2008), which included a detailed discussion of Spera. In that case, we stated that Spera does not require the trial court to provide more than one opportunity to amend an insufficient claim, id. at 711, and we reversed the trial court’s summary denial of the appellant’s ineffective assistance of counsel claim because “it is unclear whether the trial court allowed Appellant leave to amend [the] insufficient claim.” Id. at 712. Here, the record reflects that

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Appellant had the opportunity to amend his post-conviction motion, which he abandoned. Under these circumstances, Appellant is not entitled to another opportunity to amend claim 18 under Spera.

AFFIRMED.

HAWKES, C.J., and WOLF, J., CONCUR.

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Notes:

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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.

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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.

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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.

Page 4

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.

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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.

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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.

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KIRENIA FUENTES, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3770

District Court of Appeal of Florida, Fourth District

December 30, 2009

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michael L. Gates, Judge, L.T. Case No. 07-12743 CF10A.

Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.

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

HAZOURI, J.

Kirenia Fuentes pleaded no contest to the charges of possession of cannabis over twenty grams and possession of drug paraphernalia. In the plea, Fuentes reserved her right to appeal her motion to suppress, which was denied by the trial court and dispositive in this matter. Fuentes, as argued in her motion to suppress, contends that the initial investigatory stop, which led to the discovery of the cannabis and drug paraphernalia, was not based on a reasonable suspicion of criminal activity. We reverse the trial court’s denial of the motion to suppress, as the state failed to prove there was the requisite reasonable suspicion needed to make the investigatory stop.

Officer Michelle Keirnan of the City of Plantation Police Department in Broward County, Florida, received a call from police dispatch. The call was in regards to “an anonymous complaint that a white female and white male were punching each other inside an [sic] [U]-haul truck.” At the time of the call, Officer Keirnan was two blocks from the location where the alleged incident was occurring. Immediately after receiving the call, Officer Keirnan proceeded to that area. As known by Officer Keirnan, there is also a U-haul rental facility approximately a half-mile from the area in question.

As Officer Keirnan approached the area where the alleged incident occurred, she stopped at an intersection. She saw a U-haul truck on the opposite side of the intersection moving in the opposite direction. Inside the truck were a female driver and male passenger. She turned her patrol car around and began driving behind the U-haul truck. She then

Page 2

turned on her patrol car’s flashing lights and pulled over the truck. Before she pulled over the truck, Officer Keirnan did not notice any physical altercation going on between the passengers, nor did she observe any erratic driving, speeding, or swerving.

Officer Keirnan exited her patrol car. Due to heavy traffic, she walked up to the passenger’s side of the truck. At that point, Officer Keirnan “knew in [her] mind [that] whoever was in the passenger side [she] was going to take out of the car to talk to.” She asked the male passenger to step out of the truck and tell her what was going on. Because this was a possible domestic violence situation, Officer Keirnan wanted to separate the couple and talk to them individually. The female driver, who was Fuentes, remained in the car.

Approximately two minutes later, Officer Ervins G. Hyppolite arrived. Officer Keirnan asked Officer Hyppolite to talk to Fuentes. As Officer Hyppolite walked over to Fuentes, who was still sitting in the truck, Officer Keirnan and the male passenger discussed the alleged domestic violence. The male passenger told Officer Keirnan that he and Fuentes were having a verbal, not physical, altercation. There was no evidence of a physical altercation on the male passenger’s person.

Officer Hyppolite approached the driver’s side of the truck. He asked Fuentes whether there was a physical altercation between her and the male passenger. She said no, and that she was having a verbal altercation with the male passenger. Officer Hyppolite then asked Fuentes to exit the truck and, due to traffic, relocate to its back. As she exited, a clear baggy with a green leafy substance inadvertently fell from her lap. Officer Hyppolite suspected that it was marijuana. As Fuentes started walking toward the back of the truck, Officer Hyppolite seized the baggy.

Upon arriving at the back of the truck, Officer Hyppolite again asked Fuentes if there was a physical altercation. She said no. Officer Hyppolite found no evidence of a physical altercation on Fuentes’s person. Officer Hyppolite then asked Fuentes who the truck belonged to. She said her and the male passenger. Officer Hyppolite obtained Fuentes’s consent to search the truck. Fuentes also signed a consent to search waiver form. Officer Hyppolite subsequently arrested Fuentes, as he believed the substance in the clear baggy was marijuana.

Officer Hyppolite then searched the truck. Underneath the driver’s seat he found another clear bag filled with suspected marijuana. He also found a gallon bag in the back of the vehicle filled halfway with

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suspected marijuana, as well as two heat lamps commonly used to cultivate marijuana and two brown bags full of small Ziploc bags (the small Ziploc bags were empty). He subsequently field tested the substances found in the two clear bags and the gallon bag. The test was positive for marijuana. The total amount of marijuana found was 175.8 grams.

Fuentes contends the trial court erred by not suppressing the evidence obtained. She argues that the evidence was impermissibly gathered because it was the fruit of an investigatory stop conducted without a reasonable suspicion of criminal activity. We agree.

“[An appellate court] is required to accept the trial court’s determination of disputed issues of fact in a motion to suppress, as the trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence. Although [appellate courts] are required to accept the trial court’s determination of the historical facts leading to the search, a defendant is entitled to a de novo review of whether the application of the law to the historical facts establishes an adequate basis for the trial court’s finding of reasonable suspicion or probable cause.”

Manning v. State, 957 So. 2d 111, 113-14 (Fla. 4th DCA 2007) (alteration in original) (quoting Lee v. State, 868 So. 2d 577, 579 (Fla. 4th DCA 2004) (citing Curtis v. State, 748 So.2d 370 (Fla. 4th DCA 2000))).

Furthermore, “the determinations of a trial court in considering a motion to suppress come to an appellate court clothed with a presumption of correctness,” and “a reviewing court will interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to such ruling.” State v. Pye, 551 So. 2d 1237, 1239 (Fla. 1st DCA 1989). Also, “`[o]nce a defendant challenges his arrest and search without a warrant, the burden of proving its validity as a predicate for lawful admissions seized in evidence is upon the state.’” Cook v. State, 873 So. 2d 624, 624-25 (Fla. 2d DCA 2004) (quoting King v. State, 371 So. 2d 120, 122 (Fla. 1st DCA 1978)).

In regards to the requirements for an investigatory stop, law enforcement agents may “stop and detain a person for investigation,” so long as the law enforcement agent has “a reasonable suspicion” that a “person has committed, is committing, or is about to commit a crime. Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based

Page 4

solely on facts known to the officer before the stop.” Slydell v. State, 792 So. 2d 667, 671 (Fla. 4th DCA 2001) (citations omitted). “In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). More precisely, a “founded suspicion is one which has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge and experience.” State v. Davis, 849 So. 2d 398, 400 (Fla. 4th DCA 2003).

The police investigation in this case began with a tip given by an anonymous tipster to police dispatch. When an anonymous tip is involved in instigating an investigatory stop, a court’s consideration of the “totality of the circumstances includes [the] consideration of the nature of the informant.” State v. Evans, 620 So. 2d 802, 803 (Fla. 2d DCA 1993).

Because an anonymous tipster’s “basis of knowledge and veracity are typically unknown,” tips they give “justify a stop only once they are `sufficiently corroborated’ by police.” State v. Evans, 692 So. 2d 216, 218 (Fla. 4th DCA 1997) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).

This requirement of corroboration was exemplified in Baptiste v. State, 995 So. 2d 285 (Fla. 2008). In that case, a police officer received a radio dispatch stating that an anonymous tipster saw a black male, who was wearing a white T-shirt and blue-jean shorts, waiving a firearm in front of a grocery store. Id. at 288. The officer proceeded to the grocery store, where another police officer had already stopped a black male who was wearing a white T-shirt and blue-jean shorts. Id. The black male was George Baptiste. Based on the informant’s tip, the officers ordered Baptiste to the ground and searched his person, finding a firearm. Id. The Florida Supreme Court held that, given the totality of the circumstances, there was not a reasonable suspicion of activity justifying this investigatory stop. Id. at 296. This was because: (1) the officers “received only an anonymous tip stating that a black male wearing a white T-shirt and blue-jean shorts in a described location was in possession of a gun”; (2) the tipster “did not provide predictive-conduct information indicating any `inside’ knowledge about Baptiste, nor did he offer any predictive information that would have corroborated his claim that Baptiste was engaged in illegal conduct”; and (3) “when the officer[s] arrived on scene, [they] w[ere] only able to corroborate innocent details . .. . [and] Baptiste was not engaged in any unlawful acts, unusual

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conduct, or suspicious behavior; he was merely walking down the street.” Id.

Furthermore, in Sapp v. State, 763 So. 2d 1257, 1258 (Fla. 4th DCA 2000), this court held that an investigatory traffic stop was constitutionally invalid because it was based solely on a “be on the lookout” (“BOLO”) that “was not sufficiently specific to create a founded suspicion that the occupants of the vehicle . . . had committed or were about to commit a crime.” Id. The stop was impermissible because the BOLO was “too general to create any legal justification to stop appellant’s car,” as it “provided no information as to the speed, direction, make or model of the car,” and because the officers did not observe the car engaging in “any suspicious conduct or activity consistent with guilt.” Id. at 1259.

Likewise, in L.T.S. v. State, 391 So. 2d 695, 695 (Fla. 1st DCA 1980), the First District held that a stop of an automobile was “improper because the police did not have a well-founded or reasonable suspicion” that a crime was being committed. That stop was instituted pursuant to a BOLO advising the police that a robbery was just perpetrated at a liquor store by two white males with curly hair. Id. Within approximately one to two minutes of the BOLO, a police officer, while traveling in his patrol car, observed an automobile traveling on the road near the liquor store. Id. The automobile was traveling away from the store and contained three to four males, two or three of whom had “fairly bushy” hair. Id. The First District held that these circumstances did not create a well-founded suspicion of criminal activity because “[t]he description of the suspects given over the BOLO was lacking in specificity,” and because “there was no indication” that the road the suspects were traveling on was untraveled at the time of the stop or “was one of the few routes available for flight from the scene of the robbery.” Id. at 696.

Similarly, in Kalnas v. State, 862 So. 2d 860, 862 (Fla. 4th DCA 2003), this court held that an investigatory stop of a person for the purpose of investigating a burglary was invalid. Although an anonymous tipster in that case gave detailed information of the crime being committed and provided a detailed description of the suspect, this court held that the stop was invalid because “when the police officer arrived on the scene, he was only able to verify the innocent details of identification” and witnessed no other corroborating illegal or suspicious activity. Id. The Fifth District rendered an analogous holding in Nettles v. State, 957 So. 2d 689, 689-90 (Fla. 5th DCA 2007), stating that an investigatory stop based on an accurate description of a suspect given by an

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anonymous tipster alone, and without a corroborating indicator that the suspect was engaged in criminal activity, does not form a well-founded suspicion of criminal activity.

In the instant case, the trial court erred in denying Fuentes’s motion to suppress, as Officer Keirnan did not have a reasonable suspicion of criminal activity when she conducted the investigatory stop. The facts known to Officer Keirnan at the time of the stop were not indicative of criminal activity. Specifically, Officer Keirnan observed a female driver and male passenger in a U-haul truck—as described by the anonymous tipster—but did not corroborate this identification with any criminal behavior, i.e., she did not see the couple physically attacking each other or otherwise engaging in illegal or suspicious activity. Also, and as known by Officer Keirnan, the place where the truck was pulled over was located near a U-haul rental facility, further negating the premise that these two individuals were the subject of the anonymous tipster’s call, as the couple may have been two other people who rented a U-haul truck at the same time the anonymous tipster informed the police of the possible domestic violence.

We, therefore, reverse the denial of the motion to suppress. Because the motion to suppress is dispositive, we direct the trial court to vacate the conviction and discharge Fuentes.

Reversed and Remanded with Directions.

DAMOORGIAN and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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E.I., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-4971.

District Court of Appeal of Florida, Second District.

Opinion filed December 30, 2009.

Appeal from the Circuit Court for Hillsborough County, Christopher C. Sabella, Judge.

James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

E.I. appeals his adjudication of delinquency and resulting sentence for one count of attempted tampering with physical evidence, contending that his statements to police should have been suppressed and that his motion for judgment of dismissal

Page 2

should have been granted because the State did not present a prima facie case of attempted tampering. We agree that the State did not present a prima facie case of attempted tampering. Therefore, we reverse E.I.’s adjudication and sentence and remand for discharge.

The evidence presented at E.I.’s adjudicatory hearing established that E.I. was a passenger in a pickup truck that was being driven in Plant City after midnight on June 13, 2008. Plant City police officer Ernest Ward had just completed a traffic stop on another vehicle when he noticed the pickup truck drive by and saw that its tag light was not working. Officer Ward decided to stop the pickup truck for this traffic infraction.

Officer Ward pulled directly behind the pickup truck and activated his lights and siren. As the truck pulled into a gas station and started to slow down, Officer Ward saw E.I. throw an item out of the passenger window. After the truck stopped, Officer Ward located the item that had been thrown because it was clearly visible on the hard surface of the gas station parking lot. The recovered item was a package containing three small baggies that each contained a substance that field-tested positive as methamphetamine.

In a post-Miranda¹ statement, E.I. told the police that when Officer Ward pulled in behind the pickup truck, the driver of the truck removed the package of methamphetamine from his pocket, handed it to E.I., and told E.I. he didn’t want the police to find the package. At the driver’s direction, E.I. threw the package out the truck window. E.I. made no statements about his intent in throwing the package.

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E.I. was not charged with possession of the methamphetamine; instead, he was charged with attempted tampering with evidence pursuant to section 918.13, Florida Statutes (2008), and section 777.04(1), Florida Statutes (2008). Section 918.13 provides, in pertinent part:

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:

(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation[.]

(Emphasis added.) Section 777.04(1) provides that a person attempts to commit a crime when the person “does any act toward the commission of such offense, but fails in the perpetration.”

In interpreting the tampering statute, this court has held that the simple act of throwing a bag of cocaine out of a car window is generally not sufficient to constitute the offense of tampering with evidence. See Boice v. State, 560 So. 2d 1383, 1384 (Fla. 2d DCA 1990). There, this court noted that the act of tossing away the baggie in plain view of the officers did not conceal the cocaine. Id. And while Boice had removed the cocaine from his hand, he had not removed it from the immediate area of his arrest. Id. Thus, this court stated that it did “not believe that the legislature intended the simple act of abandoning a bag of crack cocaine at the scene of an arrest, in the clear sight of a law enforcement officer, to constitute the commission of this additional third-degree felony.” Id. at 1384-85.

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Under the reasoning of Boice, E.I.’s act of tossing the driver’s package of methamphetamine out the window—as if engaged in an illicit game of “hot potato”—in the clear sight of Officer Ward would not constitute attempted tampering. While E.I. was clearly trying to disassociate himself from the package, there is nothing about this act under the circumstances presented here that shows that E.I. was trying to alter, destroy, or conceal the package. Further, while E.I. did remove the package from his hand, he did not remove it from the scene of the traffic stop. Thus, this act was factually and legally nothing more than abandonment, and the trial court should have granted E.I.’s motion for judgment of dismissal.

As the State correctly points out on appeal, the supreme court criticized this court’s Boice opinion in State v. Jennings, 666 So. 2d 131, 133 (Fla. 1995). However, the supreme court did not overrule Boice. Instead, the court stated that it disagreed with Boice only “to the extent it can be read to mean that tossing evidence away in the presence of a law enforcement officer does not, as a matter of law, constitute a violation of the statute.” Id. Instead, the supreme court held that whether such an act amounts to tampering or attempted tampering will depend on all of the circumstances. Id. However, the court did not discuss what those circumstances might be.

In examining both Jennings and pre- and post-Jennings cases, it appears that the offense of tampering is committed only when the defendant takes some action that is designed to actually alter or destroy the evidence rather than just removing it from his or her person. For example, in Jennings, the defendant put cocaine rocks into his mouth and swallowed them. Id. at 132. The rocks were never recovered. Id. Thus,

Page 5

the evidence was, in fact, destroyed and not available, and this act could constitute tampering with evidence. Id. at 133 (“[S]wallowing an object clearly constitutes altering, destroying, concealing, or removing a `thing’ . . . . “); see also A.D.J. v. State, 813 So. 2d 127 (Fla. 5th DCA 2002) (affirming conviction for tampering based on defendant’s act of swallowing the drugs). Because swallowing an item can constitute tampering, attempting to swallow an item can constitute attempted tampering. See, e.g., Morris v. State, 989 So. 2d 753, 754 (Fla. 2d DCA 2008); A.F. v. State, 850 So. 2d 667 (Fla. 4th DCA 2003).

Similarly, in Hayes v. State, 634 So. 2d 1153, 1154 (Fla. 4th DCA 1994), the defendant dropped a baggie of cocaine into a drainage outlet as he was fleeing from police. The court found that this action was affirmatively intended to destroy or alter the evidence itself and thus could support a conviction for tampering. Id.; see also Anderson v. State, 996 So. 2d 256 (Fla. 1st DCA 2008) (holding that defendant’s act of throwing substance into a urinal could support a conviction for attempted tampering with evidence); McKenzie v. State, 632 So. 2d 276 (Fla. 4th DCA 1994) (noting in passing that flushing drugs down a toilet could constitute tampering with evidence).

In contrast, in Evans v. State, 997 So. 2d 1281 (Fla. 4th DCA 2009), and Obas v. State, 935 So. 2d 38 (Fla. 4th DCA 2006), the defendants threw items onto the ground as officers approached for a stop. In Obas, the Fourth District noted that Jennings had not overruled Boice but had simply held that Boice was wrong “to the extent it held that tossing evidence away cannot constitute tampering as a matter of law.” Obas, 935 So. 2d at 39. The Fourth District noted that each case must be decided on its own facts, and there must be some evidence of a specific intent to alter,

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destroy, or conceal the evidence. Evans, 997 So. 2d at 1284. In the absence of such evidence, the State proves only abandonment, not tampering. Id.

The State relies primarily on State v. Harper, 800 So. 2d 708 (Fla. 5th DCA 2001), arguing that its facts are indistinguishable from those in this case and that its holding mandates affirmance here. In that case, Harper was the driver of a vehicle that was stopped for a traffic infraction. Id. As Harper slowed for the stop, he handed marijuana and a marijuana pipe to his passenger and instructed the passenger to throw both items out the window. Id. After the State charged Harper with tampering, Harper moved to dismiss the charge, arguing that the information did not allege a prima facie case of guilt. Id. The trial court granted the motion to dismiss based largely on Boice, but the Fifth District reversed, noting that Boice was not controlling in light of Jennings.

The State’s reliance on Harper to support an affirmance in this case is misplaced for two reasons. First, Harper involved a motion to dismiss rather than a motion for judgment of dismissal. To the extent that a defendant’s intent is relevant to the issue of whether a specific act constituted tampering, that intent is not properly resolved on a motion to dismiss. See, e.g., State v. Jenkins, 522 So. 2d 890, 890 (Fla. 2d DCA 1988) (holding that intent is not ordinarily determined on a motion to dismiss); State v. Arnal, 941 So. 2d 556, 559 (Fla. 3d DCA 2006) (same); State v. Atkinson, 490 So. 2d 1363 (Fla. 5th DCA 1986) (same). Here, however, E.I. did not raise the issue in a motion to dismiss but rather in a motion for judgment of dismissal at the close of the State’s case. At that point, the issue of whether the State had presented sufficient evidence to establish E.I.’s intent was properly before the trial court.

Page 7

Second, Harper was the driver who gave the instructions to his passenger to dispose of the evidence. Harper’s statements about disposing of the evidence provided some evidence of his intent to destroy or conceal that evidence. In contrast, E.I. in this case was the passenger who was given instructions by the driver. E.I.’s intent cannot be inferred from the statements of the driver. Thus, the decision in Harper does not control the outcome here.

When considered in light of all of these cases, it is clear that E.I.’s adjudication for attempted tampering must be reversed. The most that can fairly be determined from the facts is that E.I. followed the driver’s instructions and attempted to abandon the methamphetamine in plain view of the officers. The State presented no evidence that E.I. intended to alter or destroy the methamphetamine. While the State’s evidence might arguably show that the driver of the pickup truck intended to conceal the methamphetamine, the State presented no evidence that E.I. shared this intent. In the absence of such evidence, the State failed to present a prima facie case of attempted tampering.

When the State does “not present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper.” E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d DCA 2003). Here, because the State did not present a prima facie case of attempted tampering, E.I.’s motion for judgment of dismissal should have been granted. Accordingly, we reverse E.I.’s adjudication for attempted tampering with physical evidence and remand for discharge.

Reversed and remanded for discharge.

FULMER and NORTHCUTT, JJ., Concur.

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

—————

Notes:

—————

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MICHAEL EUGENE AKINS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-161.

District Court of Appeal of Florida, Second District.

Opinion filed December 30, 2009.

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

Michael Eugene Akins, pro se.

ALTENBERND, Judge.

Michael Eugene Akins appeals an order in a postconviction proceeding that denied his motion to correct an illegal sentence. Since his original sentence in 1991, he has filed more than thirty such appeals. Nevertheless, the argument that he raises is supported by Ashley v. State, 850 So. 2d 1265 (Fla. 2003), and Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996), as well as by discussion in this court’s opinion in Barron v. State, 827 So. 2d 1063 (Fla. 2d DCA 2002), and by the outcome in White v. State, 892 So. 2d 541 (Fla. 1st DCA 2005). Although we disagree with at least part of

Page 2

the analysis in Evans, it was approved by the supreme court in Ashley. We are not convinced that we can distinguish these cases. Accordingly, we reverse the order on appeal and hold that Mr. Akins’ sentence is illegal because the trial judge inadvertently failed to announce that the sentence imposed on violation of probation remained a habitual offender sentence. At the conclusion of this opinion, we certify a question to the Florida Supreme Court.

I.

When Mr. Akins was sentenced in 1991 for a sale of cocaine that occurred in 1990, he was designated a habitual felony offender. As a result, the maximum legal sentence he could receive for this second-degree felony was thirty years’ imprisonment. See §§ 775.084(4)(a)(2), 893.13(1)(a)(1), Fla. Stat. (1989). The trial court imposed a true split sentence of thirty years’ imprisonment, suspended after twenty years, with the remainder of the sentence served on probation. No one argues that the sentence imposed in 1991 was incorrect, unlawful, or illegal.

After approximately twelve years in prison, Mr. Akins was released in early 2003 to serve the remainder of his sentence on probation. Thus, he had received gain time or other credits allowing him to be released approximately eight years earlier than the full twenty-year term of imprisonment.

Mr. Akins violated his probation in 2004.¹ He admitted the violation in November 2004. As a result, the trial court had the option of revoking his probation and sentencing him to prison for the remaining term of the true split sentence. The trial

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judge realized that any new sentence would cause a substantial loss of gain time for Mr. Akins. The trial court did not wish to impose a term of imprisonment that could result in Mr. Akins serving another eighteen years in prison. Accordingly, after a lengthy discussion of jail credit and other issues, the trial court imposed a sentence of five years’ imprisonment with no term of probation thereafter.

During this discussion, no one suggested that Mr. Akins did not retain his status as a habitual offender. It is obvious that the judge and both lawyers were working on the assumption that Mr. Akins retained his status as a habitual offender and they were trying to ameliorate the severity of the true split sentence for Mr. Akins’ benefit. Nevertheless, when the trial court finally announced the sentence of five years’ imprisonment, it did not orally announce that the earlier determination that Mr. Akins qualified and would be sentenced as a habitual offender remained the status of his case.

When the sentence on revocation was reduced to writing, it did not indicate that Mr. Akins was serving his sentence as a habitual felony offender. In 2005, Mr. Akins challenged the calculation of jail credit in his new sentence. While adding additional jail credit to benefit Mr. Akins, the court added language explaining that the sentence was imposed as a habitual felony offender sentence. Since that clarification, Mr. Akins has attempted to convince the courts that his “guidelines” sentence imposed upon revocation of probation in 2004 could not lawfully be transformed into a habitual offender sentence in 2005.

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II.

As explained later in this opinion, this court and the trial court have previously assumed that Mr. Akins’ issue was not a double jeopardy issue because he was declared to fall within the status of a habitual offender when his original true split sentence was imposed. In light of the holding in Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996), which was approved by the supreme court in Ashley v State, 850 So. 2d 1265 (Fla. 2003), we conclude that we must treat the modification of the sentence in 2005 as a violation of double jeopardy.

In Evans, the defendant received a forty-year term of imprisonment as a habitual offender in 1993. 675 So. 2d at 1013. That sentence was fully suspended, and he was placed on probation. In other words, he appears to have received a true split sentence with no initial time in prison. When the defendant violated his probation, similar to this case, there was a hesitancy to give the defendant a full forty-year term of imprisonment. Thus, the court expressly vacated the true split sentence and resentenced the defendant to a total of twenty years in prison. Id. During that resentencing, the court did not announce that the sentence was imposed under the defendant’s status as a habitual offender. Id. at 1014. Two days later, the defendant was returned to court, and the court attempted to clarify that the twenty-year sentence was imposed as a habitual offender sentence. Id. On appeal, the Fourth District recognized that the failure to state that the defendant remained a habitual offender was probably a mere oversight, but it nevertheless ruled that it was “unequivocally a violation of double jeopardy.” Id.

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In Ashley, the supreme court considered a case in which there was an inadvertent failure to announce a defendant’s status as a habitual violent felony offender during his initial sentencing. 850 So. 2d 1265. The case did not involve a violation of probation. Nevertheless, the supreme court concluded that the First District’s opinion² conflicted with the Fourth District’s decision in Evans. 850 So. 2d at 1267. The supreme court quashed the First District’s decision in Ashley, relying on the analysis in Evans. Id. at 1267-69.

We have considered whether we can distinguish Evans because the defendant in that case had not already served a term in prison as a habitual offender and had only been on probation. Evans may also have involved a more formalized abandonment of the earlier true split sentence. In light of the supreme court’s decision that Evans conflicted with the First District’s opinion in Ashley, we conclude that we cannot distinguish Evans from this case.

Accordingly, we hold that the sentence entered in 2005 violated double jeopardy and is an illegal sentence. On remand, the trial court must resentence Mr. Akins. Whether the trial court may just reimpose the five-year term of imprisonment without the habitual offender status or must impose a lesser sentence so that the total of the prior prison time actually served and the new sentence does not exceed fifteen years in prison is unclear. It would appear to us, however, that the issue of what legal sentence to impose on remand is sufficiently complex that the trial court would be well advised to conduct a hearing and appoint counsel to assist Mr. Akins.

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III.

But for the decisions in Ashley and Evans, we would think that Mr. Akins’ issue distills down to the question of whether a defendant’s habitual offender status in a specific case, once determined and relied upon for the imposition of an extended split sentence, must be orally redetermined and reannounced at any subsequent sentencing on violation of probation. His status as a habitual offender would not appear to us to be a matter that would require redetermination at a proceeding on a violation of probation.

Under the applicable sentencing law in 1991, “habitual felony offender” was a defined status that permitted the trial court to sentence the defendant to “an extended term of imprisonment.” § 775.084(1)(a). The habitual felony offender status was then, and remains now, a distinct determination by the trial court that takes place after the jury’s verdict and prior to the imposition of sentence. Although the proceeding is often resolved as part of the sentencing hearing, this determination technically occurs “[i]n a separate proceeding,” governed in part by procedures specific to such proceedings. § 775.084(3). Once a defendant is designated to fall within this status, his or her sentence can be essentially doubled in length. See § 775.084(4).

It has long been established that a sentence of imprisonment as a habitual offender can be suspended after a term of years and replaced with a term of probation. In other words, one’s status as a habitual offender does not prohibit the trial court from imposing a split sentence. See McKnight v. State, 616 So. 2d 31 (Fla. 1993); Allen v. State, 599 So. 2d 996 (Fla. 1992) (holding that maximum sentences in habitual felony offender statutes are permissive, affirming split sentence). Mr. Akins is arguing that when a trial court revokes probation in such a case, the revocation also rescinds the

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earlier determination that the defendant is a habitual felony offender for whom an extended sentence is warranted. We find nothing in the relevant statutes that supports this theory.³ Once the trial court has determined that a defendant qualifies as a habitual felony offender and has announced a split sentence pursuant to that determination, we would think that the defendant’s status as a habitual felony offender subject to an extended sentence remained his status without need of additional determinations or announcements at later proceedings. While the defendant might better understand the sentence if the trial court explained that the defendant remained a habitual offender, it is not entirely clear to this court why double jeopardy requires the trial court to repeat this predicate determination for the sentence imposed on violation of probation any more than the judge would have an obligation to repeat the earlier announcement of adjudication on the conviction. In addition to Ashley and Evans, we recognize that the First District, in White v. State, 892 So. 2d 541, 542 (Fla. 1st DCA 2005), held that “[t]o effectuate a habitual felony offender sentence upon revocation of probation, a trial court must orally pronounce habitual felony offender status, even when the appellant was initially sentenced as a habitual felony offender for the substantive offense and the designation has not been set aside.” This court reached a similar outcome in Barron v. State, 827 So. 2d 1063 (Fla. 2d DCA 2002).

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This issue in this case appears most similar to that which arose with a split sentence in Mann v. State, 851 So. 2d 901 (Fla. 3d DCA 2003). In Mann, the defendant was designated a habitual violent felony offender at the original sentencing. Id. at 902. When he violated his probation, the court orally imposed his sentence on violation of probation as a “habitual offender” sentence, omitting the word “violent.” Id. The trial court thereafter entered a written sentence retaining the defendant’s status as a habitual violent felony offender. Id. Thus, in Mann, the issue was not a scrivener’s error, but rather a slip of the tongue by the trial judge. Id. at 903. The Third District held that the defendant’s status was not altered by this omission and that considerations of double jeopardy did not prevent the sentence from being treated as a sentence imposed under the status of habitual violent felony offender. Id. We would follow this case, but we are not convinced that it is consistent with Evans.

It seems to this court that the determination of a status such as habitual felony offender or habitual violent felony offender, in many ways, is not a portion of either the proceedings resulting in an adjudication of guilt or the proceedings resulting in a sentence. Although this status determination often occurs at the hearing scheduled for sentencing, it is a predicate decision based on fact and law that is distinct from either the adjudication or the sentence. For purposes of double jeopardy, once this status has been formally determined and the trial court has announced that it will rely on this status for purposes of imposing a split sentence, we do not entirely understand why the trial court violates double jeopardy when it relies on that determination and announcement without repeating it at a sentencing on revocation of probation.

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The issue in our case is not identical to that in Ashley and our holding appears to conflict with Mann. Given that we would not wish an inadvertent omission at sentencing to be given the sanctity of constitutional protection unless required by binding precedent, we certify the following question of great public importance:

IF A DEFENDANT HAS BEEN DECLARED TO BE A HABITUAL OFFENDER BEFORE THE IMPOSITION OF HIS INITIAL SPLIT SENTENCE, WHEN THE DEFENDANT LATER VIOLATES PROBATION AND HAS HIS PROBATION REVOKED, DOES THE DEFENDANT LOSE HIS STATUS AS A HABITUAL OFFENDER IF THE TRIAL COURT DOES NOT REPEAT THIS STATUS AT THE SENTENCING HEARING ON VIOLATION OF PROBATION?

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

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

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Notes:

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Courtesy of David Edelstein

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