Florida Criminal Law Opinions

JOVAN HOWARD, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2982.

District Court of Appeal of Florida, Fourth District.

December 30, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 06-2580 CF10A.

Howard, Blountstown, pro se.

Bill McCollum, Attorney General, Tallahassee, and Heidi Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, Judge.

Appellant, Jovan Howard, pro se, appeals the trial court’s order adjudicating him guilty of burglary of a dwelling and sentencing him to thirty years imprisonment as an habitual felony offender. Though Howard has raised nine points on appeal, we hold that none warrants reversal by this court and affirm.

Howard was charged by information with burglary of a dwelling on February 13, 2006 for events occurring on August 28, 2003. Howard chose to represent himself at a jury trial. The victim of the burglary testified regarding the events of August 28, 2003. On that date, the victim lived in a home on Oak Tree Drive in Fort Lauderdale with her husband and three children. The victim was the last person to leave on that day, and she recalled that the home was neat and that she had locked the doors as she did regularly. She returned home around one o’clock after receiving a phone call from her son. When the victim arrived, the police were at her home with her son and some of his friends. The master bedroom and another bedroom had been completely messed up — drawers were pulled out from dressers and their contents dumped onto the floor. Jewelry and a coin collection were missing from the home. The victim estimated the value of the coin collection to have been between four and five thousand dollars and the value of the jewelry to have been five thousand dollars. Also, the victim noticed that a sliding glass door had been pried open and damaged and that a curtain next to the door had been stained by blood. The victim had no personal knowledge of the person who broke into her home, had never met Howard, and had never given Howard permission to enter her home.

Deputy Kevin Lanham arrived at the scene to take a swab of the blood stain on the curtain. Lanham took the swab to the lab located in the courthouse. A DNA specialist with the Broward Sheriff’s Office crime lab testified that she

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received the swabs, confirmed the presence of blood, and sent them to a Bode Technology laboratory for further analysis. The specialist later received a DNA profile for the sample from the Bode Technology laboratory and ran a DNA analysis on an oral swab from Howard who was already in state custody. The specialist determined that the blood sample taken from the crime scene and Howard had the same DNA profile.

A DNA analyst from Bode Technology explained that when she is done with the testing, she places the swabs back in the envelope, and seals and signs the envelope. She clarified that in this case, her colleague signed the sealed envelope in her presence. Howard objected on hearsay grounds, and the trial court overruled the objection.

Howard’s wife testified that Howard was home with her on the day of the burglary. The jury found Howard guilty of burglary of a dwelling, and the trial court sentenced him to thirty years imprisonment.

Howard first argues the trial court erred in providing the jury with the original information instead of the amended information. There is no indication in the record that the jury received either an amended or an original information. Furthermore, Howard’s reliance on Wilcox v. State, 248 So. 2d 692 (Fla. 4th DCA 1971), is misplaced. In Wilcox, this court held, “The filing of an amended information which purports to be a complete restatement of an offense has the effect of vitiating the original information as fully as though it had been formally dismissed by order of court.” Id. at 694. Here, the State amended the information for the sole purpose of adding Howard’s alias.

The next two issues raised involve the trial court’s instructions to the jury. First, Howard contends the trial court committed fundamental error in providing the jury with incorrect written instructions regarding the elements of burglary because the instructions stated that the jury must find the defendant entered the dwelling with the intent to commit a burglary. The instructions given below are not materially distinguishable from those which we have previously upheld, and thus, this is not a point of reversible error. Freeman v. State, 787 So. 2d 152, 154 (Fla. 4th DCA 2001) (holding that the erroneous use of the term “burglary” in the beginning of the written jury instructions was not fundamental because any error was cured by the correct use of the term “theft” in the latter portion of the written instructions).

Another jury instruction issue raised is whether the trial court committed fundamental error when it instructed the jury that “[a]n act is committed in the course of committing if it occurs in the attempt to commit the offense or in flight, after the attempt or commission” because no evidence of Howard’s flight was offered at trial. As the State correctly points out, the contested instruction is a standard instruction having to do with the timing of the underlying offense

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and not consciousness of guilt. Accordingly, lack of evidence of flight is irrelevant, and Howard has failed to show that this is a point of reversible error.

The trial court denied Howard’s motion for exculpatory evidence in which he requested that the court compel the State to give Howard the cotton swab used to swab the curtain so that he could engage in independent testing. Howard now argues that the trial court erred in denying this motion and in admitting the cotton swabs into evidence when the State failed to “disclose” the swabs by physically providing them to Howard. Howard relies on cases in which the court has held that suppression by the State of evidence favorable to the defendant violates due process. E.g., Brady v. Maryland, 373 U.S. 83 (1963). Howard does not explain, however, how the swabs were favorable to him or his defense. As the State points out, Howard knew of the swabs well before the trial, and the swabs were available to Howard for inspection at the laboratory. Removing the swabs from the vault and providing them to Howard in jail would have created significant chain of custody issues. Had Howard arranged to have the swabs independently tested by another lab, the swabs could have been removed, but Howard never made such arrangements. On these facts, there was no error.

Howard contends the trial court erred in denying his motion to dismiss. “[A] motion to dismiss should be granted only where the most favorable construction to the State would not establish a prima facie case of guilt. And if there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied.” State v. Terma, 997 So. 2d 1174, 1177 (Fla. 3d DCA 2008) (quoting State v. McQuay, 403 So.2d 566, 567-68 (Fla. 3d DCA 1981)). In order to prove burglary of a dwelling in violation of section 810.02, Florida Statutes (2003), the State had to show that Howard entered a dwelling with the intent to commit an offense therein. The above stated facts, when construed most favorably to the State, establish a prima facie case of burglary against Howard. Accordingly, the trial court did not err in denying the motion to dismiss.

Below, Howard objected on hearsay grounds to the Bode Technology DNA analyst’s testimony that she witnessed her colleague initial the envelope in her presence once it was resealed. Howard now argues the trial court erred when it overruled this objection. As the State correctly points out, this was not hearsay testimony — the analyst testified to an event she personally witnessed.

During voir dire the trial judge referenced television shows like CSI:Miami and asked whether the jury understood that, in real life, DNA evidence is not processed in a day. Because Howard made no objection to the comments below, Howard’s assertion that the comments constituted reversible error may not be raised on appeal. Thomas v. State, 645 So. 2d 185 (Fla. 3d DCA 1994)

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(holding that in order to raise prejudicial comments of trial court on appeal, defendant must object to comments when made and move for a mistrial).

Finally, Howard argues the trial court failed to properly swear in the jury. As the Florida Supreme Court has long held, if the record “imports that the jurors were in fact sworn, without negativing the presumption that they were duly sworn, the entry is sufficient, and in better form than if the prescribed oath were recited word for word.” Garner v. State, 9 So. 835, 844 (Fla. 1891). In the present case, after the jury was chosen, the record reads “(jury sworn)”. Thus, the record does not support Howard’s argument. For the foregoing reasons, we affirm the trial court’s judgment.

Affirmed.

STEVENSON and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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

No. 4D08-1134.

District Court of Appeal of Florida, Fourth District.

December 30, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner and Martin J. Bidwill, Judges; L.T. Case No. 04-13827CFB.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

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

GERBER, Judge.

In this appeal, the defendant argues that the circuit court erred by failing to make the state provide competent evidence of the prior offenses identified on his scoresheet after his violation of probation. The state responds that the defendant cannot raise this challenge after his violation of probation because he did not raise it at his original sentencing. Thus, this appeal presents the question of whether a defendant who fails to challenge the inclusion of prior offenses on his scoresheet at his original sentencing may raise the challenge after his violation of probation. We answer yes, and remand for the state to provide competent evidence of the defendant’s prior offenses.

The defendant pled no contest to battery on a law enforcement officer and resisting an officer with violence. In exchange, the state agreed to recommend probation as a negotiated downward departure from the minimum guidelines sentence of 44.7 months. At sentencing, the state submitted a scoresheet identifying several prior offenses. The defendant accepted the scoresheet. The circuit court then placed the defendant on probation.

The defendant later violated probation. At sentencing, the state provided the court with an updated scoresheet with additional points for the probation violation, resulting in a minimum guidelines sentence of 55.35 months. The updated scoresheet identified the same prior offenses as the original scoresheet. The defendant objected to the updated scoresheet and requested that the state prove the existence of the identified prior offenses.

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The circuit court overruled the objection. The court reasoned that, because the same prior offenses appeared on the defendant’s original scoresheet, which the defendant accepted, the defendant waived the objection. The court correctly noted, however, that the defendant could raise his objection in a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800. The court then sentenced the defendant to prison for five years on the resisting charge and two years on the battery charge, to run concurrently.

After the defendant filed his notice of appeal, he filed a rule 3.800(b)(2) motion to correct sentencing error, effectively staying this appeal. Fla. R. Crim. P. 3.800(b)(2) (2008). The motion alleged that the scoresheet included two offenses in violation of section 921.0021(5), Florida Statutes (2008). That statute, in pertinent part, provides that “[c]onvictions for offenses committed by the offender more than 10 years before the primary offense are not included in the offender’s prior record if the offender has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later, to the date of the primary offense.” § 921.0021(5), Fla. Stat. (2008). The motion also alleged that the scoresheet included offenses which did not appear on the Department of Corrections’ website listing of the defendant’s prison history. The defendant requested that, pursuant to Lyons v. State, 823 So. 2d 250 (Fla. 4th DCA 2002), the circuit court hold an evidentiary hearing at which the state would have to prove the proper inclusion of the prior offenses on his scoresheet. See id. at 251 (on review of rule 3.800 motion, state has burden to prove that defendant committed any challenged conviction).

Within sixty days of the defendant filing the motion, the circuit court did not rule on the motion, meaning that the motion was considered denied. Fla. R. Crim. P. 3.800(b)(2)(B) and 3.800(b)(1)(B) (2008). The defendant then resumed this appeal. The defendant supplemented our record with his motion to correct sentencing error, and renewed the arguments from that motion in his initial brief.

In its answer brief, the state argues that, because the defendant did not challenge the prior offenses on his scoresheet at his original sentencing, he could not raise the objection after his violation of probation. The state relies on Fitzhugh v. State, 698 So. 2d 571 (Fla. 1st DCA 1997), which held that “an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.” Id. at 573.

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The state’s reliance on Fitzhugh is misplaced. In Fitzhugh, the defendant first raised his scoresheet objection on appeal. 698 So. 2d at 573. Here, the defendant first raised his scoresheet objection before the circuit court, both at the violation of probation sentencing and in his motion to correct sentencing error. Therefore, this appeal is ripe. See Fla. R. App. P. 9.140(e) (“A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).”) (emphasis added).

The proper issue here is whether a defendant who fails to challenge the inclusion of prior offenses on a scoresheet at his original sentencing may raise the challenge after his violation of probation. Our review is de novo. See Grosso v. State, 2 So. 3d 362, 364 (Fla. 4th DCA 2008) (“The legality of a sentence is a question of law and is subject to de novo review.”) (citations omitted).

We hold that a defendant who fails to challenge the inclusion of prior offenses on a scoresheet at his original sentencing may raise the challenge after his violation of probation. If we were to hold otherwise, the defendant still could raise the alleged sentencing error through postconviction motions. Under rule 3.800, the defendant could file a motion to correct sentencing error, even while an appeal is pending. Brooks v. State, 969 So. 2d 238, 241 (Fla. 2007). Under rule 3.850, the defendant could file a motion raising a sentencing error within two years after the sentence becomes final. Id. Given the opportunity to file these motions, we see no legal or practical reason why a defendant who fails to raise the challenge at his original sentencing cannot raise the challenge after his violation of probation. In the interests of justice and judicial economy, however, defendants obviously should raise the challenge at the earliest opportunity. See id. at 243 (recognizing “policy of encouraging defendants to seek an early remedy so that sentencing errors may be corrected as soon as possible — especially when those errors appear on the face of the record”). Of course, once a court has ruled upon the challenge on its merits, the defendant cannot repeat the challenge in a successive motion.

In reaching this holding, we align ourselves with the second district, which has held:

[A] defendant may challenge the inclusion of [sentencing] points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal. This rule

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applies even where the defendant pleads pursuant to a negotiated plea if he or she did not specifically agree to the inclusion of the points on the scoresheet.

Stubbs v. State, 951 So. 2d 910, 911 (Fla. 2d DCA 2007) (alterations in original; internal citations and quotations omitted).

Because the circuit court did not require the state to provide competent evidence of the prior offenses on the defendant’s scoresheet after his violation of probation, we remand for an evidentiary hearing for that purpose. Lyons, 823 So. 2d at 251. If the evidentiary hearing confirms a scoresheet error, the court shall consider resentencing the defendant under the “would-have-been-imposed” standard cited in State v. Anderson, 905 So. 2d 111 (Fla. 2005):

The would-have-been-imposed test . . . requires an examination of the record for conclusive proof that the scoresheet error did not affect or contribute to the sentencing decision. If the reviewing court cannot determine conclusively from the record that the trial court would have imposed the same sentence despite the erroneous scoresheet . . . resentencing is required.

Id. at 115-16. See also Brooks, 969 So. 2d at 242-43 (“would-have-been-imposed standard” applies to rule 3.800(b) motions).

Reversed and remanded.

POLEN and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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MARK MITCHELL, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2055.

District Court of Appeal of Florida, Fourth District.

December 30, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana Gardiner, Judge; L.T. Case No. 07011190CF10A.

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

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

MAY, Judge.

Technology confronts Florida’s statutory scheme for discovery of cellular telephone records in this appeal from the defendant’s conviction and sentence for burglary of a dwelling, robbery, and two counts of battery, all while armed with a deadly weapon. The defendant makes several arguments, none of which merit a reversal. We write to address the trial court’s admission of historical cell phone site evidence.

The incident giving rise to the crime involved a home invasion robbery of an elderly couple. As a result of the robbery, the male victim was taken to the hospital. The female victim remained home, but suffered a heart attack later that afternoon. The defendant was apprehended after he admitted the crime to his daughter, who then contacted her mother and called 911.

Among other evidence, the State obtained the defendant’s historical cell site information by requesting an Order Authorizing Disclosure of Cellular Telephone Billing Records and Cell Site Number and Location.¹ Initially, law enforcement obtained the records through an investigative subpoena. The defendant moved in limine or to suppress the evidence

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because the State had not complied with section 934.23, Florida Statutes (2007). The court suppressed the information, but allowed the State to obtain a proper court order.

When the State renewed the request for historical cell site records, the defense objected and renewed its motion to suppress, citing a recently published opinion, In re Application of the U.S. for an Order Directing a Provider of Electronic Communication Service to Disclose Records, 53,4 F. Supp. 2d 585 (W.D. Pa. 2008). After reviewing Hunter v. State, 639 So. 2d 72 (Fla. 5th DCA 1994), the trial court found the language in section 934.23(4)(a), Florida Statutes, mirrored the language in 18 U.S.C. §§ 2701 et. seq., and allowed the State a second opportunity to obtain the records.

At trial, defense counsel objected to the information on relevancy grounds. The court overruled the objection. This paved the way for testimony concerning the location of the cell phone and its use by the defendant around the time of commission of the crime.

The defendant argues on appeal that the court erred in permitting the State to obtain and introduce the defendant’s historical cell site records because it originally failed to obtain the records, pursuant to section 934.23, Florida Statutes. He further argues that the evidence should be excluded because the State essentially conducted a warrantless search and seizure of his phone records to find his historical physical location, in violation of his Fourth Amendment rights.

Since there are no facts in dispute, we review the legal issue de novo. Underwood v. State, 801 So. 2d 200, 202 (Fla. 4th DCA 2001).

“Chapter 934 protects against unauthorized interception of oral, wire, or electronic communications” and is “strictly construed and narrowly limited.” State v. Jackson, 650 So. 2d 24, 26 (Fla. 1995). Section 934.23 requires an officer to obtain a warrant or seek a court order when obtaining customer or subscriber records from an electronic communication provider. § 934.23(4)(a)1., 2., Fla. Stat. A court may issue the order under subsection (5), only if the “officer offers specific and articulable facts showing that there are reasonable grounds to believe the contents of a wire or electronic communication or the records of other information sought are relevant and material to an ongoing criminal investigation.” § 934.23(5), Fla. Stat. “[C]ontents of a communication,” however, are not obtainable under subsection (4)(a). § 934.23(4)(a), Fla. Stat. This section mimics subsections 2703(c) and (d) of the Stored Communications Act (SCA). 18 U.S.C. § 2703.

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Case law concerning historical cell site information is relatively new and unsettled. The Fifth District Court of Appeal has held that obtaining phone numbers from cell phone service providers is not a Fourth Amendment violation. See Figueroa v. State, 870 So. 2d 897 (Fla. 5th DCA 2004). Yet, no Florida court has addressed the prerequisite for obtaining historical cell site information.

In a case of first impression, the District Court for Massachusetts held that historical cell site information was obtainable through a court order issued pursuant to subsections 2703(c)(1)(B) and (d) of Title 18 of the United Stated Code. In re Applications of the U.S. for Orders Pursuant to Title 18 U.S.C. § 2703(d), 509 F. Supp. 2d 76 (D. Mass. 2007) (reversing a decision by the Magistrate Judge which required a warrant to obtain historical cell site information).²

The district court applied a three-part test to determine if section 2703 provided a proper means to obtain the information. First, the court determined that a cell phone service provider fits within the statutory definition of a “provider of electronic communication service[s],” as defined by the SCA. Id. at 79 (quoting 18 U.S.C. § 2510(15)). Second, the court determined that historical cell site information was “a record or other information pertaining to a subscriber to or customer of” an electronic communications service because it contained “data specific to the handling of a customer’s call.” Id. at 79-80 (quoting 18 U.S.C. § 2703(c)(1)). Third, the court determined that the information was not “content” information because the location of a cell tower disclosed nothing about the “substance, purport, or meaning” of the call. Id. at 80 (quoting 18 U.S.C. § 2510(8)). Lastly, the court found that because historical cell site information disclosed only information in the past and not the current location of the defendant, it did not implicate the Fourth Amendment. Id. at 80-81.

We now adopt the reasoning of the District Court of Massachusetts because our statutory scheme is so similar to the federal statute. We

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hold that historical cell site information is not content-based. The user of a cell phone has no expectation of privacy in those records. See Smith v. Maryland, 442 U.S. 735 (1979). And, because historical cell site information discloses only the defendant’s past location and does not pinpoint his current location in a private area, it does not implicate Fourth Amendment protections. See United States v. Knotts, 460 U.S. 276 (1983). In short, law enforcement need only comply with the provisions of section 934 to obtain historical cell site information.

The defendant also argues that the trial court erred in allowing the State a second chance to comply with the statute and that the second application failed to contain the statutorily required “specific and articulable facts.” We disagree.

In Hunter, the Fifth District held that the State could use an investigative subpoena to compel disclosure of medical records. 639 So. 2d at 74. In that case, the trial court quashed the original subpoena because it had been obtained without notice to the patient, but the State was permitted to obtain the records by requesting a second subpoena after notice. Id. at 73. Here, the trial court relied on Hunter to allow the State a second opportunity to obtain the historical cell site records. We find no error.

We further find that the affidavit presented in this case, while a modicum of detail, clearly provided the court with sufficient “specific and articulable” facts to allow the trial court to decide whether to order production of the records. The affidavit indicated that the “Cell Site Number and Location will show where he was located at the time he was making and receiving” phone calls “within ½ hour prior to and subsequent to the time of the crimes.” The defendant lived in West Palm Beach; the crime occurred in Pompano Beach. He made phone calls to his ex-wife during the night and morning of the crime. The cell site information was relevant to place the defendant in the area near the crime at the time of the crime. Additionally, given the eyewitness testimony, defendant’s admission, and physical evidence, any error would have been harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

For these reasons, we find no error in the admission of the historical cell site information. Therefore, we affirm.

Affirmed.

DAMOORGIAN and CIKLIN, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

Courtesy of David Edelstein

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ZAMONT JERELL BRANTON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-4319.

District Court of Appeal of Florida, Second District.

Opinion filed December 30, 2009.

Appeal from the Circuit Court for Hillsborough County, Anthony K. Black, Judge.

James Marion Moorman, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba C. MartinS-chomaker, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Zamont Jerell Branton seeks review of the order denying his motion for postconviction relief which was filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the summary denial of four subclaims in claim one because the

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postconviction court erroneously determined that these subclaims were conclusively refuted by the record. We affirm the denial of the remainder of Branton’s claims without comment.

The State charged Branton and codefendants Derrick Moultry and Daniel Pressley with armed carjacking and armed robbery based on allegations that they approached a man who was selling clothing out of the back of his car, threatened him with a gun, and stole the car and clothing. At trial, the State presented the testimony of the victim and the investigating detective. The victim identified Branton as one of the participants in the crime from a photopak prior to trial and in person at trial. The detective testified regarding the victim’s pretrial identification of Branton. Branton raised an alibi defense, claiming that he could not have committed the crimes on the date charged because he was at Busch Gardens with friends. Branton also claimed that the victim mistakenly identified him because the victim had previously sold clothing to Branton from his car. Branton called his girlfriend Chanel Wilson, her close friend Lequisha Jefferson, and James Ragsdale to testify in support of his defenses, but Branton did not take the stand.

In claim one, Branton alleged that trial counsel was ineffective for failing to interview and call several witnesses to testify at his trial, including Aubrey Wright, Daniel Pressley, Trevior Daniels, and Quantavia Ponder. Branton alleged that he asked counsel to interview and call these witnesses and informed counsel of the witnesses’ locations and the substance of their testimony. The court summarily denied relief as to these subclaims.

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As to witness Wright, Branton alleged that Wright was the girlfriend of codefendant Moultry. Wright would have testified that Moultry and some other men committed a carjacking and robbery but that Branton was not with them. Although Wright had previously made statements identifying Branton as one of the perpetrators, she would have testified that her previous statements were made under duress and coercion by Moultry.

The postconviction court determined that the record refuted Branton’s assertion that he was prejudiced by counsel’s failure to interview and call witness Wright. The court explained that “because the record contains no testimony that Wright identified [Branton] as being involved in the alleged offenses, her proposed testimony would be unnecessary.” However, testimony by Wright that Branton was not involved in the offenses would have been integral to Branton’s defenses of alibi and mistaken identification, even if it could have been impeached with Wright’s prior inconsistent statement. Accordingly, the summary denial of this subclaim was improper.

As to witness Pressley, Branton alleged that Pressley would have testified that he was at Branton’s house when Branton’s girlfriend Chanel Wilson and another girl picked up Branton to take him to Busch Gardens on the date of the offense. Pressley would have testified that Branton was not with Pressley and codefendant Moultry later that day. Additionally, Pressley would have testified that a person named Joshua was with him and Moultry and that Joshua resembles Branton.

The postconviction court determined that Pressley’s claim was refuted by an excerpt of a taped confession provided by the State in its response. This confession was made by Pressley and was introduced at Pressley’s trial. In addition to implicating

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Pressley, the confession also implicated Branton. We are not convinced that evidence from the record in Pressley’s trial can be used by the postconviction court to refute Branton’s postconviction claim. See Fla. R. Crim. P. 3.850(d) (“If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing.” (emphasis added)). Regardless, the existence of the taped confession did not refute Branton’s claim that Pressley would have testified differently at Branton’s trial. Even if Pressley could have been impeached with his prior taped confession, exonerative testimony from a codefendant would have been integral to Branton’s defense. Accordingly, the summary denial of this subclaim was improper.

As to witness Daniels, Branton alleged that Daniels would have testified that he spoke with Branton at a McDonald’s across the street from Busch Gardens at 6:15 p.m. on the date of the offense. Branton claims that this testimony would have corroborated Lequisha Jefferson’s testimony that she picked Branton and Wilson up from the McDonald’s at approximately 6:30 p.m. on that date.

The postconviction court determined that the testimony would have been cumulative to the testimony of witnesses Wilson and Jefferson. However, this finding is erroneous because the testimony of both Wilson and Jefferson was severely impeached due to their close relationship with Branton. See Balmori v. State, 985 So. 2d 646, 650 (Fla. 2d DCA 2008) (holding that postconviction court erred in determining evidence would have been cumulative to the defendant’s trial testimony because it was necessary to corroborate his testimony). Accordingly, the summary denial of this subclaim was improper.

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As to witness Ponder, Branton alleged that Ponder would have testified that Branton was not one of the individuals who was with the codefendants on the date of the offense. Although Ponder made a prior statement identifying Branton as a participant in the crimes, she would also testify that her prior statement was procured by threats. The postconviction court determined that Branton was not prejudiced by counsel’s failure to interview and call witness Ponder because the record contains no testimony that Ponder identified Branton as being involved in the crimes. However, as with the claim concerning the testimony of witness Wright, testimony by Ponder that Branton was not involved in the offenses would have been integral to his defense of mistaken identification and alibi even if it could have been impeached with the prior inconsistent statement. Accordingly, the summary denial of this subclaim was improper.

For the foregoing reasons, we reverse as to the denial of the above four subclaims. Because the court has already determined that the subclaims are facially sufficient, we remand for an evidentiary hearing.

Affirmed in part; reversed in part; remanded.

FULMER and DAVIS, JJ., Concur.

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

Courtesy of David Edelstein

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JULIO OQUENDO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-6326.

District Court of Appeal of Florida, Second District.

Opinion filed December 30, 2009.

Appeal from the Circuit Court for Polk County, Steven L. Selph, Judge.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

Julio Oquendo appeals from his convictions for promoting the sexual performance of a child and contributing to the delinquency of a minor, in violation of

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sections 827.071 and 827.04, Florida Statutes (2007).¹ We reverse the conviction for promoting a sexual performance but affirm the conviction for contributing to the delinquency of a minor.

Deputy Anderson received a complaint of a missing sixteen-year-old girl. The mother told the deputy that the girl had gone for a walk four hours earlier and had not returned. The deputy spoke to other family members and was given information that directed him to a trailer two or three blocks away where the girl had been seen in the past. The deputy approached the trailer and heard loud music playing. Through an open window, he could see a large television with a pornographic movie playing. The missing girl was seated between two men on a couch in front of the television. Oquendo was one of the men.

Deputy Anderson stepped back from the window and called for backup. When the backup deputy arrived a few minutes later, Deputy Anderson knocked on the door. Oquendo came to the door alone, and Deputy Anderson explained that he was investigating the report of a missing girl and asked to search the residence. Oquendo denied that she was in the home and refused to let him in.

A third deputy, Deputy Osborne, arrived at the scene, and because he knew Oquendo by his first name from working in the area, he was able to gain Oquendo’s consent to go in the house to retrieve the missing girl. While Deputy Osborne was at the front door with Oquendo, a Hispanic male in his twenties came out from the back bedroom. The Hispanic male indicated that he did not speak English. Deputy Osborne proceeded to the back bedroom, found the girl sitting on the floor

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getting dressed, and advised her to get up. While he was escorting her out of the house, he noticed Oquendo trying to conceal a crack pipe.

The girl testified at trial that she knew Oquendo from working with him cleaning houses. He was aware that she was sixteen. She saw him when she was out walking, and he wanted to show her his new TV. She went in the house, and they began smoking crack together. Another man came over and was speaking Spanish with Oquendo, which the girl did not understand. Oquendo asked the girl if she would go to the back room with the other man. She knew that Oquendo meant for her to have sex to get the money for her drugs. The Hispanic man gave Oquendo money to have sex with the girl. The girl consented, went in the back room, and had sex with the man. The door was shut, and no one else was in the room.

After the State rested, the defense moved for a judgment of acquittal, arguing that the evidence did not show a sexual performance, where the sexual activity had occurred in a private bedroom with no one else viewing the activity. The trial court denied the motion.

Section 827.071, Florida Statutes (2007), provides, in part:

(2) A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he or she employs, authorizes, or induces a child less than 18 years of age to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in a sexual performance. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection

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is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Subsection (1)(b) of section 827.071, defines “performance” as “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” Subsection (1)(h) defines “sexual performance” as “any performance or part thereof which includes sexual conduct by a child of less than 18 years of age.”

We agree with Oquendo that the State failed to prove a prima facie case of guilt under section 827.071 because there was no “performance,” as that term is defined in subsection (1)(b) of the statute, shown by the evidence.² Therefore, we reverse the conviction for promoting the sexual performance of a child and remand for the trial court to discharge Oquendo on that count.

We reject Oquendo’s second argument alleging improper comments by the prosecutor.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and LaROSE, 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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LEWIS LANGLAIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1462.

District Court of Appeal of Florida, Fourth District.

December 30, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 07-23629CF10A.

Carey Haughwout, Public Defender and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

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

JAMES W. McCANN, Associate Judge.

The Appellant was charged by Information with grand theft of a motor vehicle (Count I) and felony driving while license revoked (habitual offender) (Count III).¹ Both counts charged the defendant with third degree felonies punishable by a maximum of five years in the Department of Corrections.

On March 17, 2008, the Appellant signed a Plea of Guilty or No Contest to Criminal Charges in Circuit Court indicating that he was pleading guilty to the charges of Count I “Grand Theft” and Count II “DWLS” (driving while license suspended).² The plea agreement contained a separate provision in which Appellant acknowledged that he understood that the maximum penalty provided by law is: “Count I – 5 years FSP” (Florida State Prison); and “Count II – 364 days BCJ” (Broward County Jail). A third provision of the agreement indicated that if the court accepts the Appellant’s plea, his sentence would be an adjudication of guilt with a concurrent sentence of 364 days in the Broward County Jail. The Appellant initialed each provision of the plea agreement, including those referred to above.

In the change of plea hearing, the trial judge explained the plea agreement to the Appellant stating, in pertinent part, “You’ve indicated

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an intent to enter a plea to Grand Theft and Driving While License Suspended. Is that what you want to do here today?” Appellant responded “yes.” Next, the court advised the Appellant that the maximum penalty for grand theft is five years in the Florida State Prison; and that the maximum sentence for “DWLS” is one year in the Broward County Jail. The trial court further explained that the negotiated plea with the State is an adjudication with a 364 day sentence in the Broward County Jail with credit for time served of 88 days. After the court found that there was a sufficient factual basis for entry of the plea, the defendant pled no contest after which the court made the following pronouncement:

The court accepts your plea of no contest; finds you freely and voluntarily entered; judgment along [sic] sentence of the court; adjudication 364 days in Broward County Jail; credit for 88 days time served.

The judgment and sentence signed by the court on March 17, 2008, indicated that the Appellant entered a plea of no contest and was adjudicated guilty of Count I Grand Theft (motor vehicle), a third degree felony; and Count III “Felony DWLREV³ (habitual offender),” a third degree felony. The Appellant contends that he entered a plea of no contest to the lesser included offense charged in Count III of DWLS, the first degree misdemeanor, which carries a maximum sentence of one year in the county jail.

Based upon our review of the written plea agreement which utilized the abbreviation “DWLS” and the trial court’s oral pronouncement that the Appellant was entering a plea to “Driving While License Suspended” with a maximum sentence of “one year in the Broward County Jail,” it appears that there is a scrivener’s error in the Judgment and Sentence indicating that the Appellant entered a plea to, and was adjudicated guilty of the third degree felony of Driving While License Revoked (habitual offender); which is the as-charged offense in Count III.

The State argues that it never negotiated a plea to a lesser charge under Count III, or amended the Information to do so. However, the State raised no objection at the plea and sentence hearing when the court specifically advised the Appellant that he was entering a plea to Driving While License Suspended which carried a maximum sentence of one year in the Broward County Jail. Similarly, the State should have

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registered an objection to the written plea of no contest form submitted to the court which contained the provisions that he was pleading to the first degree misdemeanor of “DWLS” and that it carried a maximum sentence of 364 days [sic] in the Broward County Jail. The time for the State to have raised an objection or issue as to the charge that the Appellant was entering a plea to, and which he would be adjudicated guilty of, was at the change of plea and sentencing hearing.

Both the Appellant and the State are entitled to a Judgment and Sentence that conforms to the plea agreement. See Delancey v. State, 653 So.2d 1062 (Fla. 1995). The Judgment and Sentence convicting the Appellant of the third degree felony of Driving While License Revoked (habitual offender) must be vacated and corrected to reflect that the defendant entered a plea to, and was convicted of Driving While License Suspended, a violation of Florida Statutes § 322.34(2)(b), a first degree misdemeanor.

We reverse and remand to the trial court with instructions to correct the Final Judgment and Sentence to reflect that the defendant was adjudicated guilty of Driving While License Suspended, a first degree misdemeanor.

WARNER and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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BRIAN GADDY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-1469.

District Court of Appeal of Florida, Second District.

Opinion filed December 30, 2009.

Appeal from the Circuit Court for Manatee County, Janette Dunnigan and Gilbert A. Smith, Jr., Judges.

James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.

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

LaROSE, Judge.

Brian Gaddy appeals the trial court’s order revoking his probation. The trial court found that Mr. Gaddy violated three probation conditions: failing to report to his probation officer (condition two), moving from his approved residence without

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permission (condition four), and committing four new law violations (condition five). Mr. Gaddy argues that only hearsay testimony established the alleged violations of condition five. He seeks a new revocation hearing to determine if the trial court would revoke probation solely on the remaining two grounds. The State concedes error as to the evidence supporting the new law violations. However, the State contends, and we agree, that competent, substantial evidence otherwise supports the probation revocation. It is only necessary to remand to correct the trial court’s order.

The trial court placed Mr. Gaddy on two years’ probation in September 2008, for fleeing or attempting to elude a law enforcement officer in a vehicle driven at high speed or with wanton disregard for persons or property, a second-degree felony. See § 316.1935(3)(a), Fla. Stat. (2007). In December 2008, Mr. Gaddy moved from his approved residence without prior permission. The Department of Corrections did not know his whereabouts and, thus, classified him as an absconder. Mr. Gaddy also failed to report to his probation officer. An affidavit of violation was filed alleging these violations of conditions two and four.

Subsequently-filed affidavits alleged that Mr. Gaddy committed four new law violations, in violation of condition five. At the revocation hearing, the State presented only hearsay evidence to support these violations. A trial court may consider hearsay testimony at a violation of probation hearing. See Robinson v. State, 744 So. 2d 1188, 1189 (Fla. 2d DCA 1999). But, hearsay may not be the sole basis supporting a ground for revocation. Id. at 1189 n.1 (citing Kipp v. State, 657 So. 2d 931, 932 (Fla. 2d DCA 1995)); Franklin v. State, 226 So. 2d 461, 462 (Fla. 2d DCA 1969) (explaining that the introduction of hearsay in a revocation hearing is not error per se, so long as there is other proper and legally admissible evidence upon which the trial court can

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base its decision to revoke probation on a specific ground). The State failed to prove by competent, substantial evidence that Mr. Gaddy violated condition five.

Nevertheless, the State established violations of conditions two and four by competent, substantial evidence. Standing alone, these violations justify revocation of probation. See Franklin, 226 So. 2d at 462; Robinson v. State, 773 So. 2d 566, 567-68 (Fla. 2d DCA 2000) (striking three grounds for revocation of probation but affirming revocation where defendant violated condition requiring him to file monthly reports); Green v. State, 19 So. 3d 449 (Fla. 2d DCA 2009) (holding that revocation of probation and sentence need not be reconsidered where one condition was not established but where competent, substantial evidence supported the trial court’s findings of violations of other conditions). We are convinced beyond a reasonable doubt that the trial court would have revoked probation on these two grounds alone.

Accordingly, we affirm the revocation of Mr. Gaddy’s probation and the three-year prison sentence imposed. We remand for the trial court to strike the findings of violations of condition five and to enter a corrected revocation order reflecting violations of conditions two and four. Mr. Gaddy need not be present for the correction of the revocation order.

ALTENBERND and WHATLEY, JJ., Concur.

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

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JESSE DELAROSA, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-2025.

District Court of Appeal of Florida, Second District.

Opinion filed December 30, 2009.

Appeal from the Circuit Court for Hillsborough County, Anthony K. Black, Judge.

Jesse Delarosa, pro se.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Jesse Delarosa appeals the summary denial of ground (2)(a) of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the postconviction court erred by denying this claim as conclusory, we reverse and remand the denial of that ground. We affirm without comment the denial of all other grounds raised in the motion.

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In 2005, Delarosa was convicted of attempted murder of a law enforcement officer and obstructing or opposing an officer with violence. His judgments and sentences were affirmed by this court.

In ground (2)(a) of his postconviction motion, he alleged that his trial counsel was ineffective for failing to impeach a state witness, Deputy Andrew Deluna, with a prior inconsistent statement. Specifically, he asserted that within minutes of his (Delarosa’s) arrest, Deputy Deluna gave a written statement to another officer that he (Deputy Deluna) had been attacked by three Mexican men. Yet at trial, Deputy Deluna testified that he had been confronted only by Delarosa. Delarosa contended that if his trial counsel had impeached Deputy Deluna with the prior inconsistent statement, it would have cast doubt on Deputy Deluna’s credibility.

The State responded to this claim by asserting: (1) that it was unaware of any such written statement and (2) that Delarosa’s claim was conclusory in nature because Delarosa failed to attach the written statement to his motion.

In summarily denying this claim, the postconviction court agreed with the State’s response and found that “without support that there exists this written statement by which to impeach [Deputy] Deluna, Defendant’s allegation is conclusory and must be denied.” In making this determination, the postconviction court erred.

Delarosa’s claim was not conclusory¹ for two reasons. First, Delarosa alleged a legally sufficient claim. Delarosa specified what portion of Deputy Deluna’s

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testimony could have been impeached, and he also specified how he was prejudiced by counsel’s failure to impeach Deputy Deluna with the prior inconsistent statement. Such a claim is cognizable in a rule 3.850 motion. Cf. Mohr v. State, 17 So. 3d 1249 (Fla. 2d DCA 2009) (agreeing that appellant’s claim was legally insufficient where he failed to allege what portions of witness’s testimony could have been impeached or how counsel’s failure to do so affected trial but reversing in part and remanding pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007)).

Second, because no evidentiary hearing was held on this claim, the postconviction court was required to accept Delarosa’s allegations as true unless they were refuted by the record, see Peede v. State, 748 So. 2d 253, 257 (Fla. 1999), and Delarosa was not required to attach the purported written statement to his motion in order for the claim to be valid, see Mann v. State, No. 2D09-127, 2009 WL 3673079 at *1 (Fla. 2d DCA Nov. 6, 2009) (“[T]he law does not require a prisoner to support his sworn motion with additional evidence.”).

Here, nothing in the record refutes Delarosa’s allegations, and the State’s bare assertion that it was unaware of Deputy Deluna’s written statement is insufficient to rebut Delarosa’s sworn allegation that such written statement existed. See Clark v. State, 662 So. 2d 729, 730 (Fla. 2d DCA 1995) (holding that State’s response that appellant never sent the State a copy of an interstate agreement on detainers (IAD) request was insufficient to rebut appellant’s sworn allegation that he had advised trial counsel that the time limit imposed by IAD had expired, that he was entitled to dismissal of the charges, and that he sent IAD request to State).

For these reasons, the postconviction court erred by summarily denying ground (2)(a) of Delarosa’s postconviction motion as conclusory. We therefore reverse

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the summary denial of ground (2)(a) and instruct that on remand, the postconviction court should either attach record documents refuting this claim or conduct an evidentiary hearing.

Affirmed in part; reversed in part; remanded.

FULMER and DAVIS, JJ., Concur.

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

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Notes:

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CAROL THOMPSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-1123.

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 Polk County, Michael E. Raiden, Judge.

Carol Thompson, pro se.

CRENSHAW, Judge.

Carol Thompson appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Thompson pleaded guilty to driving with a suspended license, driving under the influence, and possession of methamphetamine. Her plea agreement called

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for a total sentence of eighteen months in prison. Paragraph 21 of the plea agreement states, “I understand that if I fail to timely appear for my Pre-Sentence Investigation interview or Sentencing that my plea will stand but the sentencing agreement is void and I may then receive the maximum sentence authorized by law.”

Sentencing was set for June 9, 2006. On that day Thompson was present in the courthouse but she was not at the right courtroom when her case was called. The trial judge entered a capias but withdrew it the same day. Sentencing was reset for June 29. On that day, she arrived at 11 a.m., two and a half hours late. She was taken into custody and sentencing was reset for July 14.

At the July 14 sentencing hearing, she explained why she had been late to court on June 9 and 29. She explained that on June 29, she had arranged for her cousin to drive her to court, but her cousin had to rush to the hospital that morning for a medical emergency involving Thompson’s grandmother. Thompson had to arrange for alternative transportation at the last minute and had to make arrangements for her two children. Thompson’s attorney explained that Thompson was scheduled to be in court at 8:30. She had arrived at the end of the court session, and the judge had elected to have her taken into custody.

After hearing Thompson’s explanation for her late appearances, the court announced that due to Thompson’s having failed to timely appear, the sentencing agreement was void pursuant to paragraph 21 of the plea agreement and she could receive whatever the law allowed. The court then proceeded to impose a total sentence of five years in prison. There was no objection raised by Thompson’s attorney to the sentence imposed.

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In her motion for postconviction relief, Thompson claimed, among other things, that her sentence was illegal because her late arrival to court was caused by circumstances beyond her control, and therefore the breach of the plea agreement was legally excused. Thompson claimed that she received ineffective assistance of counsel because her attorney failed to argue Florida law on the legal effect of her late arrival due to circumstances beyond her control. In an amendment to her motion, Thompson attached an affidavit of Patricia Gastrock, in which Gastrock attests that she had agreed to drive Thompson to her sentencing hearing on June 29, 2006, but that morning she left Thompson without a ride.

In denying the motion, the postconviction court found that the sentence was not contrary to the law because the plea agreement did not note any exceptions for arriving late due to circumstances beyond the defendant’s control. The court also found that counsel was not ineffective because he, in fact, had argued that her tardiness was due to circumstances beyond her control.

The sentencing transcript indicates that the trial court applied a strict interpretation to the provision of the plea agreement requiring timely appearance for sentencing. Even though there was no evidence before the court that Thompson’s tardiness was willful, Thompson’s counsel did not object to the trial court’s conclusion that Thompson had breached the plea agreement. Nor did Thompson’s counsel argue that a finding of willfulness was required before the court could apply paragraph 21 of the plea agreement and disregard the agreed-upon sentence.

In Robinson v. State, 946 So. 2d 565 (Fla. 2d DCA 2006), this court reversed the denial of a claim of ineffective assistance of counsel under similar

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circumstances. We explained that non-willful failure to appear for sentencing will not vitiate a plea agreement. ” ‘[W]here timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.’ ” 946 So. 2d at 567 (quoting Johnson v. State, 501 So. 2d 158, 160-61 (Fla. 3d DCA 1987)).

Applying Robinson here leads to the conclusion that Thompson pleaded a prima facie case of ineffective assistance of counsel in alleging that counsel failed to make the appropriate legal objection to the sentence imposed, where there was no finding and no evidence to support a finding that Thompson willfully breached the plea agreement. The postconviction court was required to conduct an evidentiary hearing on this claim.

In all other respects, we affirm the denial of Thompson’s motion.

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

FULMER and KHOUZAM, JJ., Concur.

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

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CASEY REEVES, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4997.

District Court of Appeal of Florida, Fourth District.

December 30, 2009.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. Case No. 2007CF15352 AXX.

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

Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

JAMES W. McCANN, Associate Judge.

On April 14, 2008, the Appellant, Casey Reeves, entered into a negotiated plea bargain with the State which was accepted by the court. The Appellant was immediately adjudicated and sentenced to five years in the Department of Corrections, with the agreement that he would be furloughed until the mitigation hearing. If he timely appeared at the mitigation hearing without any new law violations, his sentence would be reduced to a year and one day in the Department of Corrections. For reasons not germane to this appeal, the actual mitigation hearing did not occur until November 13, 2008, at which time the court found that the Appellant had a new law violation, and denied the Motion to Mitigate.

Since the State, the defendant and the court agreed at the time of the Change of Plea, Judgment and Sentence, that the defendant would be entitled to a mitigation of sentence hearing sixty-three days after the date sentence was imposed, we treat that as a stipulated motion and order, pursuant to Rule 3.050, Fla. R. Crim. P., to enlarge the sixty day time limit to file and hear a Rule 3.800(c) motion to mitigate sentence. The sixty day time limit would otherwise be jurisdictional. See State v. Woodard, 866 So.2d 120 (Fla. 4th DCA 2004); Seeber v. State, 956 So.2d 1240 (Fla. 4th DCA 2007).

However, this does not result in an enlargement of time to file a notice of appeal of an alleged violation of the plea agreement pursuant to Rule 3.170(1), Fla. R. Crim. P., and Rule 9.140(b)(2)(A)(ii)(b). A notice of

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appeal on such grounds was required to be filed within thirty days of the Judgment and Sentence.¹

The plea agreement entered into by the Defendant, the State and the court resulted in an immediate adjudication and sentence to five years in the Department of Corrections with a contemplated furlough of sixtythree days, at which time the Appellant would turn himself in to the trial court; and, if there were no new law violations, his sentence would be mitigated to one year and one day in the Department of Corrections. Unlike the more common plea agreement whereby the plea is entered and accepted by the court, followed by an agreed upon postponed sentencing date (with the term of sentence conditioned on the defendant timely appearing for sentencing without any new law violations), the method employed in this case by the State, Appellant and the court resulted in all applicable time periods beginning to run on the date of sentencing, including, but not limited to, the thirty day time period to file a notice of appeal.

We are compelled to treat this case in the posture that it comes to us. Both the Notice of Appeal and the Statement of Judicial Acts to be Reviewed reflect that this court is to review the trial court’s Denial of the Defendant’s Motion to Mitigate Judgment of Conviction and Sentence. It is well settled that an order denying a motion to mitigate a judgment and sentence pursuant to Rule 3.800(c), Fla. R. Crim. P., is a non-appealable order. Howard v. State, 914 So.2d 455 (Fla. 4th DCA 2005); Brown v. State, 954 So.2d 1253 (Fla. 4th DCA 2007); Oser v. State, 699 So.2d 844 (Fla. 4th DCA 1997).

Accordingly, we sua sponte dismiss the appeal.

WARNER and LEVINE, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

—————

Notes:

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Courtesy of David Edelstein

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