Florida Criminal Law Opinions

IRFAN NAWAZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-1072.

District Court of Appeal of Florida, First District.

Opinion filed January 29, 2010.

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

Michael D. Walsh and Michelle R. Walsh of Michael Walsh, P.A., Miami, for Appellant.

Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant seeks review of his sentence after entering a guilty plea for traveling to meet a minor to commit an unlawful sex act and for soliciting a minor to engage in unlawful sexual conduct. He asserts that he is entitled to have his sentence vacated and to be resentenced by another judge because the trial court

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improperly considered appellant’s national origin when imposing the sentence.

During the sentencing hearing, the prosecution played portions of a taped interview of appellant after his arrest in which he expressed his views regarding the morality of American women. Specifically, he stated that during conversations with underage women, he laughed at how stupid American women are and expressed his beliefs regarding the immorality of Americans. During the interview, appellant also remarked how glad he was to have married a woman from his home country of Pakistan: “[I] thank God that I did not marry anyone from this country who are that sexually hungry and who want that many stupid things to be done to them by a stupid stranger.”

The transcript of appellant’s sentencing reflects the following exchange before the trial court pronounced its sentence:

THE COURT: Irfan Nawaz, you are a degenerate. You are a hypocrite and you are a bigot. You invited behavior from young women that would confirm your contempt for this country and then you laugh at them and ridicule them when you succeed in leading them astray. That is contemptible.

THE DEFENDANT: Yes, sir.

THE COURT: On behalf of my countrywomen I join you in thanking God that you did not marry an American woman.

THE DEFENDANT: Yes, sir.

THE COURT: If in the days to come, Irfan Nawaz, you find yourself in a living hell it is because you deserve it.

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THE DEFENDANT: Yes, sir.

THE COURT: As to count one, it is the judgment and sentence of this court that you be committed to the Department of Corrections for a period of 15 years. As to count two, you are committed to the custody of the Department of Corrections for a term of five years, sentences to run consecutive. If you believe this sentence to be illegal, you have 30 days from today’s date to commence an appeal.

Appellant raises, for the first time, on appeal that the trial court improperly considered his national origin in imposing his guidelines sentence of twenty years. Because he did not preserve the issue by raising a contemporaneous objection in the trial court, this court may consider the error only if it is fundamental. See, e.g., Jackson v. State, 983 So. 2d 562, 574 (Fla. 2008) (“[A]n unpreserved error may be considered on appeal only if the error is fundamental.”); Hannum v. State, 13 So. 3d 132, 135 (Fla. 2nd DCA 2009). Although a defendant challenging a sentencing error must generally file a motion under rule 3.800(b), Florida Rules of Criminal Procedure, in order to raise fundamental error on appeal, if the error is not an error in the sentencing order, but rather an error in the sentencing process, rule 3.800(b) does not apply. See Jackson, 983 So. 2d at 569, 573-74. Here, the fundamental error asserted by appellant is the trial judge’s consideration of appellant’s national origin during the sentencing process, not an error in the sentencing order. See Hannum, 13 So. 3d at 135 (citing Brown v. State, 994 So. 2d 480, 481 (Fla. 1st DCA 2008)). Accordingly, appellant was not required to file a rule 3.800(b)

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motion before raising fundamental error in this appeal. See Hannum, 13 So. 3d at 135. We, therefore, review the trial court’s conduct under the fundamental error standard.

Fundamental error “must be basic to the judicial decision under review and equivalent to a denial of due process.” Hopkins v. State, 632 So. 2d 1372, 1374 (Fla. 1994) (quoting State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993)). Although an appellate court generally may not review a sentence that is within statutory limits under the Criminal Punishment Code, an exception exists, when the trial court considers constitutionally impermissible factors in imposing a sentence. See, e.g., Evans v. State, 816 So. 2d 742, 743-44 (Fla. 4th DCA 2002); Dowling v. State, 829 So. 2d 368, 370-71 (Fla. 4th DCA 2002); Johnson v. State, 679 So. 2d 831 (Fla. 1st DCA 1996) (remanding for resentencing where comments by trial court could be read to infringe upon defendant’s decision to exercise his constitutional right to a jury trial); Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986) (vacating sentence where court penalized the defendant for exercising his religious freedom by possessing a Bible in court as well as “for exercising his privilege against self-incrimination, his right to be tried by a jury, and his right to testify in his own behalf”). Reliance on constitutionally impermissible factors is a violation of the defendant’s due process rights. Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004) (remanding sentence where court impermissibly considered defendant’s

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privilege to exercise his right against self-incrimination); see also Hannum, 13 So. 3d at 135-36. Accordingly, we must consider whether the trial judge’s comments during sentence were “so erroneous as to be equivalent to a denial of due process.” Hannum, 13 So. 3d at 135.

Here, appellant asserts that the trial court considered a constitutionally impermissible factor, namely appellant’s national origin, during the sentencing process. As far as we have been able to determine, this case presents an issue of first impression in Florida. Several federal courts have held that national origin is a constitutionally impermissible factor to consider as a basis for sentencing. See, e.g., United States v. Onwuemene, 933 F.2d 650, 651 (8th Cir. 1991) (“[S]entencing an offender on the basis of factors such as race, national origin, or alienage violates the Constitution.”); see also United States v. Edwardo-Franco, 885 F.2d 1002, 1005 (2d Cir. 1989) (“[R]ace and nationality should play no adverse role in the administration of justice.”). However, reference to national origin during sentencing “is permissible, so long as it does not become the basis for determining the sentence.” United States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994) (emphasis added) (finding national origin was not the basis for sentencing where trial judge clarified in sentencing order that defendant’s intelligence and lack of remorse and not his naturalized status were the basis for the sentence); see also Onwuemene, 933 F.2d at 652 (holding that remand was necessary where

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court’s statements at sentencing included both permissible and impermissible considerations and court could not determine whether sentence would have been rendered absent impermissible considerations).

We find the rationale followed by the federal courts to be persuasive with regard to the challenge raised by appellant. We agree with appellant that the comments by the trial judge could reasonably be construed to suggest that the trial judge based appellant’s sentence, at least in part, on his national origin.

We are further mindful of the mandate that, for justice to be done, it must also appear to be done. See, e.g., Scott v. Anderson, 405 So. 2d 228, 234 (Fla. 1st DCA 1981) (“[T]o perform its high function in the best way `justice must satisfy the appearance of justice.’”) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). Because it is unclear whether the trial court would have imposed the same sentence absent consideration of appellant’s national origin, we must vacate appellant’s sentence and remand for resentencing before a different judge.

REVERSED AND REMANDED.

WEBSTER, PADOVANO, and ROWE, JJ., CONCUR.

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

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Eduardo Galego, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-2011.

District Court of Appeal of Florida, Third District.

Opinion filed January 29, 2010.

An Appeal from the Circuit Court for Miami-Dade County, John Schlesinger, Judge, Lower Tribunal No. 02-26957.

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

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

Before WELLS, CORTIÑAS, and SALTER, JJ.

CORTIÑAS, J.

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Eduardo Galego was a sex offender on probation who was living under the Julia Tuttle Causeway. On the night of January 24, 2008, Galego missed his 10 p.m. curfew by three hours. Galego’s cell phone records show that he had attempted to call his probation officer, Lorenzo Salazar, twice, at 10:00 p.m. and 10:05 p.m., but did not leave a message. At 1:00 a.m., Galego spoke to Salazar and explained that he was ill, had fallen asleep on a bus, and had missed his bus stop. From 2:20 a.m. until 6:25 a.m., Galego was at the Mount Sinai Hospital emergency room being treated for his illness. Galego was found to have violated his probation and sentenced to twenty-five years in prison. We reverse.

The State offered evidence to support Salazar’s theory that Galego had missed curfew willfully because he had spent the afternoon drinking at a party. First, Salazar testified that when he had spoken with Galego that afternoon, he had heard “some music” and “a lot of noise and other people in the background,” which gave him the impression that Galego was at a party. On cross-examination, Salazar admitted that this was “just a guess.” Second, the reason Galego gave for missing his curfew was that he had fallen asleep on a bus. Third, Salazar stated that when Galego had said that he felt “really sick” and wanted to go to the hospital, he “didn’t sound well,” and “his speech was impaired somewhat.” Finally, when Salazar interrogated Galego the next morning, his answers “didn’t

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make any sense,” and a saliva screen for alcohol tested positive.¹ Based on this evidence and the allegation that Galego had failed to call Salazar until three hours after his curfew, the very able trial judge concluded that Galego’s hospital visit was meant to cover up his drinking.

The court made this ruling despite referring to the testimony of Galego’s expert witness, Dr. Pedro Jose Greer, as “honest and fourth coming [sic].” Dr. Greer,² a renowned physician in Miami, cited voluminous medical data completely antipodean to Salazar’s hypothesis that Galego had been drinking. Although Dr. Greer had never met Galego prior to the hearing at which he testified, he had reviewed the lab results from Galego’s emergency room visit the night in question.

Q [D]id you see anything in those medical records that indicated that Mr. Gallego [sic] had anything to drink or was it [sic] drunk that night?

A There was no documentation in the chart or anything of that nature.

Q And based on your experience as a doctor, there probably would be, right?

A One hundred percent. You would always document that . . . .

To the contrary, Dr. Greer testified that results from tests of Galego’s liver showed that his “liver enzymes were completely normal,” whereas in someone who had been drinking, “[y]ou would expect A.S.T. That’s a very sensitive enzyme . . . [that] would generally bump up with alcohol.” Dr. Greer noted that

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Galego’s records showed no documentation of elevated liver enzymes, nor did they show that he smelled like alcohol.

Dr. Greer testified that Galego’s impaired speech and odd behavior could be explained by the fact that he has suffered from diabetes for the past seventeen years: if a diabetic has a cold, a virus, or any other infection, such as the one that prompted Galego’s cousin to give him Robitussin, their blood sugar would become elevated, as was Galego’s,³ and they would suffer “a change in their mental status, a change in their normal behavior, maybe their speech is slurred, maybe they’re confused, maybe they can’t answer a question or stay concentrated.” This “[a]ltered mental status” would include seizures and not understanding what was going on. Additionally, Dr. Greer said that Galego “was a little mind depleted as you can tell by his B.U.N. or BUN [Blood Urea Nitrogen].” Furthermore, Dr. Greer testified that Galego’s elevated B.U.N. and “mildly elevated lite pace with abnormal hemalades” showed that “he was a little volume depleted” and had a stomach virus, which explained why he fell asleep on the bus.⁴

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Dr. Greer further testified that Galego’s urinalysis “showed some bacteria with low WBCs, [which] could mean he [had] a UTI or a stone” and that diabetics with a urinary tract infection “get a lot of a false positive readings” when their urine is tested for alcohol. He said that the test Salazar used is not a direct test of alcohol, and the correct procedure would have been to use “[a] pure blood alcohol [test]” to confirm it. No blood alcohol test was given to Galego.

In addition to Dr. Greer’s testimony, Galego’s cousin testified that Galego “doesn’t drink” and that she had not known him to drink anywhere. Salazar himself testified that he had never smelled alcohol on Galego’s breath and had always found him to be sober.

It is the State’s burden to prove, by the greater weight of the evidence, that a probation violation is a willful and substantial one. Hines v. State, 789 So. 2d 1085, 1086 (Fla. 2d DCA 2001). However, rather than provide substantial and competent evidence to prove its case, here the State relied upon sheer conjecture. See Dean v. State, 948 So. 2d 1042, 1045 (Fla. 2d DCA 2007) (holding that where there was no direct evidence regarding probationer’s alcohol consumption, and “the only direct evidence presented was to the exact contrary,” the State failed to prove willful and substantial violation). Based on Dr. Greer’s unrebutted testimony, which showed that Galego missed his curfew because of issues with diabetes and not because he had been drinking, we hold that the State did not, as a

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matter of law, satisfy its burden to prove the probation violation by a preponderance of the evidence.

This opinion shall take effect immediately, notwithstanding any motions for rehearing.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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CRISTON OLYMPIA McKINNEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-4012.

District Court of Appeal of Florida, First District.

Opinion filed January 29, 2010.

An appeal from the Circuit Court for Escambia County, T. Michael Jones, Judge.

Nancy A. Daniels, Public Defender and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.

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

WETHERELL, J.

Appellant was convicted of armed robbery, armed burglary, and false imprisonment, and was sentenced to 12 years in prison. He raises two issues in

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this direct appeal: 1) whether the trial court erred in denying his motion to suppress the victim’s out-of-court and in-court identifications, and 2) whether the trial court abused its discretion in not sentencing him as a youthful offender. We affirm both issues, and write only to address Appellant’s contention that the trial court impermissibly based its sentencing decision on its personal opinion of the youthful offender program.

The trial court has discretion to sentence as a youthful offender a defendant who is at least 18 years old and has been found guilty of a felony (except for a capital or life felony) committed before the defendant’s 21st birthday. § 958.04(1), Fla. Stat. (2007). However, “[t]he lower court is under no obligation to sentence [a defendant] under the Youthful Offender Act unless the lower court believes such a sentence would be appropriate.” Holmes v. State, 638 So. 2d 986, 987 (Fla. 1st DCA 1994); see also Bell v. State, 429 So. 2d 403, 404 (Fla. 1st DCA 1983). “[A]pplication of the Youthful Offender Act to any particular defendant is discretionary with the trial judge who is in the best position to determine whether sentencing under the act is the most desirable treatment for that defendant.” Ellis v. State, 475 So. 2d 1021, 1023 (Fla. 2d DCA 1985).

The trial court’s sentencing discretion under the Youthful Offender Act is not unbridled. Like any other exercise of judicial discretion, the trial court’s sentencing decision must be supported by logic and reason and must not be based

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upon the whim or caprice of the judge. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980); see also Booker v. State, 514 So. 2d 1079, 1084 (Fla. 1987) (“The abuse of discretion standard exists to ensure that sentences are not imposed arbitrarily or capriciously or at the whim of an individual judge whose personal feelings against a particular defendant, or a particular type of crime, may render the sentence imposed so offensive to traditional notions of justice that it does not meet the objective test of reasonableness.”).

At sentencing, Appellant requested that the trial court sentence him as a youthful offender because he was 18 years old when the offenses were committed and he had no prior record except for a marijuana charge as a juvenile. The state objected to a youthful offender sentence, stating “this is not the type of case for that sort of treatment.” The trial court recognized that it had the discretion to sentence Appellant as a youthful offender, but it expressly decided not to do so. In explaining its decision, the trial court stated:

The court has had the opportunity . . . to know this case fairly well because I’ve basically had it tried before me twice. The first time on the motion hearing and the second time the actual trial and I do believe there was some influence going on there over you, I mean [defense counsel] has indicated the perplexing nature of somebody without an extensive prior criminal record such as you getting involved in something so significant and impactful as robbery and burglary [with] a firearm and I think in part it can be explained by your presence with the other individuals involved in the criminal activity but there is a fairly candid look into your personal nature in

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the presentence investigation where one reads that you have regularly before reaching the age of entitlement been drinking alcoholic beverages and have regularly abused controlled substances and… that reveals a disregard of the law.

* * *This is not one of those crimes somebody just stumbles into. It is not an accidental kind of occurrence. It was . . . a planned enterprise between you and the others involved to do this and for that reason I have to take that and look at it seriously.

I do find you guilty and adjudicate you guilty. In part because of my personal diminishing regard for the youthful offender program, not because of you but because if the youthful offender program was meritorious and worthy . . . I would at least give it some thought but in light of the nature of this offense I don’t even give it passing consideration because I just don’t think it is the right thing to do. I don’t think it takes it as serious and a crime of this nature requires it to be dealt with and for that reason I will not be imposing a youthful offender sentence.

Focusing on the last paragraph, Appellant contends that the trial court abused its discretion by basing its decision not to sentence him as a youthful offender on the court’s personal opinion of youthful offender program. We agree that the trial court’s views on the efficacy of the youthful offender program as a whole have no place in its sentencing decision. However, when those comments are viewed in context of trial court’s complete explanation of its sentencing decision, we are satisfied that the court’s decision not to sentence Appellant as a

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youthful offender was properly based upon a consideration of Appellant’s circumstances and the serious nature of his crimes, rather than the court’s opinion of the youthful offender program. Accordingly, we conclude that the trial court did not abuse its discretion in declining to sentence Appellant as a youthful offender.

For these reasons, the judgment and sentence on appeal are AFFIRMED.

LEWIS and THOMAS, JJ., CONCUR.

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

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WARDELL BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-117.

District Court of Appeal of Florida, Second District.

Opinion filed January 29, 2010.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County, Edward J. Volz, Judge.

WHATLEY, Judge.

Appellant’s motion for rehearing is granted. The prior opinion dated September 4, 2009, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

Wardell Brown challenges the postconviction court’s denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm. Our affirmance is without prejudice to Brown to seek habeas relief in the circuit court of the county in which he is currently incarcerated.

A jury found Brown guilty of committing an aggravated battery, a second-degree felony. § 784.045, Fla. Stat. (1991). The trial court sentenced Brown to twenty years in prison as a habitual felony offender (HFO) followed by five years of probation. Brown was released from prison in October 2005 after serving about fourteen and one-half years. He violated probation and was sentenced on March 27, 2007, to four and

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one-half years in prison. The trial court at revocation (hereinafter, “revocation court”) did not orally mention HFO status, and the revocation sentencing documents do not specify that the sentence is a habitualized sentence.

In a subsequent postconviction proceeding, not at issue here, the postconviction court granted Brown credit for time served. The awarded credit exceeded the post-revocation four-and-one-half-year sentence; as a result, that sentence had been fully served as of the date of revocation. However, the Department of Corrections (DOC) forfeited the 2000 days of gain time that Brown had earned during his original period of incarceration and did not apply the awarded credit to the gain time.¹

In his rule 3.800(a) motion, Brown raises two issues that, he argues, require his immediate release. Brown first argues, essentially, that because the time-served credit granted subsequent to the revocation proceeding should have been granted at revocation itself, his sentence as of revocation was zero; therefore, he should be released now. We note, however, that any error associated with the revocation court’s failure to award credit has already been corrected and that the awarded credit has apparently been applied by DOC. As such, no additional relief is available to Brown under rule 3.800(a). Instead, for Brown to challenge DOC’s authority to forfeit his gain time and continue to imprison him, he must file a petition for writ of habeas corpus in the

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circuit court in the county in which he is currently incarcerated.² See McCrae v. Wainwright, 439 So. 2d 868, 870 (Fla. 1983) (“The purpose of the . . . writ of habeas corpus is to inquire into the legality of a prisoner’s present detention.”); Bush v. State, 945 So. 2d 1207, 1213 n.11 (Fla. 2006) (“[A] habeas petition filed in circuit court alleging entitlement to immediate release `shall be filed with the clerk of the circuit court of the county in which the prisoner is detained.’ See § 79.09, Fla. Stat. (2005).”).

In his second issue, Brown argues that the failure of the revocation court to repronounce him an HFO made the post-revocation sentence illegal and that the court was required to impose, at most, the statutory maximum with appropriate time-served credit.³ We agree with the postconviction court’s conclusion that the revocation court’s sentence was not an HFO sentence. The court was permitted to sentence Brown for as many as fifteen years for the underlying second-degree felony, provided that the court granted credit for time served. See Poore v. State, 531 So. 2d 161, 164 (Fla. 1988). As already noted, a sentence of four and one-half years was imposed, and

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credit was granted in a subsequent postconviction proceeding. Because any error susceptible to rule 3.800(a) relief was corrected once credit was granted, as with Brown’s first issue we conclude that whatever relief may be available to Brown must be sought by a habeas petition, not a motion under rule 3.800(a).⁴

Affirmed.

SILBERMAN, J., and FULMER, CAROLYN K., SENIOR JUDGE, Concur.

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Notes:

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JEFFREY STEVEN BROWDER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-1296.

District Court of Appeal of Florida, Second District.

Opinion filed January 29, 2010.

Appeal from the Circuit Court for Hillsborough County, Robert A. Foster, Jr., Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Jeffrey Steven Browder challenges his judgments and sentences for one count of possession of a concealed weapon by a convicted felon and one count of

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obstructing or opposing an officer without violence. Browder pleaded guilty to the charges, specifically reserving his right to challenge the denial of his dispositive motion to dismiss the concealed weapon count. We reverse that conviction.

Browder, a convicted felon, was charged with carrying a concealed weapon—a folding knife—in violation of section 790.23(1), Florida Statutes (2008). Browder filed a motion to dismiss the charge pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), alleging that the knife he was carrying was a “common pocket knife” and thus legally exempt from the statutory definition of a weapon found in section 790.001(13). Browder’s undisputed assertions below that the blade of his knife was less than four inches long and that at the time of his arrest the knife was closed support his claim that the trial court should have granted his motion to dismiss the concealed weapon charge. See generally L.B. v. State, 700 So. 2d 370, 372 (Fla. 1997) (“[W]e can infer that the legislature’s intended definition of `common pocketknife’ [i]s: `A type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.’ “). “[T]he question at the motion to dismiss stage is not whether the State can obtain a conviction or even if the State can survive a motion for judgment of acquittal. Instead, the question is whether there are disputed facts and whether the undisputed facts establish a prima facie case.” State v. Gay, 960 So. 2d 864, 869 (Fla. 2d DCA 2007).

In his motion, Browder cited J.R.P. v State, 979 So. 2d 1178 (Fla. 3d DCA 2008). In that case, the Third District reversed the denial of a motion to dismiss a charge of carrying a concealed weapon, concluding that a knife that is folded closed and has a blade that is less than four inches long is a common pocketknife that does

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not satisfy the statutory definition of a weapon. At the hearing on Browder’s motion, the State presented no argument to contradict either the facts of the case or law presented by Browder. Additionally, there is nothing in the record to indicate that the State filed any written traverse to the motion or presented any additional facts that would bring the knife outside the definition of a common pocketknife.¹

Because the State failed to meet its burden to present any disputed or additional facts to weigh in determining whether the knife was a common pocketknife, we conclude that no genuine issue of material fact was before the trial court and that the motion to dismiss should have been granted. See State v. Taylor, 16 So. 3d 997, 998 (Fla. 5th DCA 2009) (“[A] motion to dismiss on the ground that there are no material disputed facts and that the undisputed facts fail to establish a prima facie case of guilt must be denied by the trial court if the State files a traverse that `with specificity’ denies under oath a material fact alleged in the motion. A general, conclusory[,] or speculative response by the prosecution in its traverse . . . is insufficient and constitutes an admission of the facts in question.” (citation omitted)); see also State v. Lewis, 463 So. 2d 561, 563 (Fla. 2d DCA 1985) (“In considering a (c)(4) motion the trial judge may not try or determine factual issues . . . in determining whether there exists a genuine issue of material fact.”). Accordingly, we reverse only Browder’s conviction for possession of a concealed weapon by a convicted felon and remand for the trial court to enter an

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order granting Browder’s motion to dismiss and an amended judgment and sentence reflecting the dismissal of that count. We affirm in all other respects.

Affirmed in part; reversed and remanded in part.

MORRIS, J., and FULMER, CAROLYN K., SENIOR JUDGE, Concur.

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

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Notes:

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

Case No. 5D08-2221

District Court of Appeal of Florida, Fifth District.

Opinion filed January 29, 2010

Appeal from the Circuit Court for Seminole County, Debra S. Nelson, Judge.

F. W. Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.

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

PALMER, J.

Brian Harvey (defendant) appeals his judgment and sentence which were entered by the trial court on his first-degree felony murder conviction. Determining that the trial court committed harmful error in refusing to give the defendant’s requested jury instruction, we reverse.

Mitchell Weiner was killed during the course of a robbery which occurred in connection with an attempted drug purchase. At trial, the State established that the defendant, along with two other men, discussed engaging in an alleged drug transaction with Weiner. The defendant testified that he attempted to arrange the drug transaction,

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but that he had no intention of participating in any robbery, and that the robbery and the murder of Weiner were both outside the original plan of selling marijuana.

The defendant requested an instruction on the independent act doctrine which arises

when one cofelon, who previously participated in a common plan, does not participate in the acts committed by his cofelon, `which fall outside of, and are foreign to, the common design of the original collaboration’ . . . . Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act . . . . Where, however, the defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate.

Ray v. State, 755 So.2d 608, 609 (Fla. 2000). The trial court denied this request.¹ The defendant argues that the trial court erred in so ruling. We agree.

“[W]here there is evidence from which a jury could determine the acts of the co-felon resulting in murder were independent from the underlying felony, a defendant is entitled to an independent act instruction.” McGee v. State, 792 So.2d 624, 626 (Fla. 4th DCA 2001) (citing Bryant v. State, 412 So.2d 347 (Fla. 1982)).

In Bryant, the victim was subjected to a burglary, a robbery, and a sexual battery. The Supreme Court concluded that, even though the defendant participated in the robbery, the jury could have concluded that his co-felons exceeded the scope of the original plan in committing the sexual battery. As such, the Court held that the defendant was entitled to receive an instruction on the independent act doctrine.

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Similarly, in Flemmings v. State, 838 So.2d 639 (Fla. 5th DCA 2003), the defendant was convicted of robbery and first-degree murder after his co-felon killed the robbery victim. The defendant argued that he was entitled to receive the independent act doctrine instruction because there was evidence adduced at trial which supported his contention that he did not know about the plan to rob the victim. This court held that, although the evidence at trial was sufficient to support the convictions, the trial court erred in refusing to give the instruction.

This case is factually similar to Flemmings. The defendant testified that he only intended to participate in the sale of marijuana, and that the robbery and resulting murder were independent acts of his co-felons. The defendant maintained that position during his police interviews and throughout the trial. Also, there was testimony by multiple witnesses, including witnesses for the State, that the defendant called looking for a pound of marijuana for Weiner. While the evidence presented was sufficient to convict the defendant as charged, evidence was presented which supported the defendant’s theory that the robbery, and thus the murder, were independent acts from the original plan to sell the marijuana. As such, an instruction on the independent act doctrine should have been given.

The State contends that, even if the trial court erred in refusing to give the requested instruction, it was harmless error. The burden is on the State to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986)(citing Chapman v. California, 386 U.S. 18, 24 (1967)). The State has not sustained this burden of proof.

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Accordingly, we reverse the defendant’s convictions and remand for a new trial.

REVERSED and REMANDED.

SAWAYA, J., concurs.

COHEN, J., concurs specially with opinion.

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Notes:

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COHEN, J., concurring specially.

I concur in the reversal. See Senior v. State, No. 5D09-144 (Fla. 5th DCA ____, 2010) (Cohen, J., concurring specially).

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ANTHONY N. WIDEMOND, SR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-4747.

District Court of Appeal of Florida, First District.

Opinion filed January 29, 2010.

An appeal from the Circuit Court for Duval County, L. P. Haddock, Judge.

Anthony N. Widemond, Sr., pro se, Appellant.

Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of

Page 2

grounds one and three of appellant’s motion without further discussion. However, for the reasons discussed below, we reverse and remand ground two.

In ground two, the appellant asserts that counsel was ineffective for failing to present to the court case law standing for the proposition that the trial court could impose his sentence concurrently to a future sentence the defendant would receive for violating his conditional release. It appears that his claim has merit as the trial court did in fact have the power to impose the sentence in this case concurrently to his conditional release sentence, and the record clearly demonstrates that the trial court would have imposed the sentences concurrently had it been aware of its authority to do so. In Richardson v. State, 947 So. 2d 1219 (Fla. 1st DCA 2007), a defendant filed a 3.850 motion asserting that counsel was ineffective for advising him that the trial court had no authority to run his sentence concurrently to a conditional-release sentence. Id. at 1220. The trial court agreed and stated that it could not order the sentences to run concurrently to each other. Id. This Court reversed, holding:

[T]he law is clear that a trial court may order a sentence to run concurrently or consecutively to a pending control-release violation. In fact, the trial court must exercise its discretion to order a sentence imposed for an offense committed while on community release concurrent or consecutive to his or her community release sentence and cannot defer the structure of the sentence to the Department of Corrections because the Department lacks such sentencing authority.

Page 3

Id. (citations omitted); see also Ford v. State, 975 So. 2d 1191 (Fla. 1st DCA 2008) (same). The Richardson court went on to hold that the appellant’s sentence was illegal. Richardson, 947 So. 2d at 1221. Because the appellant has alleged facially sufficient claims for ineffective assistance of counsel and an illegal sentence, we reverse and remand for the trial court to hold an evidentiary hearing or to impose the sentence in the instant case to be concurrent with the sentence imposed by DOC. See White v. State, 34 Fla. L. Weekly D1855 (Fla. 1st DCA Sept. 10, 2009).

REVERSED and REMANDED.

LEWIS, THOMAS and WETHERELL, JJ., CONCUR.

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

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STATE OF FLORIDA, Appellant,
v.
TIMOTHY CHARLES HUDSON, Appellee.

Case No. 1D09-3214.

District Court of Appeal of Florida, First District.

Opinion filed January 29, 2010.

An appeal from the Circuit Court for Columbia County, Julian E. Collins, Judge.

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

Jimmy E. Hunt, of Jimmy Hunt, P.L., Lake City, for Appellee.

HAWKES, C.J.

Defendant was charged with aggravated assault with a deadly weapon and moved to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) (2009). In the motion, defendant claimed he acted out of self defense and

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emphasized that the victim had recanted earlier statements given to the police. Although the State filed a traverse, the trial court granted the motion to dismiss, finding the material facts were not in dispute and the undisputed facts did not establish a prima facie case of guilt. On appeal, the State challenges the dismissal and claims the traverse created a material issue of fact. We agree and reverse the trial court’s order.

Rule 3.190(c)(4) permits a defendant to move to dismiss a charge when “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” To avoid dismissal under Rule 3.190(c)(4), the State must file a traverse denying under oath the material facts alleged in the motion to dismiss. See Fla. R. Crim. P. 3.190(d). In the traverse, the State is not required to pretry its case, only to present sufficient facts which, when viewed in a light most favorable to the State, show that a reasonable jury could find in its favor. See State v. Terma, 997 So. 2d 1174, 1177-78 (Fla. 3d DCA 2008) (stating the State is entitled to the most favorable construction of the facts possible); State v. Ortiz, 766 So. 2d 1137, 1141-42 (Fla. 3d DCA 2000) (stating that when considering a Rule 3.190(c)(4) motion, “the [S]tate is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant”).

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Here, in defendant’s motion to dismiss pursuant to Rule 3.190(c)(4), he alleged he had not threatened or shot at the victim with a firearm. Defendant claimed any action taken was in self defense to dissuade the victim, who was attempting to engage in a violent confrontation with him. He claimed any statements made by the victim to the contrary were fabrications and attached an affidavit from the victim in which she corroborated his version of events. However, the State’s traverse denied these allegations and identified a material issue of fact, namely that the victim had earlier stated the defendant had “shot a 9mm handgun at her twice [] and knocked her to the ground and held the gun to her head.” Viewing this allegation in a light most favorable to the State, the traverse created a dispute over material facts and the trial court erred in granting the motion to dismiss. See State v. Fetherolf, 388 So. 2d 38, 39 (Fla. 5th DCA 1980) (finding a motion to dismiss should have been denied when the State’s traverse contained prior statements by the victim which contradicted material allegations in the motion, despite the fact that the victim had recanted those prior statements).

We REVERSE the trial court’s order granting the motion to dismiss and REMAND for further proceedings consistent with this opinion.

ROBERTS and CLARK, JJ., CONCUR.

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

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DUANE L. BARTEE, A/K/A DONALD BOURDEAU, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-2444.

District Court of Appeal of Florida, Fifth District.

Opinion filed January 29, 2010.

3.800 Appeal from the Circuit Court for Orange County, John H. Adams, Sr., Judge.

Duane L. Bartee, Raiford, pro se.

No Appearance for Appellee.

PALMER, J.

Duane L. Bartee (defendant) appeals the trial court’s order summarily denying his motion to correct sentence, filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. Although the defendant raises several claims for relief in his motion, only one merits discussion.

The defendant was sentenced as a habitual felony offender (HFO) and a prison releasee reoffender (PRR), on his conviction for aggravated assault with a deadly weapon on a law enforcement officer, to a term of thirty years’ incarceration. Although there is no double jeopardy violation in sentencing a person both as an HFO and PRR for a single conviction, the PRR term of incarceration acts as a minimum mandatory

Page 2

term and, under the PRR statute, it must be less than the overall HFO sentence. See Grant v. State, 770 So.2d 655 (Fla. 2000). See also Michel v. State, 935 So.2d 1228 (Fla. 5th DCA 2006)(reversing an order denying the defendant’s rule 3.800(a) motion because the defendant was sentenced as an HFO and a PRR but did not receive a greater HFO term of incarceration). As such, the defendant’s thirty-year sentence is improper.

The order denying the defendant’s rule 3.800(a) motion is reversed in part. The case is remanded to the trial court to impose a fifteen-year PRR term of incarceration if the aggravated assault on a law enforcement officer conviction is a second-degree felony. If the felony was reclassified to a first-degree felony, then the thirty-year mandatory PRR sentence shall remain in effect, but the thirty-year HFO sentence must be vacated. Cf. Michel v. State, 935 So.2d 1228 (Fla. 5th DCA 2006).¹

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA and TORPY, JJ., concur.

—————

Notes:

—————

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MICHAEL CAMPBELL, Appellant/Cross-Appellee,
v.
STATE OF FLORIDA, Appellee/Cross-Appellant.

Case No. 1D08-0601.

Case No. 1D08-0870.

District Court of Appeal of Florida, First District.

Opinion filed January 29, 2010.

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

Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Office of the Attorney General, Tallahassee; William N. Meggs, State Attorney, Office of the State Attorney, Tallahassee, for State of Florida.

Nancy A. Daniels, Public Defender, Kathleen Stover, Assistant Public Defender, and Joel T. Remland, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Michael Campbell.

Page 2

PER CURIAM.

The defendant, Michael Campbell, appeals from his conviction of burglary of a dwelling with a person assaulted and simple battery. The State has cross-appealed, arguing that the trial court incorrectly concluded that the Prison Releasee Reoffender (PRR) Act did not require that the defendant receive a life sentence for the burglary conviction. We find no merit in the defendant’s jury instruction issue raised on direct appeal, but we reverse and remand on the PRR issue raised on cross-appeal.

Campbell was charged with two counts of sexual battery with a deadly weapon on a person twelve years of age or older, in violation of sections 784.03(2), 775.087, 794.011(3) and (4)(b), and 794.0115(2)(a), Florida Statutes; one count of burglary of a dwelling with a person assaulted, in violation of sections 784.03(2) and 810.02(2)(a) and (b), Florida Statutes; and one count of aggravated battery with a deadly weapon causing great bodily harm, in violation of sections 784.03(2), 784.045(1)(a)1 and 2, and 775.087, Florida Statutes.

The State alleged that the defendant accosted the victim as she was exiting her apartment, pushed her inside, and attacked and sexually assaulted her. The burglary count alleged in pertinent part that the defendant “did unlawfully enter or remain in [the victim's dwelling] with intent to commit the offense of sexual

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assault, assault, and/or battery or some offense therein, and in the course of committing the offense: did make an assault or battery upon a person, [the victim], and/or became armed within the structure with a dangerous weapon.” The jury found the defendant guilty as charged of burglary of a dwelling with person assaulted. It acquitted him on the two counts of sexual battery but found him guilty of the lesser included offense of battery.

At the sentencing hearing, the defendant argued that he was subject only to a fifteen-year sentence under the PRR Act, based on the Fourth District’s opinion in Tumblin v. State, 965 So. 2d 354 (Fla. 4th DCA 2007). He argued that, although burglary of a dwelling qualifies for PRR sentencing, the enhancement based on assault or battery does not qualify under Tumblin and State v. Hearns, 961 So. 2d 211 (Fla. 2007). Therefore, he contended, the only PRR sentence that could be imposed was fifteen years for burglary of a dwelling, but not for burglary of a dwelling with an assault or battery.

The State countered that the PRR statute specifically includes burglary of a dwelling as a qualifying offense, and burglary of a dwelling with a person assaulted is a type of burglary of a dwelling. Therefore, the State maintained, the defendant should be subject to a life PRR sentence.

Page 4

The trial court agreed with the defendant that burglary of a dwelling with a person assaulted was not a qualifying offense under the PRR statute, because it was not specifically listed in the statute. It further found that, under the reasoning expressed in Hearns, the offense did not meet the definition of a forcible felony under the catch-all provision of the statute. Therefore, the court concluded that it was required to sentence the defendant as a PRR to only fifteen years on the burglary charge. On the felony battery count, the trial court imposed a concurrent five-year sentence.

The PRR statute in effect at the time of the defendant’s offense, section 775.082, Florida Statutes (2005), provides in pertinent part:

(9)(a) 1. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:

. . .

o. Any felony that involves the use or threat of physical force or violence against an individual;

p. Armed burglary;

q. Burglary of a dwelling or burglary of an unoccupied structure;

. . .

within 3 years after being released from a state correctional facility . . . following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.

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§775.082(9)(a)(1)(o)-(q), Fla. Stat. (2005) (emphasis added).

Subsection 775.082(9)(a)(1)(o), which provides that forcible felonies qualify as PRR offenses, is sometimes referred to as the “catch-all provision.” As explained below, although there has been some focus in the case law on the fact that burglary of a dwelling with an assault or battery is not a forcible felony under this provision, there is actually no need to resort to the catch-all provision in determining whether this crime is a qualifying PRR offense.

The first rule of statutory construction is to consider the plain meaning of statute. See Borden v. East-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006). If the statute is clear and unambiguous, “courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Borden at 595 (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005)).

As set forth above, the PRR statute expressly lists burglary of a dwelling as a qualifying offense for PRR sentencing. See §775.082(9)(a)(1)(q), Fla. Stat. (2006). It further provides that the sentencing court must look to the degree of the qualifying offense to determine the length of PRR sentence. See §775.082(9)(a)(3), Fla. Stat. (2006). For a first-degree felony punishable by life, such as burglary of a dwelling with an assault, the PRR statute provides that the

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defendant must be sentenced to a term of life imprisonment. See §§775.082(9)(b) and 810.02(2)(a), Fla. Stat.

The burglary statute provides,

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:

(a) Makes an assault or battery upon any person . . .

§810.02(2)(a), Fla. Stat.

Reading subsections (9)(a)(1)(q) and (9)(a)(3) of the PRR statute together with subsection (2)(a) of the burglary statute, and giving them their plain meaning, reveals that burglary of a dwelling with an assault or battery is punishable by a life sentence under the PRR statute.

This conclusion is supported not only by the plain language of the applicable statutes, but also by the basic principle that a court should not interpret a statute in such a way is to yield an illogical result. The defendant does not deny that the PRR statute specifically lists burglary of a dwelling as a qualifying offense for enhancing a sentence. Nonetheless, he urges this Court to construe it in a way that excludes the greater offense of burglary of a dwelling with an assault or battery. The latter is a more serious crime than the former. It would be illogical to construe

Page 7

the PRR statute in a way that allows an enhanced sentence for simple burglary of a dwelling, but not for a greater degree of that same crime.

Burglary of a dwelling is an enumerated offense. Burglary of a dwelling with an assault or battery is simply a greater degree of burglary. The legislature acknowledged in subsection 775.082(9)(a)(3) that varying degrees of qualifying offenses may exist and, accordingly, it provided for varying sentences in that subsection. Burglary of a dwelling with an assault or battery falls squarely within this statutory scheme. As the Fifth District observed in Souza v. State, 889 So. 2d 952, 956 (Fla. 5th DCA 2004),

… [A] number of the crimes listed in the PRR Act as qualifying offenses are described in their broadest sense. Murder, for example, is listed as one of the qualifying offenses. There are, of course, several degrees of murder and a number of different methods of committing that crime set forth in the statutes, yet the PRR Act does not differentiate, for example between second and third degree murder. See § 782.04, Florida Statutes (2003). It simply says, murder. That the description of murder is generic does not prevent a defendant from being sentenced as a prison releasee reoffender for having committed that offense. See e.g., Miller v. State, 772 So. 2d 611 (Fla. 1st DCA 2000).

Souza, 889 So. 2d at 956.

Applying this logic, the Souza court held that DUI manslaughter is a qualifying PRR offense, because it is a varying degree of the enumerated offense of manslaughter. The same analysis applies here. Burglary of a dwelling is one of

Page 8

the qualifying offenses, described in its broadest sense in the statute. Thus burglary of a dwelling with an assault or battery is simply a more serious version of the enumerated offense.

The defendant relies on Tumblin and Gorham v. State, 988 So. 2d 152 (Fla. 4th DCA 2008). As in the present case, Tumblin was convicted of burglary of a dwelling with an assault or battery. Tumblin argued in a 3.800(a) motion that his PRR sentence was illegal, based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and State v. Overfelt, 457 So. 2d 1385 (Fla. 1984), because the facts required to support the enhanced sentence were not submitted to the jury. The jury did not make a specific finding that the dwelling was occupied.

The Tumblin court pointed out that the defendant’s crime in that case was committed before the PRR statute was amended in response to State v. Huggins, 802 So. 2d 276 (Fla. 2001) to include burglary of an unoccupied dwelling. See Tumblin, 965 So. 2d at 355. The trial court there concluded that there was no need for the jury to find that the place burglarized was an occupied dwelling, because the catch-all provision of the PRR statute for forcible felonies applied. The Fourth District therefore analyzed whether the offense qualified as a forcible felony under the catch-all provision. It looked to the Hearns case to hold that it was error for Tumblin to be sentenced as a PRR, where the jury failed to make a finding that the

Page 9

dwelling was occupied. It observed that only burglary of a dwelling was a qualifying PRR offense.

Tumblin is inapposite here, because the presence of burglary of a dwelling as an enumerated qualifying offense makes it unnecessary to engage in an analysis of whether burglary of a dwelling with an assault is a forcible felony under the catch-all provision. While the crime may not be a forcible felony, it is a greater degree of a specifically listed qualifying offense. Therefore, it is itself a qualifying offense under the PRR statute.

Gorham v. State is likewise inapposite. Gorham was convicted of burglary of a conveyance with assault or battery. The Gorham court held that it was error to sentence the defendant as a PRR for that crime, because burglary of a conveyance was not an enumerated offense, and burglary of a conveyance with an assault or battery could not qualify under the catch-all provision, under the supreme court’s ruling in Hearns. The Fourth District noted in Gorham that the PRR statute explicitly named only burglary of a dwelling, burglary of an occupied structure, and armed burglary as qualifying offenses, but not burglary of a conveyance. Because the legislature excluded this specific offense, the court concluded that it did not intend to include it, under the tenet of statutory construction, expressio

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unius est exclusio alterius. See Gorham, 988 So. 2d at 154. As with Tumblin, the analysis and offense at issue in Gorham make it inapposite here.

Gorham and a number of other cases refer to the analysis in State v. Hearns. The supreme court in Hearns held that assault and battery do not qualify as forcible felonies under the catch-all provision of the PRR statute. However, to determine whether burglary of a dwelling with an assault or battery qualifies as a PRR offense, there is no need to resort to the catch-all forcible felony provision, or to look to the Hearns analysis, because burglary of a dwelling is an expressly enumerated offense in subsection (9)(a)(1)(q) of the statute.

We acknowledge that the defendant’s argument is supported by the language of the opinion in Williams v. State, 2 So. 3d 984 (Fla. 2d DCA 2008). There the court stated that the defendant could not receive a life sentence under the PRR statute for burglary of a dwelling with a person assaulted, because the crime did not fall within the catch-all provision for forcible felonies. However, it is important to note that the court in Williams did not reverse the defendant’s conviction, because the alleged sentencing error was not preserved. Instead, the court affirmed without prejudice to the defendant’s right to file an appropriate postconviction motion. See Williams, 2 So. 3d at 984. If the court had decided the issue on the merits it might have considered the fact that burglary of a dwelling is

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an enumerated offense.¹ For all these reasons, we conclude that the trial court erred in sentencing the defendant to only 15 years for burglary of a dwelling with an assault. Therefore, we reverse and remand for resentencing as to this issue. On remand, the trial court is instructed to sentence the defendant as a prison releasee reoffender to a sentence of life imprisonment on the burglary count. We find no merit to the issue the defendant raises on direct appeal and therefore we affirm as to that issue.

Affirmed in part and reversed in part.

VAN NORTWICK, PADOVANO, and ROWE, JJ., CONCUR.

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

—————

Notes:

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