Florida Criminal Law Opinions

DAVID COOPER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3407.

District Court of Appeal of Florida, Fourth District.

January 27, 2010.

Page 2

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy III, Judge; L.T. Case No. 08-138CF10A.

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

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

LEVINE, J.

Appellant appeals his conviction for failure of a sex offender to provide truthful or accurate information regarding his address, claiming the trial court erred in denying his motion to suppress his confession. The issue presented is whether the detective’s question to appellant was likely to elicit an incriminating response and, therefore, required the administration of Miranda warnings. We answer the question in the affirmative and reverse.

Appellant was required as a convicted sex offender to register his home address with law enforcement in 2006 and 2007. The address appellant provided was 1698 Blount Road, the address for a local church, Saint Lawrence Chapel. In December 2007, a detective went to the listed address to confirm if appellant, in fact, lived at that address. The detective spoke to the assistant executive director of the chapel who said that although she recalled receiving mail for appellant, she returned the mail and never saw appellant. Saint Lawrence Chapel is a daytime homeless shelter, without sleeping arrangements, open only from 8:30 a.m. to 3:30 p.m.

The detective went next door to the Broward Outreach Center, which provides temporary residential housing for the homeless. The director confirmed that appellant never resided at the center.

Shortly after the detective’s visit, appellant came to Saint Lawrence Chapel to collect his mail. Appellant was subsequently arrested and convicted of two counts of failure of a sexual offender to provide truthful

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or accurate information concerning his address.

During trial, appellant objected to the admission of his statement since it was elicited without Miranda warnings. Following appellant’s arrest, the detective asked appellant, “Would you like to make a post-Miranda statement?” Appellant, in response, asked what the criminal charges were, and the detective told him. At that point, before Miranda warnings were given, appellant admitted that he never lived at the shelter and that he only received his mail there. The trial court denied the motion to suppress, finding that the statements were not a result of any law enforcement interrogation.

A trial court’s ruling on a motion to suppress is presumed correct, and the appellate court must interpret the evidence and reasonable inferences in a manner most favorable to sustaining the trial court’s ruling. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). We defer to the trial court’s factual findings that are supported by competent, substantial evidence, while we review legal issues de novo. Id.

Miranda warnings are required only when the individual is in custody and subject to interrogation. Timmons v. State, 961 So. 2d 378, 379 (Fla. 4th DCA 2007); see also Rhode Island v. Innis, 446 U.S. 291, 300 (1980) (“[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”).

The United States Supreme Court in Innis explained in detail the concept of interrogation:

[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.

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Id. at 301 (footnotes omitted).

Case law is replete with examples of where a statement made by a law enforcement officer to the suspect, without benefit of Miranda warnings, is a type of interrogation prohibited by Innis. Where the agent made a specific reference to “how much trouble you are in,” that reference amounted to an interrogation requiring administration of Miranda. State v. Lebron, 979 So. 2d 1093, 1095 (Fla. 3d DCA 2008). Where the law enforcement officer mentioned to the suspect that he was “looking at twenty-five years” for his involvement in the case, the officer’s statements “were reasonably likely to elicit an incriminating response from [the defendant].” Larson v. State, 753 So. 2d 733, 734-35 (Fla. 2d DCA 2000). Since the defendant was not advised of his right against selfincrimination and the right to counsel, Miranda prohibited the use of the defendant’s statements. Id. at 734.

Where the defendant invokes his right to silence after being advised of his Miranda warnings, a statement by the law enforcement officer directed to the defendant could constitute improper interrogation. In Origi v. State, 912 So. 2d 69, 70 (Fla. 4th DCA 2005), the trooper said to the defendant, after his invocation of rights, “That’s a lot of drugs you had.” We held that this statement directed to the defendant was clearly the “functional equivalent of interrogation.” Id. at 73. We also found the nature of the statement to be “accusatory” and “reasonably likely to elicit an incriminating response.” Id.

In Pirzadeh v. State, 854 So. 2d 740, 742 (Fla. 5th DCA 2003), where the defendant invoked his right to counsel after being informed of his Miranda rights, the court found that the officer notifying the defendant of the crimes charged, possible sentence, and lack of bond was the “functional equivalent” of an interrogation likely “to elicit an incriminating response from the defendant.” “Once the detective told [the defendant] about the nature of the charges against him, he should have terminated the confrontation as it became clear that continuing the conversation would lead to an incriminating response.” Id. at 742-43.

In the present case, asking appellant to make a “post-Miranda” statement, without the benefit of the Miranda warnings, is the type of questioning likely to elicit an incriminating response. Such questioning, without warning, is prohibited by Innis and Miranda itself. As Chief Justice Rehnquist stated in Dickerson v. United States, 530 U.S. 428, 443 (2000), “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” As

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such, we find that the detective erred by failing to give Miranda warnings prior to his questioning of appellant.

Finally, we are asked to affirm on the basis of harmless error. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” State v. DiGuilo, 491 So. 2d 1129, 1139 (Fla. 1986). In this case, although there was evidence from the associate director of the chapel and the director of the outreach center that appellant did not live at the listed premises, there was other, somewhat conflicting evidence that appellant received his mail at the premises and had just recently come there to retrieve mail. In the end, it was appellant’s unequivocal admission that he did not live at the shelter that dominated the evidence presented. Because the question is whether “there is a reasonable possibility that the error affected the verdict,” we cannot say that the defendant’s admission did not affect the verdict. Id.

For the foregoing reasons, we find the error was not harmless and we reverse and remand.

Reversed.

WARNER and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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ADAM MORRIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-1800.

District Court of Appeal of Florida, Fourth District.

January 27, 2010.

Page 2

Appeal of order denying rule 3.800 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert Belanger, Judge; L.T. Case No. 562004CF002594A.

Adam Morris, Sneads, pro se.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The trial court’s attempt to fashion an appropriate sentence for a substance abusing offender is questioned in this appeal. After entering a plea, the defendant appeals the denial of his Rule 3.800(a) motion, challenging the legality of his sentence to drug offender probation. He argues that the trial court erred in sentencing him to drug offender probation for non-drug charges. Legally, he is correct, which requires us to reverse. However, recent changes in the drug offender probation statute will now eliminate this issue in the future.

The defendant entered a negotiated plea, on charges of grand theft, and burglary of a conveyance. The State agreed to dismiss two other charges. The sentence was left open. At the plea hearing, the court advised the defendant he could receive up to 20 years in prison and/or probation. He was not specifically advised that the court could impose drug offender probation; and the defendant did not expressly agree to drug offender probation or placement in a drug treatment facility.

At the sentencing hearing, the defendant’s mother expressed her concerns about “the terrible nature of [the defendant's] drug addiction” and how it has affected her and the defendant’s twelve-year-old daughter. The court asked whether the defendant had ever received treatment for his drug addiction and his mother indicated that he had been in and out of programs, but nothing had helped. Defense counsel acknowledged the defendant’s need for residential treatment.

The trial court found that the defendant’s crimes were related to his

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drug addiction and sentenced him to five years in prison, followed by two years community control and two years drug offender probation. As a condition of drug offender probation, the defendant was to be placed in Avon Park Correctional Institution or other facility that provided a drug treatment program.

The defendant filed neither a direct appeal nor a Rule 3.850 motion. He did file, however, a Rule 3.800(a) motion, arguing that the court illegally imposed drug offender probation for crimes other than those enumerated under the drug offender probation statute. See § 948.034, Florida Statutes (2008). The trial court denied the defendant’s motion based on the State’s response.

The defendant’s extensive record, his mother’s testimony concerning his substance abuse, and his counsel’s recognition of the problem all led the trial court to fashion a sentence to not only rehabilitate the defendant, but enhance public safety by preventing further criminal activity. Yet, the existing statutory scheme did not allow for this sentence. Prior to July, 2009, placement on drug offender probation was restricted to those crimes enumerated in section 948.034.¹ See Beals v. State, 14 So. 3d 286, 287 (Fla. 4th DCA 2009). The defendant was not charged with one of the enumerated crimes.

For this reason, we must reverse the denial of the defendant’s Rule 3.800(a) motion and remand the case to the trial court for resentencing. This does not preclude the trial court from fashioning a sentence that will require substance abuse treatment as a special condition to probation since the record reflects the connection between the commission of the crimes and the defendant’s substance use. Id.

Reverse and Remand.

POLEN and GERBER, JJ., concur.

Page 4

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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STATE OF FLORIDA, Appellant,
v.
JANET THOMAS, Appellee.

No. 4D08-4080.

District Court of Appeal of Florida, Fourth District.

January 27, 2010.

Page 2

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Pedro E. Dijols, Judge; L.T. Case No. 03-16461CF10A.

Bill McCollum, Attorney General, Tallahassee, James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellant.

Reginald A. Mathis of The Law Office of Reginald A. Mathis, LLC, Fort Lauderdale, for appellee.

GROSS, C.J.

We affirm the circuit court’s dismissal of this case on the ground that the statute of limitations had run.

By an information filed on October 1, 2003, appellant was charged with grand theft. According to the probable cause affidavit, the offenses occurred before April 26, 2003. Appellant was not arrested until May, 2008.

Prosecution for grand theft must be commenced “within 5 years after the cause of action accrues.” § 812.035(10), Fla. Stat. (2003). Here, the grand theft “accrued” when every element occurred, no later than April 26, 2003. See § 775.15(4), Fla. Stat. (2003). The statute of limitations began to run on April 27, 2003. See id. Where a defendant is not arrested prior to the filing of the information, a prosecution commences when an information is filed, provided that the “information is executed without unreasonable delay.” § 775.15(5)(b), Fla. Stat. (2003). Thus, a prosecution has not “commenced” under the statute until the state has executed the capias without unreasonable delay. See Soto v. State, 982 So. 2d 1290, 1291 (Fla. 4th DCA 2008). “[I]nability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered” in determining what is a reasonable delay. Id.; see § 775.15(5)(b), Fla. Stat. (2003); Williams v. State, 913 So. 2d 760, 761 (Fla. 4th DCA 2005).

Here, appellant was arrested over five years after the cause of action accrued. The only testimony at the hearing below was that appellant

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was continuously available in Florida since 2003. The state offered no testimony to explain this unreasonable delay. See Williams, 913 So. 2d at 761-62.

Affirmed.

WARNER and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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STATE OF FLORIDA, Appellant,
v.
V.S., a child, Appellee.

No. 4D09-2653.

District Court of Appeal of Florida, Fourth District.

January 27, 2010.

Page 2

Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Merrilee Ehrlich, Judge; L.T. Case No. 08-5764.

Bill McCollum, Attorney General, Tallahassee, and Anthony Calvello, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Georgina Jimenez-Orosa, Assistant Public Defender, West Palm Beach, for appellee.

PER CURIAM.

The state appeals the trial court’s order suppressing drugs found in V.S.’s purse. The issue the parties address on appeal is whether the father could consent to a search of V.S.’s purse. In State v. S.B., 758 So. 2d 1253 (Fla. 4th DCA 2000), we held that a parent had authority to consent to a search of a child’s room by police officers, over the child’s objection, when confronted with information indicating that the child was selling drugs and stolen weapons from the house. The initial factual question in this case, however, is whether the father consented to a search at all, and we must interpret the facts in a light most favorable to the appellee. The trial court did not make a specific finding that the father actually consented to a search. A deputy testified that V.S.’s father gave permission to search her room, yet that same deputy said that the purse was not found in the room but was opened by the father who gave the drugs to the deputy upon their arrival at the house. The trial court found this deputy’s testimony not to be credible. A second deputy did not testify that anyone gave consent to a search but testified that the purse was found in the child’s room in a drawer. The father did not testify. On these widely divergent facts, we cannot conclude that the trial court erred in suppressing the evidence.

Affirmed.

GROSS, C.J., WARNER and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Troy Coveny, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-2303.

District Court of Appeal of Florida, Third District.

Opinion filed January 27, 2010.

An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge, Lower Tribunal No. 07-583.

Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

Because the trial court was, to say the least, free to reject the defendant’s dubious explanation¹ for not reporting to the probation office as ordered, Adams v.

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State, 979 So. 2d 921, 928 (Fla. 2008) (“The trial court was well within its discretion in rejecting [a defendant's] excuse as unpersuasive”), the order revoking his probation on the ground that he willfully did not report is affirmed. See Carter v. State, 835 So. 2d 259 (Fla. 2002). The provision of the order stating that a basis for revocation was violating condition 5 was entered in error and is vacated.

Affirmed as amended.

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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Reginald Montgomery, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-1859.

District Court of Appeal of Florida, Third District.

Opinion filed January 27, 2010.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Bertila Soto, Judge, Lower Tribunal No. 07-37347-B.

Reginald Montgomery, in proper person.

Bill McCollum, Attorney General, for appellee.

Before GERSTEN and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800. On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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STATE OF FLORIDA, Appellant,
v.
MONT BEAN, Appellee.

Case No. 2D08-5542.

District Court of Appeal of Florida, Second District.

Opinion filed January 22, 2010.

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

Bill McCollum, Attorney General, Tallahassee, Helene S. Parnes and Sarah Macks, Assistant Attorneys General, Tampa, for Appellant.

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

ALTENBERND, Judge.

The State charged Mont Bean in one information with trafficking in oxycodone and in another information with multiple counts of obtaining drugs from a physician by withholding information. He filed motions to suppress the evidence

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obtained from a pharmacy and other medical sources. The trial court granted these motions and the State appealed. We reverse and remand for further proceedings.

This suppression proceeding is unusual in several respects. The trial court had considered a similar motion to suppress in another case a few days before the hearing on these motions. The trial court believed that the ruling in the earlier case controlled in this case. As a result, the trial court allowed only limited arguments and required the parties to provide brief stipulations about the facts instead of requiring the parties to present the usual evidentiary hearing. The case that the trial court heard a few days earlier, State v. Fernandez, 2D08-5548, was appealed to this court. A separate panel of judges has reversed that order. We likewise reverse this order.

As explained below, this court concludes that the suppression issue presented to the trial court is more nuanced than the parties and the trial court realized. At least for some of the evidence that Mr. Bean wishes to suppress, his legal reasoning is based on factual assumptions that are clearly not supported by the evidence in this case. Both sides are seeking broader holdings from this court than the circumstances of the case warrant. We conclude that it is better to reverse on narrow procedural grounds without prejudice to the parties’ rights to pursue these complex issues at a more complete hearing on remand.

I. The Facts as Best as They Can Be Divined from this Record

From our limited record, it appears that the State claims that Mr. Bean went to a pharmacy inside a grocery store in Tampa, Florida. He presented the pharmacist with a “prescription” for 180 oxycodone tablets. The prescription appeared to be signed by a local doctor, but the pharmacist was suspicious about the authenticity

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of the signature. The pharmacist was unable to reach the doctor and decided to fill the prescription. After he had given Mr. Bean the tablets, he talked to someone in the doctor’s office and was informed that the doctor had not signed such a prescription for Mr. Bean.

The pharmacist called the Tampa Police Department and reported a possible crime. The police sent a detective to the pharmacy. The pharmacist voluntarily provided the detective with the allegedly forged prescription and positively identified Mr. Bean from a photograph. The evidence obtained in this part of the investigation was obtained without a subpoena or a warrant and resulted in the first information charging Mr. Bean with trafficking in oxycodone.

The detective continued with his investigation, checking with various medical clinics and pharmacies in the neighborhood. Our record provides very limited information about this additional investigation, but it appears that additional evidence was obtained without a warrant or subpoena. That evidence resulted in the second information, charging Mr. Bean with multiple counts of obtaining drugs from a physician by withholding information. It is worth emphasizing that Mr. Bean has merely been charged with these offenses and is presumed innocent at this time.

II. Difficulties with Mr. Bean’s Theory

After the informations were filed, Mr. Bean moved to suppress the evidence obtained from the pharmacy in the grocery store and the evidence obtained from other medical sources. Both motions claim that the evidence was obtained in violation of section 456.057(7)(a)(3), Florida Statutes (2006). Section 456.057 regulates

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“health care practioner[s]” who have “[o]wnership and control of patient records.” Subsection (7) states:

Except as otherwise provided [], . . . records may not be furnished to . . . any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:

. . . .

3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

It is Mr. Bean’s theory that the detective’s investigation prior to his arrest and prior to the filing of the information could be undertaken only with the aid of a subpoena issued by a court of competent jurisdiction and with proper notice to him. Interestingly, neither motion claims that the evidence was obtained in violation of the Fourth Amendment or that it was obtained without a warrant. Mr. Bean is arguing that the evidence must be suppressed because the pharmacist volunteered the evidence to the detective in violation of a statute that he alleges regulates the pharmacist.

We note that, at least as it relates to the allegedly forged prescription obtained from the pharmacist at the grocery store, a forged prescription is not a real medical record; it is a forged document. Moreover, pharmacists are expressly excluded from the definition of “health care practitioner,” although they may be regulated as maintainers of records under this regulatory statute. See § 456.057(2)(b). Thus, there are substantial questions about the theory for suppression that Mr. Bean presents in his

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written motion, but these are not the questions raised by the State at the suppression hearing.

At the hearing and on appeal, Mr. Bean has not extensively argued his theory under section 456.057. Instead, he argues a similar theory under section 395.3025, Florida Statutes (2006). That statute requires a “licensed facility” to maintain the confidentiality of patient records and to provide them in a criminal action only upon the issuance of a subpoena. A pharmacy inside a grocery store does not appear to be licensed under chapter 395 because it is not a “hospital, ambulatory surgical center, or mobile surgical facility.” § 395.002(17).

Finally, Mr. Bean’s motion did not expressly raise a constitutional violation under the Fourth Amendment or under Article I, sections 12 or 23, of the Florida Constitution. At least as to the allegedly forged prescription given to the detective at the pharmacy in the grocery store, this omission is logical because there is no evidence that the detective searched anyone or seized anything; the pharmacist who called police to report this possible crime appears to have willingly, if not eagerly, given the document to the detective.

Section 456.057 does not contain a statutory exclusionary rule. Cf. 934.03, Fla. Stat. (2006) (excluding wiretap recordings obtained in violation of chapter 934). It appears likely that Mr. Bean has shifted his analysis to section 395.3025 because of the supreme court’s decision in State v. Johnson, 814 So. 2d 390 (Fla. 2002), which discussed the application of the exclusionary rule to a statutory violation of section 395.3025.

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In Johnson, the court considered a case in which the State used an investigative subpoena to compel a hospital to provide blood alcohol records for use in a DUI manslaughter case. Id. at 392-93. We are not entirely convinced that the circumstances in Johnson equate with a pharmacist’s voluntarily giving a piece of paper to a detective that the pharmacist believes to be a forged prescription. We do not have enough information in our record to know how Johnson might apply to the records obtained in the second half of the investigation in this case. Moreover, Johnson actually held that the blood alcohol records would be admissible if the State failed to comply with the statute in good faith. Id. at 394. Good faith was not an issue considered by the trial court in this case.

Finally, the Johnson opinion was a per curiam opinion in which Justice Pariente added a concurring opinion and three justices concurred in result only. Id. Given more recent discussions in the U.S. Supreme Court suggesting limitations on the exclusionary rule,¹ and the constitutional connection between Article 12 and the Fourth Amendment, we cannot tell from this record how a Florida court might now be required to rule on the issue of the use of the exclusionary rule in a case such as this one.

III. Difficulties with the State’s Theory

The State has not addressed many of the concerns that this court has raised in the preceding section. Instead, it primarily makes two arguments, neither of which is entirely satisfactory to this court. First, it argues that Mr. Bean lacks “standing”

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to make these arguments. It maintains that he has no expectation of privacy or possessory interest in forged documents. The threshold problem with this argument is that the trial court did not find and was not asked to determine whether some or all of these records were forged. Even though everyone discussed the likelihood that the first prescription was not a real medical record, the significance of that possibility seemed to evade everyone at the abbreviated suppression hearing.

Second, the State argues that the statutes relied upon by Mr. Bean are trumped by the authority given to the State in section 893.07. That statute generally requires every person who engages in the dispensing of controlled substances to keep records “available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” § 893.07(4). The State claims that this statute gives the police the right, without any suspicion whatsoever and without a warrant or subpoena, to peruse the records of any pharmacy, examining the records of any and all clients, for evidence that someone may have obtained an illegal prescription for a controlled substance. Suffice it to say, this interpretation of the statute gives us pause.

The fact that the legislature requires pharmacies to keep records available for review and copying should obviously reduce a person’s expectation of privacy about prescriptions that are filled at pharmacies. In Gettel v. State, 449 So. 2d 413, 414 (Fla. 2d DCA 1984), we held in a postconviction proceeding that a lawyer for a pharmacist was not ineffective when the lawyer did not file a motion to suppress evidence of forged prescriptions. In that case, the evidence was used against the pharmacist in possession of the prescriptions and not against a customer/patient. Id. Nevertheless,

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the duty of the pharmacist to maintain such records for review by law enforcement does not necessarily mean that law enforcement can review and copy all such records without suspicion, a warrant, or a subpoena for use in any type of legal proceeding. We have no need to reach this issue today, and we expressly do not reach this issue.²

IV. Our Narrow Ruling

The order on appeal recites that the detective “obtained Defendant’s prescriptions from a pharmacy” and makes what is probably a mixed finding of fact and law that the documents sought to be suppressed are “confidential patient records.” There is no evidence or stipulation in this record to support those determinations, and what little evidence is in the record contradicts these findings. Virtually all remaining aspects of the order collapse due to this error.

Moreover, the order purports to make rulings under the Fourth Amendment and Article I, section 12, of the Florida Constitution when those issues were not raised in Mr. Bean’s motion. It relies extensively on section 395.3025 when there is no factual basis to determine that any licensed hospital was involved in this case and that statute was not alleged as a basis for suppression. Finally, while admitting that no constitutional issue had been raised in the motion to suppress, the order makes a determination that section 893.07(4) is “overly broad” and at least implies that it is unconstitutional when that issue was not before the court.

This is not a typical suppression case in which a seizure is made without a warrant and the State has the burden to prove that it had constitutional authority to

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make a warrantless search and seizure. See, e.g., Riggs v. State, 918 So. 2d 274 (Fla. 2005) (finding that the State proved exigent circumstances existed to justify warrantless entry and search of defendant’s home); Smith v. State, 753 So. 2d 713 (Fla. 2d DCA 2000) (finding that the State failed to meet its burden of proving defendant consented to warrantless search of his mouth). In this case, Mr. Bean maintains that the pharmacist or the State violated section 456.057(7)(a)(3) and that this statutory violation justified the exclusion of the evidence. We conclude that he has the initial burden to prove the application of this statute and he has failed in that burden.

Given the abbreviated nature of the hearing on the motion to suppress and the incorrect assumption of the trial court that it could resolve this matter without a full hearing, we reverse the order on appeal without prejudice to further proceedings addressing the possible suppression of this evidence.

Reversed and remanded for further proceedings.

VILLANTI 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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SIDNEY DAVIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-2630.

District Court of Appeal of Florida, Second District.

Opinion filed January 22, 2010.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County, Susan L. Gardner, Judge.

Sidney Davis, pro se.

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

ALTENBERND, Judge.

Sidney Davis appeals the denial of his petition for a writ of habeas corpus seeking an immediate release from prison. We reverse and remand with directions for the circuit court of the Sixth Judicial Circuit for Pasco County to transfer the petition to the circuit court of the First Judicial Circuit for Escambia County as a motion to correct

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an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Although there may be some explanation, on the face of this court’s record it appears that Mr. Davis is serving a life sentence for a second-degree felony and that he has been in prison for this second-degree felony for more than thirty years.

Our record is limited to the exhibits attached to Mr. Davis’s petition for writ of habeas corpus. The documents, however, appear to be accurate copies of the information and the judgment and sentence from his 1976 criminal case, which were filed in the circuit court in Escambia County. The information, dated May 11, 1976, contains three counts. Count I alleges burglary in violation of section 810.02(3), Florida Statutes (1975), which was a second-degree felony in 1976. Count II is sexual battery in violation of section 794.011(3), Florida Statutes (1975), which was a first-degree felony, punishable by life in prison. Count III is petit theft of a pack of cigarettes and an “undetermined amount of pennies.” The judgment and sentence, dated November 19, 1976, state that he has been convicted of “burglary,” “sexual battery,” and “petit theft.” The sentences imposed, respectively, are life, 20 years’ imprisonment, and 60 days in the county jail, all concurrent. The only sentence that has not expired at this time is the life sentence for burglary.

It is apparent from our record that the State could have charged Mr. Davis with burglary with an assault in 1976 under section 810.02(2), which was a first-degree felony punishable by life, or the trial judge could have imposed a life sentence for the sexual battery. It does not appear, however, that either of these options occurred. On the face of our record, Mr. Davis simply appears to have received an illegal sentence for a burglary for which he was charged and convicted under section 810.02(3). See

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Helmick v. State, 569 So. 2d 869 (Fla. 2d DCA 1990) (holding that it is fundamental error to enhance a conviction when the count of the information charging the offense does not allege the enhancement, even though another count of the same information charging a different offense committed in the same criminal episode alleges the enhancement); Colwell v. State, 448 So. 2d 540, 541 (Fla. 5th DCA 1984) (holding that “[e]ach count of an information stands on its own, is the only vehicle by which the court obtains its jurisdiction[,] and is a limit upon that jurisdiction”).

Our record contains an order from the circuit court in Escambia County, which would suggest that Mr. Davis has filed one or more motions in an effort to obtain postconviction relief in the court where he was sentenced. The order that we have, dated January 18, 2008, refused to address Mr. Davis’s claim as a motion pursuant to rule 3.800(a) and treated it as an untimely motion pursuant to rule 3.850. The order further indicates that relief, if available, would be by habeas corpus in the county where Mr. Davis is incarcerated.

The order dated January 18, 2008, is confusing to this court because it states:

Defendant is not arguing that a sentence of life cannot be imposed on one convicted of burglary of an occupied dwelling with a weapon, rather he is arguing that he was not convicted of burglary of an occupied dwelling with a weapon. Such challenges would be properly raised in a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, not in a Motion to Correct Illegal Sentence.

Perhaps the circuit court in Escambia County has an amended information or another judgment and sentence. The documents filed in this court do not have an information charging burglary with a weapon. We do not have a judgment of conviction for that

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offense. We have an information charging a second-degree felony, a conviction for that felony, and then, oddly, a life sentence for a second-degree felony.

This court is now reviewing Mr. Davis’s case because Mr. Davis was and currently still is imprisoned in Pasco County, which is within the territorial jurisdiction of this court. Mr. Davis followed the suggestion of the circuit court in Escambia County and filed his challenge to his sentence as a petition for habeas corpus in Pasco County, attaching the documents we have described in this opinion. The circuit court in Pasco County denied his petition with no explanation beyond the word, “denied,” so we do not have the benefit of that court’s analysis.¹ We, of course, understand that the circuit court in Pasco County had limited authority under a petition for habeas corpus and that it could review only to determine “whether the court that entered the order was without jurisdiction to do so or whether the order is void or illegal.” Alachua Reg’l Juvenile Detention Ctr. v. T.O., 684 So. 2d 814, 816 (Fla. 1996).

It is true that in Cochran v. State, 899 So. 2d 490 (Fla. 2d DCA 2005), this court ordered a resentencing in similar circumstances. However, Mr. Cochran had committed his criminal offenses in Sarasota County, which is located within this court’s territorial jurisdiction, allowing this court to determine the level of felony for his conviction and the applicable statutory maximum.

It seems clear in this case that the circuit court in Escambia County had jurisdiction over Mr. Davis’s case in 1976. We are unconvinced that either the circuit

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court in Pasco County or this court could declare Mr. Davis’s sentence for burglary to be “void.” We do not interpret the word “illegal” in T.O. to give all custodial circuit courts jurisdiction to conduct proceedings to determine whether sentences are “illegal,” given that the sentencing court in each case retains jurisdiction to conduct such a review under rule 3.800(a) “at any time.”

Our recent opinion in Stang v. State, 34 Fla. L. Weekly D1541 (Fla. 2d DCA July 31, 2009), does not hold otherwise and is distinguishable. In Stang, this court determined that an amended sentence imposed by the circuit court in Palm Beach County, which authorized Stang’s incarceration, was void and that enforcement of the sentence as originally imposed in Palm Beach County entitled Stang to an immediate release from his imprisonment in Polk County. Id. The circumstances justifying the use of a writ of habeas corpus in such a fashion are very limited, and a habeas petition filed in the county of imprisonment is not a substitute for challenging sentences by appropriate postconviction motions filed in the county of sentencing. See Broom v. State, 907 So. 2d 1261 (Fla. 3d DCA 2005).

At this point, over thirty years after the imposition of the life sentence, we conclude that Mr. Davis’s claim that the imposed life sentence exceeds the statutory maximum sentence for the second-degree felony must be raised by a Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence filed in the circuit court for Escambia County. Such a motion would not appear to be successive, given that the last order from Escambia County refused to consider his claim under that rule. Obviously, relief may be granted to correct a manifest injustice even if the circuit court

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has previously denied a claim on its merits. See Eason v. State, 932 So. 2d 465 (Fla. 1st DCA 2006).

Accordingly, we reverse the order of the circuit court of the Sixth Judicial Circuit in Pasco County denying Mr. Davis’s petition for a writ of habeas corpus and direct that the petition be transferred to the circuit court of the First Judicial Circuit in Escambia County as a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). See Bush v. State, 945 So. 2d 1207, 1215 (Fla. 2006).

Reversed and remanded with directions.

CASANUEVA, C.J., and VILLANTI, J., Concur.

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

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Notes:

1. Even though our reversal is not based on the inadequacy of the content of this order denying relief, circuit court orders denying such motions should articulate a factual or legal basis supporting the order to provide the opportunity for meaningful judicial review and perhaps to convince the prisoner that the order is correct and does not need to be appealed. See Walters v. State, 994 So. 2d 1230 (Fla. 2d DCA 2008).

—————

Courtesy of David Edelstein

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STATE OF FLORIDA Appellant,
v.
ORQUIDEA FERNANDEZ, Appellee.

Case No. 2D08-5548.

District Court of Appeal of Florida, Second District.

Opinion filed January 22, 2010.

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

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.

James Roman Amarosa II of Amarosa Law Firm P.A., Tampa, for Appellee.

MORRIS, Judge.

The State appeals an order granting Orquidea Fernandez’s motion to suppress evidence in the State’s prosecution against her for six counts of fraudulently obtaining a controlled substance and five counts of trafficking in illegal drugs. Because the issue of Fernandez’s standing has not yet been addressed by the trial court, we

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have an inadequate record upon which to reach the central issue in this case—whether the search and seizure of the prescriptions on which the charges are based were unlawful. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Fernandez filed a motion to suppress call-in and handwritten prescriptions, statements made by employees of two pharmacies, and statements made by a particular doctor on the basis that the evidence was obtained as a result of an illegal search and seizure in violation of her right to privacy under the Fourth Amendment and the Florida Constitution. She alleged that her prescriptions, which were obtained from a pharmacy without a warrant, were medical records protected under Florida law by section 395.3025(4)(d), Florida Statutes (2007).¹ She argued that section 893.07(4), Florida Statutes (2007),² is unconstitutional as applied to the inspection and seizure of her prescriptions.

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At the suppression hearing, the State presented the testimony of Detective Wayne Robinson. He testified that he received information from several people who had been arrested that Fernandez was writing and receiving prescriptions illegally from a pharmacy. During his investigation, he went to one of the pharmacies and was informed by the pharmacist that Fernandez had “[f]ive prescriptions for controlled substances that were allegedly authorized by” a particular doctor. Detective Robinson learned that Fernandez had worked for that doctor. Detective Robinson met with the doctor, who stated that he had not written the prescriptions at issue.

After the evidence was presented, the trial court stated that medical records are protected by section 395.3025(4)(d). The State responded that a prescription is not a medical record and that section 893.07(4) allows law enforcement to search and seize a prescription without a subpoena or warrant. The State also argued that there is no reasonable expectation of privacy with respect to completed prescriptions in possession of a pharmacy. The defense claimed that under section 456.057, Florida Statutes (2007), prescriptions are medical records because pharmacists maintain prescriptions. The trial court then inquired whether a fraudulent record is a medical record, but the defense did not have an answer to that question. The defense argued that no authority allows the police to violate the Fourth Amendment with respect to medical records and that section 893.07(4) is unconstitutional.

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In a written order, the trial court suppressed the evidence on the basis that the prescriptions constituted confidential patient records, citing Whalen v. Roe, 429 U.S. 589 (1977), and section 395.3025(4). The trial court concluded that Fernandez had a reasonable expectation of privacy in the prescriptions under the Fourth Amendment and Article I, Section 12, of the Florida Constitution and that her privacy rights were violated when Detective Robinson searched the prescription records without a warrant or subpoena. The trial court concluded that section 893.07(4) does not authorize the search and seizure of prescriptions without a warrant or subpoena; rather, it provides a time limit for law enforcement to copy and inspect a patient’s records upon the issuance of either a warrant or subpoena. The trial court noted that section 893.07(4) appears overly broad and contains no checks and balances to protect a patient’s privacy, but the trial court did not rule on its constitutionality.

On appeal, the State argues that section 893.07(4) applies to the inspection and copying of prescription records and does not require a subpoena or warrant for law enforcement to access such records. The State claims that section 395.3025(4) does not apply to pharmacies. We note that the First District recently held that section 395.3025 does not apply to pharmacy records provided by the pharmacy to police during a “doctor shopping” investigation. See State v. Carter, No. 1D09-702, 2009 WL 4111210 (Fla. 1st DCA Nov. 30, 2009). The court held that section 893.07(4) applied and that it did not require pharmacies to “withhold such records until a warrant is presented.” Id. We do not reach the application of sections 395.3025(4) or 893.07(4) to

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the instant case, however, because further proceedings are necessary to determine whether Fernandez had a reasonable expectation of privacy in the prescriptions.³

The State argues for the first time on appeal that due to the fraudulent nature of the prescriptions, Fernandez has no privacy right in the prescriptions.⁴ The State does not use the word standing. However, in challenging the trial court’s conclusion that the prescriptions constitute confidential patient records, the State argues on appeal that because the prescriptions were not prepared by a medical doctor or in response to a medical condition, they do not constitute prescriptions “as that term is generally understood.” The State contends that “[g]iven the fraudulent nature of the ‘prescriptions’ obtained in this case, any claimed medical right to privacy is inapplicable.” This is a standing argument that may be raised for the first time on appeal. See Hicks v. State, 929 So. 2d 13, 16, 16 n.3 (Fla. 2d DCA 2006) (noting that the term standing is used when determining whether the defendant’s constitutional

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rights were violated, which includes the threshold inquiry of whether the defendant has a reasonable expectation of privacy); McCauley v. State, 842 So. 2d 897, 900 (Fla. 2d DCA 2003) (“Although this point was not argued by the State at the hearing on the motion, the concept of standing has been subsumed into Fourth Amendment issues and can be raised for the first time on appeal.”); State v. Lennon, 963 So. 2d 765, 769 (Fla. 3d DCA 2007) (“Although not presented below by the State, the issue of standing may be properly addressed for the first time on appeal.”).

There may be merit to the State’s claim that Fernandez lacks a reasonable expectation of privacy in the prescriptions if they were not in fact authorized by the doctor. Cf. Hicks, 929 So. 2d at 16 (holding that defendant had no reasonable expectation of privacy in stolen item because he did not lawfully possess it; therefore, he was not entitled to suppression of stolen item in a prosecution for offenses relating to stolen item); Lennon, 963 So. 2d at 770 (same). However, because this specific issue was never argued to the trial court below, the trial court never made any specific factual findings regarding whether the prescriptions were authorized and, if so, whether Fernandez had a reasonable expectation of privacy in them. The parties should be given a chance to fully address this issue. See McCauley, 842 So. 2d at 900. Accordingly, we reverse the order suppressing the evidence and remand for further proceedings. If Fernandez wishes to pursue her motion to suppress, the trial court shall hold a hearing on the issue of standing, at which time Fernandez will have the burden to establish that she had a reasonable expectation of privacy in the prescriptions. See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978); Hicks, 929 So. 2d at 16.

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Reversed and remanded.

SILBERMAN, J., Concurs.

FULMER, CAROLYN K., SENIOR JUDGE, Concurs in result only.

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

—————

Notes:

—————

Courtesy of David Edelstein

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

Case No. 2D09-5038.

District Court of Appeal of Florida, Second District.

Opinion filed January 22, 2010.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County, Michael F. Andrews, Judge.

Mark Bronk, pro se.

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

ALTENBERND, Judge.

Mark Bronk appeals the denial of his motion, which is his second motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He seeks additional jail credit in circuit court case number CRC07-03696CFAWS, a felony charge of failure to appear, for the time he spent in jail after being arrested on a bench warrant for failure to appear in case number CRC05-04571CFAWS.

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The State’s response admits that when a failure to appear in court in one case results in an arrest on a bench warrant prior to the filing of a second information charging the failure to appear as a separate offense, a defendant is entitled to jail credit on the new charge for all time spent in jail as a result of the bench warrant. Accordingly, we reverse and remand for the trial court to award additional jail credit. We note that we have expedited the release of this opinion because the additional jail credit should allow for Mr. Bronk’s release in the very near future.

On February 26, 2007, Mr. Bronk failed to appear at a pretrial conference in case number CRC05-04571, a charge of trafficking in illegal drugs. The trial court issued a bench warrant for Mr. Bronk’s arrest at that time.

On March 6, 2007, Mr. Bronk was arrested on the bench warrant. Mr. Bronk was continuously in jail from this arrest until his sentencing. The State filed a felony information formally charging him with failure to appear on July 6, 2007, in case number CRC07-03696. On July 12, 2007, while in jail, Mr. Bronk was arrested on the new warrant issued due to the filing of the formal charge of failure to appear.

The trial court sentenced Mr. Bronk in both of these cases on July 30, 2007. He received concurrent sentences, each sentence of imprisonment being three years, five months, and twenty-three days in length. However, he received fewer days of jail credit in case number CRC07-03696 because the trial court commenced his credit in that case on July 12, the date he was arrested in jail on the warrant issued in connection with the new information.

Mr. Bronk filed an earlier postconviction motion challenging his jail credit. The trial court gave him an additional eighteen days of credit in case number CRC05-04571

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but no additional credit in case number CRC07-03696. We affirmed that order on appeal. Our affirmance undoubtedly prompted the trial court to deny this second motion for jail credit. However, on this second review, we realized that we had misunderstood Mr. Bronk’s claim and the interrelationship between the two cases because the first pro se pleading had not adequately explained the nature of the bench warrant. The fact that this court affirmed a denial of his claim in a previous postconviction motion does not preclude relief when the award of jail credit is clearly incorrect as a matter of law and a failure to correct that error would result in manifest injustice. See State v. McBride, 848 So. 2d 287 (Fla. 2003); Cillo v. State, 913 So. 2d 1233 (Fla. 2d DCA 2005); Lawton v. State, 731 So. 2d 60 (Fla. 2d DCA 1999); Allen v. State, 989 So. 2d 731 (Fla. 4th DCA 2008).

Section 921.161(1), Florida Statutes (2006), provides in pertinent part that “the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.” The statutory entitlement to presentence jail credit starts with the initial arrest for a criminal offense. See Gethers v. State, 838 So. 2d 504, 506-07 (Fla. 2003); Bedford v. State, 880 So. 2d 1265, 1266-67 (Fla. 2d DCA 2004). Jail credit continues to accrue until an actual release from custody. See Green v. State, 979 So. 2d 395 (Fla. 2d DCA 2008).

Failure to appear is an unusual offense because the first warrant issued for the criminal act is often issued in an earlier case. A single act is essentially an act of disobedience or contempt in the first case and a separate felony offense in the second case. The question, thus, is whether jail credit for the separate offense runs from the

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arrest on the bench warrant in the earlier case or only from the arrest following the filing of the second information.

We note that in most criminal cases, the initial arrest will precede the filing of formal charges. The entitlement to jail credit starts with the initial arrest, even if the accused is later arrested again while in jail due to the filing of the formal charges and even if the offense reflected at the time of arrest is not the offense ultimately alleged in the information.

When this court commenced its review of this second postconviction appeal, we became concerned that Mr. Bronk had alleged a valid claim even though he had cited no case law that was directly on point. Accordingly, we asked the State to respond.

The State responded and disclosed this court’s decision in Lee v. State, 890 So. 2d 1292 (Fla. 2d DCA 2005), which squarely supports Mr. Bronk’s claim. The State also recognized that the doctrine of law of the case did not prevent an award of additional jail credit at this time. This court acknowledges and appreciates the professionalism of the attorney who filed the State’s response.

Accordingly, Mr. Bronk is entitled to an award of jail credit in case number CRC07-03696 from March 6, 2007, to July 12, 2007. See Foley v. State, 857 So. 2d 292 (Fla. 2d DCA 2003).

We reverse with directions for the postconviction court to award this jail credit. Because Mr. Bronk may be entitled to a release from prison in February 2010 and the State has recognized the error in this case, we issue our mandate with this opinion to provide the trial court with the power to award the credit forthwith.

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Reversed and remanded with directions.

CASANUEVA, C.J., and VILLANTI, J., Concur.

Courtesy of David Edelstein

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