Florida Criminal Law Opinions

JEROME KNOWLES, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-4209.

District Court of Appeal of Florida, Fourth District.

January 20, 2010.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Jorge Labarga, Judge, L.T. Case No. 06-11015 CFAMB.

Carey Haughwout, Public Defender, Paul E. Petillo and Timothy D. Kenison, Assistant Public Defenders, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

In appealing his conviction for vehicular homicide, appellant claims that the court erred in denying his motion for judgment of acquittal on the enhanced charge of failing to stop and render aid following the accident resulting in the death. We conclude that the state presented evidence inconsistent with the defendant’s reasonable hypothesis of innocence that he was unaware of the accident. On all other issues we also affirm.

The state charged Knowles with first-degree vehicular homicide, i.e., “the killing of [David Markel] . . . caused by [Knowles's] operation of a motor vehicle . . . in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2005). The charged crime constituted a first-degree felony because the state alleged that Knowles knew or should have known that an accident occurred, and failed to give aid and information as required by law. § 782.071(1)(b), Fla. Stat.

The accident occurred around 10:30 a.m., on a clear sunny day, amid moderate traffic, on the southbound lanes of the Florida turnpike, a few miles north of the PGA Boulevard exit, where the speed limit was seventy miles per hour. Knowles was driving his orange Dodge Dakota truck southbound on the turnpike to visit his father in Fort Lauderdale. Ken Borman was a passenger in the vehicle.

Several witnesses observed part or all of the chain of events which led to the death of Markel. David Blitstein and Rene Cantin both observed

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erratic driving by an orange vehicle. Blitstein was proceeding south in the right lane, looked to his left, and saw an orange truck driving directly towards his car’s driver-side door. Blitstein swerved to the right and ended up on the shoulder, at which point he turned back to the left and continued driving in the right lane. Cantin was driving south in the left lane when he observed an orange truck in his rear-view mirror approaching quickly and weaving in and out of traffic. The truck passed Cantin on the right and pulled into the left lane in front of Cantin.

A bit further south of Blitstein and Cantin, Michael Willover was driving between seventy and seventy-five miles per hour in the left lane. Markel was driving a white Toyota Tundra pick-up truck in the right lane about a half-a-car-length ahead of Willover. In his rear-view mirror, Willover noticed Knowles’s orange truck in the left lane, approaching rapidly. Knowles moved to the right lane, came up beside Willover’s car, and attempted to force his way back into the left lane, in front of Willover. Willover slowed down and Knowles managed to get around him without hitting Willover or Markel.

Markel, however, turned the wheel hard to the right to avoid the orange truck, then turned the wheel back to the left, and finally made a hard-right turn onto the shoulder. Markel’s truck then rolled over multiple times until it came to rest in a ditch. Various witnesses testified that Knowles did not tap on his brakes but continued driving southbound without stopping. Knowles’s truck had fully functioning rear and side view mirrors. According to Borman, Knowles’s passenger, Markel swerved from the right lane into the left lane, forcing Knowles to swerve left towards the guardrail. Markel then straightened the car out, and Knowles continued driving southbound without stopping. Borman did not notice anything which would have suggested that the white truck crashed. Willover, who was behind Knowles’s vehicle, only saw Markel begin to roll his car as he passed. He did not see the accident, nor did he see any debris flying.

Markel died as a result of injuries suffered in the crash. Knowles did not stop at the scene of the accident but exited the turnpike, stopped at a Mobil gas station, and then proceeded over other roads to his father’s home in Fort Lauderdale. Because a witness was able to obtain a license plate number, Knowles was eventually found and arrested for vehicular homicide.

At his trial, in addition to the witnesses to the accident, the state presented the lead traffic homicide investigator as an accident reconstruction expert. Mary Godino ascertained from the physical

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evidence and witness statements that Markel was traveling seventy miles per hour when he hit his brakes, veered sharply right onto the shoulder, back onto the road and into the left lane, then to the right and onto the shoulder again. As a result, he lost control of the car which rolled several times until it came to a stop in a ditch. Based upon the physical evidence as well as the witness reports, she concluded that Knowles caused the accident through his driving actions.

After the trial court denied Knowles’s motion for judgment of acquittal, Knowles’s passenger, Ken Borman, testified that he had not noticed anything unusual in his drive down to Fort Lauderdale with Knowles. While he saw Markel turn into Knowles’s lane, and the two cars almost touched, he did not see any debris flying nor any accident. Knowles’s wife and father testified that Knowles acted normally that day and did not look bothered by anything.

During the charge conference, defense counsel requested that the court give a lesser included charge of reckless driving. The court denied the request. The jury was charged and returned a verdict finding Knowles guilty as charged, finding that he knew or should have known of the accident and failed to stop and render aid. The court sentenced him to thirty years in prison. He appeals his conviction.

In Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002), the supreme court articulated the standard for review of a judgment of acquittal.

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. However, if the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence.

(citations omitted). Nevertheless,

The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is

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inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

State v. Law, 559 So. 2d 187, 189 (Fla. 1989) (citation and footnote omitted).

The state charged Knowles with vehicular homicide under section 782.071(1)(b), Florida Statutes. That section requires that the state prove the killing of a human being “caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another” and that “1. At the time of the accident, the person knew, or should have known, that the accident occurred; and 2. The person failed to give information and render aid as required by s. 316.062.”

Knowles moved for judgment of acquittal, arguing that the evidence of whether he knew or should have known that an accident occurred was circumstantial in this case. He posited a reasonable hypothesis of innocence that he did not know an accident occurred, nor should he have known as he had passed the scene before the Markel vehicle rolled over. After a careful review of all of the evidence in the case in a light most favorable to the state in accordance with the foregoing legal standard, we conclude that the state presented evidence inconsistent with the reasonable hypothesis of innocence.

This is an atypical case, because the Knowles vehicle never contacted the Markel vehicle. When Knowles cut in front of Willover’s vehicle and ended up beside Markel in the left lane, Markel reacted by pulling his vehicle to the right, then to the left, and finally sharply to the right when it left the road, went into the grass, and began to roll. Knowles was right beside Markel when he first pulled to the right, and his own passenger observed Markel swerve. Willover testified that he heard a very loud noise of Markel’s tire screeching as the Markel vehicle swerved sharply. The state asked the following unobjected-to question and received a response which is inconsistent with Knowles’s hypothesis of innocence:

Q. When you saw the vehicle go from right to left back to right, you said that the orange vehicle wasn’t that far, well far ahead I think as defense described it, was there anything obstructing the view from the orange vehicle to the white

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vehicle during this rollover and during this crash and loss of control?

A. I’d say no. It happened in that [sic] seconds right next to it. So I don’t think anything could have impaired the view of one to the other.

(emphasis supplied). In light of this testimony, taken together with the loud noise of Markel’s vehicle as it swerved and the fact that Knowles’s vehicle was forced toward the guardrail, we conclude that the evidence was inconsistent with Knowles’s claim that he was unaware of the accident that was beginning to unfold right beside him. Therefore, the court properly submitted the issue to the jury for resolution.

Knowles also claims that his conviction for vehicular homicide should be reversed because the state failed to instruct on the lesser included offense of reckless driving. The court denied Knowles’s request based on State v. Barritt, 531 So. 2d 338 (Fla. 1988), and ultimately instructed the jury on vehicular homicide under section 782.071, Florida Statutes. In Barritt, 531 So. 2d at 339, the supreme court recognized that “reckless driving is a necessarily lesser included offense of vehicular homicide” and that a defendant is normally “entitled to an instruction on all necessarily lesser included offenses.” However, the court held that “[i]f vehicular homicide is charged, a requested instruction on reckless driving need not be given where it is undisputed that a death has occurred as a result of the accident.” Id.

The evidence was undisputed that Markel’s death was the result of the accident. Knowles only disputed whether he caused the accident, as he argued that Markel’s own conduct in losing control over his vehicle caused him to roll over. In Reaves v. State, 979 So. 2d 1066, 1069 (Fla. 1st DCA 2008), the First District noted that a “decedent’s conduct may only be asserted as a defense to vehicular homicide when that conduct could be viewed as the sole proximate cause of the accident which resulted in the death.” In this case, Markel’s conduct alone did not cause the accident. Knowles’s angling his car between Markel and Willover together with Markel’s response thereto, caused the accident. We agree with the trial court that Barritt controls.

We affirm as to the remaining issues raised. Although we do not conclude that the trial court erred in its rulings, even if errors occurred, we would find them harmless beyond a reasonable doubt. With respect to the accident reconstruction expert describing Knowles’s driving as

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“possibly reckless,” the defense did not object to that comment. While the defense had objected to the expert testifying that Knowles caused the accident, the description of Knowles’s driving as reckless was not within the scope of that objection.

Affirmed.

POLEN, J., and KAPLAN, MICHAEL G., Associate Judge, concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Lorenzo Tatum, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-2623.

District Court of Appeal of Florida, Third District.

Opinion filed January 20, 2010.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Antonio Marin, Judge, Lower Tribunal No. 92-3518B, 91-42776D.

Lorenzo Tatum, in proper person.

Bill McCollum, Attorney General, for appellee.

Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

WELLS, Judge.

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Lorenzo Tatum appeals from an order denying the instant collateral attack on the sentence imposed on him in 1993. Tatum’s arguments have either already been adjudicated multiple times, once by this Court, or are now time barred from further consideration.

Tatum was sentenced to 40 years in prison on December 3, 1993, after pleading guilty to second degree murder, armed robbery, aggravated battery, armed burglary, unlawful possession of a firearm, and grand theft in the third degree in case number 91-42776D.¹ In June 1995, Tatum filed his first Florida Rule of Criminal Procedure 3.800 motion claiming that he was (1) illegally sentenced as an adult in violation of section 39.059 of the Florida Statutes, and (2) denied due process because “[a]fter the direct and redirect testimonies of the witnesses’ [sic], the trial judge told Mr. Tatum, that he has determined to impose adult sanctions as opposed to juvenile sanctions in the case.”

Claiming that he had received no order on this motion, in November 1998, Tatum filed a Florida Rule of Criminal Procedure 3.850 motion claiming that his guilty plea was involuntary because he was improperly treated and sentenced as an adult rather than as a juvenile in violation of section 39.059 of the Florida Statutes

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and because he was denied due process since his parents were not contacted before he accepted a plea and was sentenced. In light of subsequent proceedings, this motion apparently was denied.

In July of 1999, Tatum filed his second Rule 3.800 motion, at least his third motion attacking his agreed to sentence. This motion claimed that Tatum’s sentence was illegal because:

• it violated section 39.059 of the Florida Statutes;

• absent a jury determination that he had used a firearm when he committed the second degree murder for which he was being sentenced, the maximum sentence he could receive for second degree murder, a first degree felony, was 30 years in prison rather than the 40 year sentence he received;

• a statutory three-year minimum mandatory sentence for use of a firearm was improperly imposed;

• no additional crimes should have been scored because they were all part of the same undertaking; and

• no written reasons were given for the purported departure 40 year sentence.

On August 3, 1999, the court below rejected each of these arguments confirming (1) that the maximum sentence for second degree murder with a firearm—to which Tatum more than once has conceded that he pled guilty—is life imprisonment; (2) the maximum penalty for attempted first degree murder with a firearm, armed robbery with a firearm, and armed burglary with a firearm—to which Tatum also concededly pled guilty—are also punishable by life

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imprisonment; (3) a 40 year sentence does not exceed a statutory maximum of life; (4) Tatum’s argument regarding the minimum mandatory sentence was moot since he had already served that sentence; and, (5) although Tatum’s section 39.059 claim should have been raised on direct appeal and was procedurally barred, no error could be demonstrated because the sentencing court had the discretion to determine whether to sentence Tatum, who had been charged as an adult, as a juvenile or as an adult.

Tatum appealed from that order, and in case number 3D99-2411, this Court expressly concluded that each of Tatum’s claims was without merit:

Lorenzo Tatum appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). He argues that he was a juvenile at the time he pled guilty to second degree murder and other crimes in 1993, and contends that his sentence is illegal because the sentencing court did not make findings regarding the necessity of adult sanctions. See § 39.059(7)(d), Fla. Stat. (1991). We reject that claim on authority of Summers v. State, 684 So. 2d 729 (Fla. 1996). We find no merit to appellant’s remaining points and reject them without discussion.

Affirmed.

Tatum v. State, 741 So. 2d 1266, 1266 (Fla. 3d DCA 1999) (emphasis added).

Undeterred, in June of 2005, Tatum filed yet another Rule 3.800 motion. This motion, like the last, claimed (1) that Tatum’s second degree murder conviction should not have been “enhanced” for use of a firearm from a first degree to a life felony; (2) his scoresheet should have been scored for an

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“unenhanced” second degree murder, which is a first degree felony, rather than as a life felony “enhanced” for use of a firearm; and, (3) that the remainder of his convictions had been mis-scored.

In November 2005, the trial court denied the motion, confirming that these claims had already been made and previously denied. Although Tatum’s June 2005 motion did not claim that his guilty plea was predicated on an agreement that he be sentenced within sentencing guidelines, the order denying this motion also stated that the record did not reflect the existence of such an agreement:

PETITIONER LORENZO TATUM complains that the sentencing guidelines were miscalculated at the time of his guilty plea. Petitioner has filed three previous motions for collateral relief. At least one of those motions, that is, the motion filed on July 15, 1999, raised the same grounds as the grounds raised in the current motion. The motion on those grounds was denied by Judge Richard Margolius on August 3, 1999. Although there is no plea colloquy available for the Court’s review, there is nothing in the court file to indicate that the guilty plea was conditioned upon an agreement that the sentence be within the sentencing guidelines. It is therefore,

ORDERED AND ADJUDGED that the defendant’s Motion to Correct Illegal Sentence is DENIED.

(Emphasis added).

On appeal, this order was reversed, without explication, “[b]ecause the record now before us fails to make the required showing [that the defendant is not entitled to any relief].” Tatum v. State, 957 So. 2d 1214, 1214 (Fla. 3d DCA 2007). In February of 2008, Tatum filed a motion in the trial court to enforce this

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mandate. The motion to enforce, like Tatum’s prior two motions, raised the same issues raised and rejected by this court in 1999:

WHETHER TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENIAL OF DEFENDANT’S CLAIM OF IMPROPER CALCULATION OF SENTENCING GUIDELINE SCORESHEET DUE TO IMPROPER RECLASSIFICATION OF FIRST DEGREE FELONIES TO LIFE FELONIES, WHERE FIREARM WAS ESSENTIAL ELEMENT OF OFFENSES BY INCORPORATION AS DEFENDANT WAS CONVICTED AND SENTENCED FOR POSSESSION OF FIREARM AS THIS CAUSE HAS BEEN REVERSED AND REMANDED AS NO ATTACHMENTS CONCLUSIVELY DEMONSTRATED THAT DEFENDANT WAS NOT ENTITLED TO RELIEF SOUGHT, WHICH WAS APPARENT ON THE FACE OF THE RECORD AND CORRECTION IS WARRANTED IN THE INTEREST OF PREVENTING A MANIFEST INJUSTICE FROM CONTINUING TO OCCUR?

This motion also argued for the first time that Tatum’s attorney had assured him that his sentence for second degree murder would be within the guidelines for a first degree felony and as a consequence his guilty plea to second degree murder with a firearm (as a life felony) was involuntary.

The trial court summarily denied this motion. On yet another appeal, we treated this order as a denial of a motion to enforce our mandate in Tatum, 957 So. 2d at 1214, and concluded:

Based on the decision and accompanying mandate in Tatum, the trial court had the option of denying Defendant’s motion and attaching portions of the record conclusively showing that Defendant is not entitled to relief, or granting the motion. McIntosh v. State, 914 So. 2d 511 (Fla. 5th DCA 2005). Because the trial court has not yet

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taken either course, we grant the motion and direct the trial court to promptly comply with our previously-issued mandate.

Tatum v. State, 994 So. 2d 1231, 1231 (Fla. 3d DCA 2008).

On August 11, 2009, the trial court denied Tatum’s motion for yet a third time:

PETITIONER LORENZO TATUM complains that the sentencing guidelines were miscalculated at the time of his guilty plea. Petitioner has filed three previous motions for collateral relief. At least one of these motions, that is, the motion filed on July 15, 1999, raised the same grounds as the grounds raised in the current motion. The motion on those grounds was denied by Judge Richard Margolius on August 3, 1999. Although there is no plea colloquy available for the Court’s review, there is nothing in the court file to indicate that the guilty plea was conditioned upon an agreement that the sentence be within the sentencing guidelines. It is therefore,

ORDERED AND ADJUDGED that the defendant’s Motion to Correct Illegal Sentence is DENIED. Skidmore v. State, 688 So. 2d 1014 ([Fla.] 3rd DCA 1997). Speer v. State, 734 So. 2d 454 ([Fla.] 4th DCA 1999). Perry v. State, 705 So. 2d 615 ([Fla.] 4th DCA 1998). The clerk of the Circuit Court of the 11th Judicial Circuit is hereby,

ORDERED to attach copies of the petitioner’s motion filed July 15, 1999, Judge Margolius’ order on the motion rendered on August 3, 1999, the State’s response to the instant motion.

Tatum appeals again. For the following reasons, we affirm.

First, all of Tatum’s Rule 3.800 claims—that is his claims that his sentence is illegal because section 39.059 was improperly applied; that absent a jury determination that the second degree murder to which he pled guilty was committed with a firearm, he had to be sentenced for a first degree felony rather

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than for a life felony; and that the remainder of his convictions were improperly scored—have already been adjudicated by this court in Tatum, 741 So. 2d at 1266. These claims were, therefore, properly rejected by the court below in November of 2005, when it denied Tatum’s June 2005 motion. See State v. McBride, 848 So. 2d 287, 289, 291 (Fla. 2003) (“[T]he law of the case doctrine . . . requires that `questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.’ . . . Collateral estoppel . . . precludes a defendant from rearguing in a successive rule 3.800 motion the same issues argued in a prior motion.” (quoting Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001))). There is, therefore nothing further to be done, whether by further proceedings or by attachment of documents, with regard to these claims.

Second, Tatum’s suggestion (made for the first time in his February 2008² motion to enforce mandate and argued again here) that he was misadvised by his attorney as to how his second degree murder conviction would be scored, and thus that his plea was involuntary, entitles him to no remand or relief. Such claims cannot be discerned from the face of the record and do not, therefore, fall within the purview of a Rule 3.800 motion. See Fla. R. Crim. P. 3.800(a) (providing that a court may “at any time” correct an illegal sentence imposed by it, or an incorrect

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calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served “when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief“) (emphasis added). At best, these ineffective assistance of counsel/involuntary plea claims are cognizable, if at all, under Rule 3.850 with its two year time limitation—a limitation which had long since passed when these claims were first raised. Fla. R. Crim. P. 3.850(b) (providing that except for motions seeking to vacate a sentence that exceeds the limits provided by law, motions claiming that a plea is involuntary or that a judgment or sentence is otherwise subject to collateral attack must be filed within two years after the judgment and sentence become final); see Towery v. State, 977 So. 2d 774, 774 (Fla. 2d DCA 2008) (confirming that a claim that a plea was involuntarily entered based on a scoresheet miscalculation falls within the purview of Rule 3.850); Rankin v. State, 861 So. 2d 1222, 1224 (Fla. 2d DCA 2003) (confirming that Rule 3.850 governs a claim that a defendant would not have entered a plea had he been aware of the correct guidelines sentence); West v. State, 935 So. 2d 123, 124 (Fla. 4th DCA 2006) (stating that a “defendant may file a rule 3.850 motion to seek withdrawal of his plea based on its involuntary character due to [an] incorrect scoresheet”); see also Ey v. State, 982 So. 2d 618, 625 (Fla. 2008) (concluding that the two-year time limit imposed by Rule 3.850 begins to run from the date the conviction becomes final and not from the time the defendant learns of

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attorney misadvice); Singleton v. State, 981 So. 2d 1259, 1261 (Fla. 2d DCA 2008) (concluding that as to claim at issue, “the claim of misadvice does not depend on `facts’ that `could not have been ascertained by the exercise of due diligence’ and the exception in rule 3.850(b)(1) from the two-year time limitation on the filing of postconviction claims is therefore not applicable.”).³ There is, therefore, nothing for further determination in this case.

Accordingly, the order denying Tatum’s June 2005 motion is in all respects affirmed.

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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T.R., a juvenile, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-808.

District Court of Appeal of Florida, Third District.

Opinion filed January 20, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lester Langer, Judge. Lower Tribunal No. 07-7305.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.

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

SHEPHERD, J.

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T.R., a juvenile, appeals her withhold of adjudication and sanction for simple battery. She argues she is entitled to a new disposition hearing before a different judge because the trial court impermissibly relied upon the fact that she maintained her innocence to the charged offense throughout the proceeding below. We agree and reverse.

T.R. was charged with simple battery for smacking the victim, a fellow student, with her lunch box at a bus stop for allegedly making sexually offensive remarks to T.R. T.R. maintained her innocence and requested an adjudicatory hearing by the court below. The only two witnesses at the adjudicatory hearing were the victim and T.R. The evidence was conflicting as to whether T.R. intentionally swung her lunch box at the victim, or whether it accidentally hit the victim as T.R. maneuvered to try to get away from the victim. At the conclusion of the hearing, the trial court judge found T.R. guilty as charged, stating:

[T]his is something that should have been resolved by the parents a long time before this got to me, but for whatever reason it was not, so therefore it was placed in front of me, and I have a legal obligation to follow where the evidence takes me . . . to the inevitable conclusion that this, in fact, was a battery.

(emphasis added). The court then set the case for a later disposition hearing.

At the disposition hearing, the Juvenile Probation Officer (JPO) recommended that T.R. be referred to Juvenile Alternative Services Sanctions

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(JASS), a diversion program.¹ The State opposed the recommendation on the ground T.R. twice had been offered and rejected the same offer, once on the day before trial. According to the State, giving T.R. the same sanction post-adjudication as she was offered before trial “would be a get out of jail free card.” The trial court agreed with the State and rejected the recommendation by the JPO, stating:

I also have a specific recollection of taking a break in this case and sending everyone out of here to try to resolve the case in a different way, so that essentially this Court would not have to make a decision based on the facts that I heard in this case, and that was rejected by the defense.

There is [no] possible way for me to go ahead and offer this young lady diversion at this point in time.

The family rejected the Civil Citation, they rejected the JAS[S] offer, prior to the State bringing this case.

Everybody walked away from the opportunity that the Court gave them to try to resolve this case in a different way, at the time of trial, after I heard the majority of the case, and the facts before I rendered a decision.

At this point, this young lady has gone to Court, gone to trial, exercised her rights under the Constitution, and now it is my job to sentence her.

It is not the Department’s job to make the State’s decision to send her to a diversion program.

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It is unfortunate that everybody walked away from the opportunity to have this case g[o] in a different direction. Unfortunately, here we are.

. . . .

Perhaps there was another way of handling this case before, but we are not at that point anymore. We are beyond that point.

(emphasis added). The trial court withheld adjudication of delinquency and placed T.R. on reporting probation with conditions.²

Juveniles have a constitutional right not to be unfairly penalized for the assertion of innocence and demand for trial. A.S. v. State, 667 So. 2d 994, 995-96 (Fla. 3d DCA 1996) (“`The law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.’”) (quoting City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla. 1985)) (internal citation omitted); Fraley v. State, 426 So. 2d 983, 985 (Fla. 3d DCA 1983); R.A.B. v. State, 399 So. 2d 16, 18 (Fla. 3d DCA 1981) (holding improper decision to adjudicate a juvenile delinquent based upon his asserted Fifth Amendment right to remain silent and right to plead not guilty);

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McEachern v. State, 388 So. 2d 244, 248 (Fla. 5th DCA 1980). This is so even if the juvenile’s desire to maintain her innocence was not the sole factor in the court’s decision making process. A.S., 667 So. 2d at 996.

The facts of this case are only slightly less compelling than those in A.S. In A.S., the H.R.S. (the predecessor to the Department of Juvenile Justice) recommended to the court that A.S. not be committed, receive a withhold of adjudication, and be ordered to perform twenty hours of community service. The prosecutor opposed the recommendation, stating:

In my opinion, his failure to accept responsibility warrants more. There is no recommendation except for 20 hours of community service and a withhold. That’s a slap on the wrist. I think this case warrants a lot more. I think it warrants an adjudication of delinquency, and I think it warrants a commitment to level 6[.]

Id. at 995.

Thereafter, the trial court stated:

I’m not so sure that’s what we want in this time when violence in our community amongst young people is escalating. And especially, I’ve got a case here where this child is saying, `I didn’t do it.’ So I guess there was a phantom stabber that night, June 20. He didn’t do it. And if she [victim] fell and there happened to be some bottles there, she fell against the broken bottle and cut her neck[.]

. . . .

I mean, this is a very bad act. This wasn’t just a little pen knife that happened to be nearby or something. This was gotten and he came back to the scene. And now we have somebody saying, I didn’t do it.

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Id. Further in its written order of disposition, the trial court expressly included its observation that A.S. showed no remorse for his action and maintained his innocence as reasons for the disposition of this cause. Id.

We concluded in A.S. the trial court had made it “abundantly clear” on the record that its disposition was influenced significantly by A.S.’s continued protestation of innocence. Id. at 996. Although the trial court here did not take the additional step taken in A.S. to commit his improper action to writing, it is our judgment that it also nevertheless is “abundantly clear” from the record provided that T.R.’s election to assert her innocence and demand a trial was at least “a factor” in the trial judge’s adjudication and disposition of this case. See id.; see also B.R. v. State, 902 So. 2d 333, 334 (Fla. 5th DCA 2005) (remanding for new disposition hearing in juvenile proceeding based, in part, upon trial judge’s statement, “I don’t admire the fact that you have taken up this Court’s time, when this case could have been resolved appropriately”).

For these reasons, we reverse the adjudication and disposition by the trial judge in this case, and remand the case for a new trial. In an abundance of caution and to insure completely fair proceedings, we remand for retrial and redisposition of T.R. before a different judge. See K.N.M. v. State, 793 So. 2d 1195, 1198 (Fla. 5th DCA 2001); Hubler v. State, 458 So. 2d 350, 353 (Fla. 1st DCA 1984).

Reversed and remanded with instructions.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

Courtesy of David Edelstein

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RAMON LUCKY, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4014.

District Court of Appeal of Florida, Fourth District.

January 20, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Peter Weinstein, Judge, L.T. Case No. 06-20325CF10A.

Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, C.J.

We address the issue of whether the state’s evidence of value of a television in a grand theft case was sufficient to withstand the defendant’s motion for judgment of acquittal. We hold that the state failed to elicit sufficient evidence of value, reverse the grand theft conviction, and remand for the entry of a judgment and sentence for petit theft.

Ramon Lucky was charged with burglary of a dwelling and grand theft of a television. The only evidence of the value of the television came from the victim’s mother, who said that she purchased the flat screen television from BrandsMart six months before the theft for “about $1400.” The state offered no other testimony to establish the fair market value of the television.

The grand theft charge in this case required proof that the value of the television was “$300 or more, but less than $5,000.” § 812.014(2)(c)1., Fla. Stat. (2008). For the purpose of the theft statute, value “means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)1., Fla. Stat. (2008).

In Mansfield v. State, 954 So. 2d 74, 76-77 (Fla. 4th DCA 2007), we summarized the law concerning the adequacy of proof of value in a grand theft case:

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In Gilbert v. State, 817 So. 2d 980 (Fla. 4th DCA 2002), this court cited I.T. v. State, 796 So. 2d 1220 (Fla. 4th DCA 2001), in which this court adopted a two-pronged test for determining whether the evidence adduced at trial to prove the value of the stolen property is sufficient to withstand a motion for judgment of acquittal. First, the court must ascertain whether the person testifying is competent to testify to the value of the property. Id. at 1221. This court explained:

“With regard to the first prong . . . an owner is generally presumed as competent to testify to the value of his stolen property. The apparent rationale for this rule is that an owner necessarily knows something about the quality, cost, and condition of his property.” [Taylor v. State, 425 So. 2d 1191, 1193 (Fla. 1st DCA 1983)] (citation omitted). Mere ownership, however, is insufficient, and the witness must have personal knowledge of the property. Id.

I.T., 796 So. 2d at 1221-22.

Second, if the person is competent, the court must ascertain whether the evidence adduced at trial is sufficient to prove that the property was worth over $300 at the time of the theft. Id. Absent direct testimony of the market value of the property, proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.

Gilbert, 817 So. 2d at 982.

Electrical components like televisions, computers, and stereo systems are subject to accelerated obsolescence because manufacturers are constantly releasing new, improved technology at lower prices. For this reason, purchase price alone is generally insufficient to establish the value of such property in theft cases. See C.G.H. v. State, 968 So. 2d 94, 95 (Fla. 2d DCA 2007) (purchase price of camera a year earlier, without more, not sufficient to establish value of $300 or more); D.H. v. State, 864 So. 2d 588, 589 (Fla. 2d DCA 2004) (state failed to establish value of $300 or more of DVD player, computers, Sony PlayStation2, cameras

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and other items where victim testified to purchase price of some items; court rejected argument that “sheer number and type” of items established value over $300); Taylor v. State, 425 So. 2d 1191, 1193-94 (Fla. 1st DCA 1983) (evidence that CB radio worth $249 when it was purchased eight months before theft insufficient to establish value of $100 at time of theft). For example, in Doane v. State, 847 So.2d 1015, 1017 (Fla. 5th DCA 2003), a grand theft charge involved “two computer monitors, two central processing units, two keyboards, a scanner, a printer, and a 35 mm Nikon camera . . . .” The victim testified that he paid $1,588 for one of the computers, $320 for the scanner, and that his property manager paid several thousand dollars for the other computer. Id. at 1017. The opinion does not specify the date of the theft. The fifth district held that this evidence “was insufficient to prove that the property was worth over $300 at the time of the theft.” Id. at 1017-18. The court reasoned:

The State failed to adduce any other direct testimony of the market value of the stolen property. The State also failed to present any testimony as to the manner in which the items had been used, its general condition and quality, or its depreciation percentage. Furthermore, as computer equipment can become obsolete very quickly, the value of the stolen equipment was not “so obvious as to defy contradiction.”

Id. at 1018 (footnote and citation omitted).

On the other hand, “purchase price and `other circumstances’ can be sufficient evidence of market value in the appropriate case.” Pickles v. State, 313 So. 2d 715, 717 (Fla. 1975). Thus, in K.W. v. State, 983 So. 2d 713, 716 (Fla. 2d DCA 2008), evidence that the cell phone was purchased for $450 only three months before the theft and that at the time of the theft, it was in “brand new,” working condition, was sufficient to establish value.

Smith v. State, 955 So. 2d 1227, 1228 (Fla. 5th DCA 2007), tips the scale for reversal. There the issue was whether the state failed to prove that the value of a stolen computer was $300 or more. The victim testified that the computer was a Dell laptop, less than a year old, which “`might have been about six months old at the time’ of the theft.” Id. at 1228. The victim paid “around $1,200″ for the computer, which was working when it was returned to him after the theft. The fifth district rejected the state’s argument that the jury could take the $1,200 purchase price and apply its common sense to determine a value in

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excess of $300 after only six months of use. Id. at 1229. The court held that there was “no competent evidence . . . to prove” the computer’s value at the time of the theft. Id.

In this case, there is even less evidence of value than in Smith, because the television was never returned. As in Doane, there was no evidence about the general condition of the television when stolen or the manner in which it was used. This is not a case where because of the nature of the stolen property, “reasonable persons could not doubt that its value exceeded the statutory threshold.” Kitt v. State, 834 So. 2d 390, 392 (Fla. 2d DCA 2003) (Casanueva, J., concurring); see Jackson v. State, 413 So. 2d 112 (Fla. 2d DCA 1982) (holding that jury could properly conclude that a 37-foot 1980 Hunter sailboat less than one year old had a value greater than $100).

Because the state failed to establish the value of the property in this case, we vacate the conviction and sentence for grand theft and remand to the circuit court for the entry of a judgment and sentence for petit theft. We affirm the conviction for burglary.

Affirmed in part, reversed in part and remanded.

STEVENSON and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Jerry Lavone Ducksworth, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-3289.

District Court of Appeal of Florida, Third District.

Opinion filed January 20, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge, Lower Tribunal No. 99-29232.

Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

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

ROTHENBERG, J.

The defendant, Jerry Lavone Ducksworth, appeals his life sentence, arguing that the trial court imposed a vindictive sentence. We affirm.

In 1999, the defendant was charged with one count of robbery with a deadly weapon and one count of aggravated assault. At the time of the charged offenses, the defendant was on probation, and therefore, the State filed an affidavit of probation violation, seeking to revoke the defendant’s probation.

At a pretrial hearing conducted on October 2, 2000, the State informed the trial court that the defendant scored eleven to nineteen years on the violation of probation, and that he qualified for enhanced sentencing in the new case as a habitual offender and prison releasee reoffender, and possibly as a habitual violent offender. The State then informed the trial court that it “had a standing offer of 20 years as a habitual offender to close all the matters, which I think is reasonable.” In response, the trial court stated, “I agree.” Defense counsel rejected the offer on the defendant’s behalf. Thereafter, the trial court, without further discussion regarding the State’s plea offer, granted a joint continuance.

In February 2001, the defendant’s trial resulted in a hung jury and mistrial. While the jury was deliberating, however, the trial court conducted a probation violation hearing. The trial court found that the defendant violated his probation and sentenced him to 9.9 years.

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The defendant was retried in May 2001. The jury found the defendant guilty of robbery with a weapon, as a lesser included offense of robbery with a deadly weapon. Thereafter, the trial court sentenced the defendant to life in prison as a habitual violent felony offender and concurrent thirty-year minimum mandatory sentences as a prison releasee reoffender and three-time violent felony offender. In sentencing the defendant, the trial court stated: “It is obvious to this court that sentencing Mr. Ducksworth to the maximum possible sentence is necessary for the protection of society.”

This Court affirmed the defendant’s conviction, life sentence as a habitual violent felony offender, and thirty-year minimum mandatory sentence as a prison releasee reoffender, but struck the thirty-year minimum mandatory sentence as a three-time violent felony offender. Ducksworth v. State, 834 So. 2d 951, 952 (Fla. 3d DCA 2003). Several years later, this Court granted the defendant a belated appeal on the claim of vindictive sentencing. Ducksworth v. State, 998 So. 2d 614 (Fla. 3d DCA 2008), which is the subject of the present appeal.

The defendant contends that, based on the totality of the circumstances, the trial judge imposed a presumptively vindictive sentence. We disagree.

In Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003), the Florida Supreme Court set forth the applicable standard when determining whether the defendant’s due process rights were violated by “the imposition of an increased sentence after

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unsuccessful plea discussions in which the trial judge participated.” (emphasis added). As further explained in Wilson:

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a “reasonable likelihood” that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial. The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant . . .; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. at 156 (citation omitted; footnotes omitted). If the totality of the circumstances gives rise to a presumption of vindictiveness, then the burden shifts to the State to produce evidence on the record to dispel the presumption. Id. at 156 n.8 (“Where the totality of the circumstances does not give rise to a presumption of vindictiveness, the burden remains upon the defendant to prove actual vindictiveness.”).

Here, the trial judge did not participate in the plea negotiations. Instead, the record demonstrates that the State informed the trial court that the defendant scored eleven to nineteen years on the probation case and 10.8 years with a ten-year minimum mandatory on the new charges; the defendant qualified for enhanced

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sentencing on the new charges as a habitual offender, a prison releasee reoffender, and possibly as a habitual violent offender; that the sentence on the new charges could be ordered to run consecutive to the sentence imposed on the probation violation; and that the State had offered the defendant a plea of twenty years “to close all matters,” commenting that it believed that the offer was “reasonable.” Thereafter, the trial judge merely agreed that the State’s plea offer sounded reasonable. After defense counsel rejected the plea offer on the defendant’s behalf, the trial judge did not comment on the defendant’s decision nor discuss the plea offer. Moreover, the record does not demonstrate that the trial judge was aware of the facts surrounding the newly charged crimes or that he would have accepted the plea after reviewing the facts of the case or the defendant’s prior criminal history. Based on the record before this Court, the totality of the circumstances does not give rise to a presumption of vindictiveness. Thus, the burden remained with the defendant to prove actual vindictiveness, and because the defendant failed to meet his burden, we affirm.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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DARRYL JACKSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2497.

District Court of Appeal of Florida, Fourth District.

January 20, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Robert Belanger, Judge, L.T. Case No. 562007CF005055A.

Carey Haughwout, Public Defender, and Ellen Griffin, 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.

GROSS, C.J.

We reverse an attempted burglary conviction because the evidence at trial established a completed offense, so the jury should not have been given the charge of attempted burglary as a lesser included offense over the defendant’s objection.

By a two count information, Darryl Jackson was charged with burglary of a structure and possession of burglary tools. At trial, the evidence showed that the police found Jackson inside an uninhabited duplex that had been boarded up and scheduled for demolition. One of the boards had been removed and a window was broken. Copper wire was on the ground around Jackson’s feet. Drywall had been ripped out. Jackson was wearing a tool belt containing pliers, screw drivers, and a hammer. After his arrest, the police read Jackson his Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). Jackson waived his rights and told the officers that he had been stripping copper wire, which he did not know was illegal. A representative of the building’s owner testified that Jackson did not have permission to be on the property or to salvage copper wire. The owner contracted for the building’s demolition and included salvage value in the contracts.

At the charge conference, the state requested that the trial court instruct the jury on attempted burglary. Jackson, who represented himself at trial, objected and requested that only trespass be charged as a lesser included offense. He argued that attempting “something” in this case was “just like doing it. There’s no lesser offense in that.” During closing, Jackson argued that he had committed a trespass, but not a

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burglary. After the trial court instructed the jury on attempted burglary, Jackson again objected to the instruction.

The jury found Jackson guilty of attempted burglary, as a lesser included offense, and possession of burglary tools.

Jackson correctly argues that the trial court erred in charging the jury on attempted burglary when there was no evidence to support the attempt.

In pertinent part, Florida Rule of Criminal Procedure 3.510 provides:

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:

(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense . . . .

(Emphasis added). Because of the rule’s express prohibition, the trial court does not have the discretion to instruct on an attempt where the only evidence proves a complete offense. See Wilson v. State, 635 So. 2d 16, 17 (Fla. 1994).

“Given the rule’s language, the first step in assessing the propriety of the trial court’s giving an attempted burglary instruction is ascertaining whether the evidence presented supported an attempt or, instead, only the commission of a completed crime.” Richardson v. State, 922 So. 2d 331, 333 (Fla. 4th DCA 2006). Here, the evidence established that Jackson was caught inside the house. The single contested issue was whether he entered the house with the intent to steal something. If his intent was to steal, then a burglary was committed. If Jackson entered just to look around, as he claimed at trial, then he committed a trespass. There was no evidence that Jackson attempted a burglary but did not complete it.

This case is similar to Pepitone v. State, 846 So. 2d 640 (Fla. 2d DCA 2003). There, the evidence was that Pepitone entered an apartment and went through some drawers. Id. at 641. Nothing was taken. Id. Pepitone objected to an attempted burglary instruction on the ground that the evidence established either a burglary or a trespass. Id. The

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second district held that instructing the jury on attempted burglary was error. Id. It explained that,

[n]ormally, an attempted burglary involves a person who attempts, but fails, to gain entrance to a dwelling, structure, or conveyance. See, e.g., Smith v. State, 588 So. 2d 654 (Fla. 2d DCA 1991); Cameron v. State, 214 So. 2d 370 (Fla. 2d DCA 1968); Davis v. State, 730 So. 2d 837 (Fla. 4th DCA 1999). It may be that Mr. Pepitone attempted unsuccessfully to steal something from the study, but it is undisputed that he successfully entered the condominium unit. If he did so with an intent to commit an offense, his crime was a completed burglary. See § 810.02, Fla. Stat. (1999). If he did so with no such intent, the crime was trespass. Attempted burglary simply is not a middle ground that exists between these two options in this case.

Pepitone, 846 So. 2d at 642-43. This case is distinguishable from Green v. State, 850 So. 2d 597 (Fla. 4th DCA 2003), relied upon by the state. In Green, unlike in this case, there was not a “total lack of evidence of the lesser offense.” Id. at 599 (citation omitted).

As did the second district in Pepitone, we reverse the attempted burglary conviction and remand with directions to enter a judgment and sentence for trespass. We find this case to be different than Richardson, involving a similar error on an attempt charge, where we remanded for a new trial. In that case, the entire conviction was reversed because of an improper closing argument by the prosecutor, which necessitated the new trial. Richardson, 922 So. 2d at 335-36.

In the other point raised, we find no error under Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), approved in Hardwick v. State, 521 So. 2d 1071, 1074-75 (Fla. 1988).

We reverse the attempted burglary conviction and remand for the trial court to enter a judgment and sentence for trespass.

WARNER and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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CLEMENT A. McDOWELL, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-3938.

District Court of Appeal of Florida, Second District.

Opinion filed January 20, 2010.

Appeal from the Circuit Court for Lee County, Edward J. Volz, Jr., Judge.

James Marion Moorman, Public Defender, and J.L. Perez, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Clement A. McDowell appeals the nonsummary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erred by proceeding with the evidentiary hearing without

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permitting McDowell an opportunity to be present at the hearing to present his testimony and to assist in cross-examination, we reverse and remand.

In ground one of his motion, McDowell contended that his plea to a violation of probation charge was involuntary because his former trial counsel misadvised him by telling him that two additional cases would be handled at the same time as the violation of probation charge and that adjudication would be withheld in all of the cases. He also alleged that once he confronted his trial counsel about the issue, his trial counsel withdrew from the case. McDowell’s second claim was that his trial counsel provided ineffective assistance by failing to raise existing issues below.¹

At the evidentiary hearing, McDowell’s postconviction counsel alerted the postconviction court that McDowell was not present due to the fact that he was in federal custody and that she had been unsuccessful in having him transported to the hearing. His postconviction counsel stated that she needed McDowell present for the hearing so that he could provide his testimony. The State agreed that if McDowell wanted to present testimony, he would need to be present at the hearing. Ultimately, however, the postconviction court proceeded with the hearing and took testimony from McDowell’s trial counsel. At the end of the hearing, McDowell’s postconviction counsel renewed her objection to having the evidentiary hearing proceed without McDowell’s presence.

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In denying McDowell’s motion, the postconviction court addressed the issue of McDowell’s presence by concluding that “[b]ecause the presence of a defendant is not always required, and the fact that [McDowell] was represented by counsel, who was able to confer with her client prior to the hearing, the Court has decided in its discretion that [McDowell's] presence was not required in this case.” The postconviction court also concluded that McDowell’s allegations were unambiguous and that his trial counsel had a clear recollection of the case.

On appeal, McDowell argues that the postconviction court erred by refusing to permit him an opportunity to be present to testify because there were disputed factual issues about which McDowell had personal knowledge. The State concedes error on this point.

Although the postconviction court correctly stated that a defendant’s presence is not always required at a rule 3.850 evidentiary hearing, a defendant should be given an opportunity to testify where there are questions of fact within the personal knowledge of the defendant. See Harrell v. State, 458 So. 2d 901, 902 (Fla. 2d DCA 1984); Eby v. State, 306 So. 2d 602, 603 (Fla. 2d DCA 1975); Smith v. State, 489 So. 2d 197, 198 (Fla. 1st DCA 1986). Further, by requiring the defendant’s presence in such a case, a postconviction court can ensure that the defendant will be able to assist postconviction counsel during the cross-examination of witnesses. See Harrell, 458 So. 2d at 902; Eby, 306 So. 2d at 603.

Here, McDowell’s trial counsel testified that while he initially discussed entering a plea in three different cases (including the violation of probation), McDowell refused to do so because it would require prison time and thus that McDowell chose to

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enter a plea solely to the violation of probation charge. Trial counsel also testified that while McDowell had adjudication withheld on the charge underlying the violation of probation, he [trial counsel] had no knowledge as to whether that would be maintained following the entry of McDowell’s plea to the violation charge itself.

While all of these facts may be true, such testimony contrasts with McDowell’s allegations in his rule 3.850 motion. Yet McDowell was neither permitted to present his own testimony in contradiction to trial counsel’s testimony nor was he given an opportunity to assist his postconviction counsel in cross-examining his trial counsel. Because there were disputed factual issues, the postconviction court’s failure to permit McDowell an opportunity to be present was an abuse of discretion.

We therefore reverse the postconviction court’s order and remand for a new evidentiary hearing. McDowell must be permitted an opportunity to be present at this hearing to testify and cross-examine his trial counsel concerning McDowell’s allegations that trial counsel misadvised McDowell about his plea and provided ineffective assistance by failing to raise certain issues below.

Reversed and remanded.

WHATLEY and CRENSHAW, JJ., Concur.

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

—————

Notes:

—————

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STATE OF FLORIDA, Appellant,
v.
ZAMBIA PELHAM, Appellee.

Case No. 2D08-5557.

District Court of Appeal of Florida, Second District.

Opinion filed January 20, 2010.

Appeal from the Circuit Court for Pinellas County, Philip J. Federico, Judge.

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

John A. Shahan, Tarpon Springs, for Appellee.

ALTENBERND, Judge.

The State appeals Zambia Pelham’s concurrent youthful offender sentences in circuit court cases CRC06-12364CFANO and CRC07-26854CFANO. Because Mr. Pelham committed the offenses in case 07-26854 after his twenty-first

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birthday, we must reverse and remand that case for resentencing. We affirm the youthful offender sentences imposed in case 06-12364.

Mr. Pelham was born in December 1985. In February 2006, when he was twenty years old, he was arrested and charged with two counts of sale of cocaine and two counts of possession of cocaine. He was released on bond. These charges resulted in case 06-12364. He pleaded guilty to these charges in August 2007. The trial court placed him on twenty-four months of drug offender probation.

When the trial court imposed this sentence, it did not know that Mr. Pelham had committed similar offenses in May 2007, after he turned twenty-one. He had not been arrested at the time of the May offenses. The State did not file an information in case 07-26854 charging Mr. Pelham with the new offenses until December 2007. He was arrested in December for these new offenses and once again was released on bond.

In May 2008, Mr. Pelham violated his drug probation curfew in case 06-12364. This time he was arrested and was not released on bond in that case. However, his bond was not revoked in case 07-26854. At a hearing in October 2008, he pleaded guilty to the new substantive offenses in case 07-26854 and to violating probation in case 06-12364.

At the hearing, Mr. Pelham’s scoresheet established a lowest permissible sentence of 23.85 months’ imprisonment. His attorney requested that he be sentenced as a youthful offender. The trial court noted that although Mr. Pelham had been in jail for about 170 days, he technically was only accruing jail credit in case 06-12364. The trial court expressed a desire for an “equitable score adjustment” because jail officials

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“should have come off the bond on the new charges [in case 07-26854],” allowing Mr. Pelham to accrue jail credit for all of his pending cases. The trial court then agreed to sentence Mr. Pelham as a youthful offender in both cases to eighteen months in prison with credit for 172 days of time served. The State objected and argued that Mr. Pelham did not qualify for sentencing as a youthful offender in case 07-26854 because he had committed the offenses after his twenty-first birthday and he was not entitled to jail credit on the charge where bond had not technically been revoked. The trial court overruled the State’s objection. On appeal, the State argues only that the sentence could not be imposed as a youthful offender sentence. We agree.

Section 958.04, Florida Statutes (2006), permits a trial court to sentence a defendant as a youthful offender if the crime was committed before the defendant turns twenty-one years old and the defendant otherwise meets the statutory requirements. Because Mr. Pelham committed the second offenses when he was twenty-one, he did not qualify for youthful offender treatment for those offenses. Therefore, it was improper for the trial court to impose a youthful offender sentence in case 07-26854.

We understand the trial court’s desire to impose sentences under a single sentencing statute, but unfortunately the law does not give it that discretion. At this point, it appears that the sentence in case 06-12364 has been fully served and that Mr. Pelham has already been released from prison in case 07-26854. The State nevertheless still has the right to require Mr. Pelham to be resentenced in case 07-26854.

Concerning the 172 days of jail credit, we would comment that it is not unusual for a person to end up in jail accruing jail credit in one case while still

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technically “released” on bond in another case emanating from the same county. This is normally the result of an oversight within the criminal justice system and not a matter of intent. We frequently see cases in which a trial judge exercises discretion, often with the complete cooperation of the State, to correct this technical problem by granting additional jail credit in the case where bond was not revoked. This act of discretion does not seem inappropriate to this court, and it eliminates a common source of difficult postconviction motions. Thus, while we mandate the trial court to impose a sentence under the criminal punishment code on remand, we are not reversing the award of jail credit that the State did not challenge on appeal.

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

NORTHCUTT and KELLY, JJ., Concur.

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

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Courtney Robinson, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-2129.

District Court of Appeal of Florida, Third District.

Opinion filed January 20, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Leonard E. Glick, Judge, Lower Tribunal No. 07-6340.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.

Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

SHEPHERD, J.

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This is a direct appeal by Courtney Robinson of his convictions and sentences for fleeing to elude a police officer and burglary with the intent to commit the offense of resisting an officer without violence. We find no merit to Robinson’s first point on appeal, that the trial court erred by denying his motion for judgment of acquittal on the fleeing to elude charge. On Robinson’s second point, we find the court erroneously imposed consecutive habitual felony offender sentences against the defendant, because the two crimes for which Robinson was found guilty arose out of the same criminal episode.

On February 7, 2007, at approximately 11:30 p.m., a Miami-Dade police officer encountered a suspicious vehicle with dark tinted windows in the area of 152nd Avenue and 288th Street in Naranja, Florida. The officer ran the tag on the vehicle and learned it was not assigned to the car he was following. He then decided to conduct a traffic stop and activated his overhead police lights. The driver of the vehicle, who turned out to be Robinson, accelerated and made an “erratic” turn into a residential neighborhood, requiring the officer to deactivate his police lights pursuant to a police rule prohibiting police chases in the neighborhood. Although the officer tried to follow Robinson, Robinson made several quick turns and lost the officer. A short time later, the officer rediscovered the vehicle, Robinson included, parked in front of a house next to a chain link fence. The officer re-activated his police lights as he approached Robinson’s car,

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prompting Robinson to exit the vehicle, jump over the fence and run. The officer pursued on foot, but again lost his suspect.

One street away, Robinson somehow gained access to a home occupied by two women who apparently were known to him. He did not have permission to enter the home. When asked to leave, he refused, stating the police were after him. After one of the women was able to contact the police, officers arrived, entered the house and found Robinson hiding inside a bedroom closet.

Robinson was found guilty of fleeing to elude a law enforcement officer, burglary with the intent to commit the offense of resisting an officer, resisting an officer without violence, and driving with a suspended license. The trial court sentenced Robinson as a habitual violent offender on the two felony counts, and imposed consecutive sentences of thirty years in prison for burglary, followed by ten years for fleeing to elude a police officer. He further was ordered to serve 364 days for resisting an officer and sixty days for driving with a suspended license concurrent to his felony terms. The trial court erred in imposing the consecutive sentences.

The Florida Supreme Court has long held a trial court is not authorized to enhance both the defendant’s sentences as a habitual offender and make each of the enhanced sentences consecutive when they arise out of the same criminal episode. Hale v. State, 630 So. 521, 525 (Fla. 1994). “There is . . . no bright line .

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. . for determining whether a criminal episode is single for purposes of evaluating consecutive enhancement sentences.” Wilcher v. State, 787 So. 2d 150, 152 (Fla. 4th DCA 2001); see also Roberts v. State, 990 So. 2d 671, 675 (Fla. 4th DCA 2008). Generally, the courts have considered whether separate victims are involved, whether the crimes occurred in separate locations, and whether there has been a temporal break between the incidents. Smith v. State, 650 So. 2d 689, 691 (Fla. 3d DCA 1995). In this case, we find the temporal break factor to be decisive. Although the crimes were separate crimes, committed against separate victims—a police officer and two women—at different locations, they are united by the defendant’s sole purpose to elude the police officer and committed within a short period of time in the same neighborhood. For this reason, we reverse and remand this case for re-sentencing.

Affirmed in part; reversed in part with directions.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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PETER L. BRINSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-3243.

District Court of Appeal of Florida, Second District.

Opinion filed January 20, 2010.

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

Peter L. Brinson, pro se.

ALTENBERND, Judge.

Peter L. Brinson appeals an order denying a postconviction motion entitled “Motion to Accept Rule 3.850 as Timely Filed.” We reverse and remand for further proceedings because the order on appeal does not contain adequate attachments from the record to support the order.

Mr. Brinson was tried by jury in 2001 and convicted of four counts of possession of cocaine and four counts of sale of cocaine. He is serving concurrent thirty-year sentences as a habitual offender for the four counts of sale of cocaine. This

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court affirmed his direct appeal in 2003, issuing mandate on February 25, 2003. Brinson v. State, 838 So. 2d 1154 (Fla. 2d DCA 2003) (table decision).

Since mandate issued in his direct appeal, Mr. Brinson has filed various postconviction motions.¹ In case number 2D03-5110, we reversed an order denying his first motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, and remanded for further proceedings. Brinson v. State, 873 So. 2d 505 (Fla. 2d DCA 2004). Following those proceedings, the motion was again denied and this court affirmed that denial in February 2005, issuing mandate on March 3, 2005. Brinson v. State, 896 So. 2d 753 (Fla. 2d DCA 2005) (table decision).

In the motion at issue in this appeal, Mr. Brinson claims he filed yet another motion for postconviction relief on January 12, 2005. He allegedly filed two notices of inquiry about this motion before receiving a response from the clerk of court in March 2009 notifying him that the clerk had no such motion on file. Shortly after he allegedly received this notice, he filed the motion to accept his rule 3.850 motion as timely filed. That motion is in our record. It asks the trial court to “consider this accompanying Rule 3.850 motion.” No such accompanying motion is in our record.

The trial court denied the motion to accept the earlier motion as timely, describing some of the earlier proceedings. This order has no attachments and we are not certain whether the trial court had an “accompanying motion” or not. The trial court denied the motion, claiming that it would have been without jurisdiction to consider this second motion if it had been filed in January 2005 because the order denying the first motion for postconviction relief was pending on appeal at that time. This ruling is at

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least an overstatement. A trial court has concurrent jurisdiction during the pendency of an appeal of a postconviction order to consider a second postconviction motion that raises new issues unrelated to the issues presented in the motion that is pending on appeal. See Wheeler v. State, 918 So. 2d 369 (Fla. 1st DCA 2005). We cannot tell from our record whether the motion allegedly filed in January 2005 would have properly invoked the trial court’s jurisdiction.

The trial court also denied the motion on the grounds that it would have been both untimely and successive. Mr. Brinson responded with a motion for rehearing, arguing that a motion in January 2005 would not have been untimely and that his grounds for relief involved newly discovered evidence that he received from his trial attorney shortly before he allegedly filed the motion in January 2005.

We are hampered by the fact that we have no copy of the motion allegedly filed in January 2005. We do not know whether the original or any copy exists either in the court records or Mr. Brinson’s personal records. Based exclusively on the record before us, we must assume that Mr. Brinson mailed a timely second postconviction motion to the court in January 2005 and that the motion contained new claims based on newly discovered evidence. The order on appeal without attachments does not refute those allegations or otherwise contain a legal basis to deny the motion to accept the second motion as timely filed.

Reversed and remanded for further proceedings.

NORTHCUTT and CRENSHAW, JJ., Concur.

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

—————

Notes:

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Courtesy of David Edelstein

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