Florida Criminal Law Opinions

MAXIMIUANO MENDEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-4047.

District Court of Appeal of Florida, Second District.

Opinion filed February 19, 2010.

Appeal from the Circuit Court for DeSoto County, James S. Parker, Judge.

James Marion Moorman, Public Defender, and John S. Fisher, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Maximiuano Mendez appeals his sentence of five years in prison imposed after the revocation of his probation for the offense of felony battery. We reverse and remand for further proceedings.

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Mendez originally pleaded no contest to the offense of felony battery in exchange for five years’ probation. An affidavit of probation was then filed charging Mendez with violating his probation by failing to report to the probation office upon his release from jail. At the beginning of the violation hearing, defense counsel stated:

And, Judge, just for the record, I did explain to my client what the State’s offer was. I explained to him that the Court’s one-day offer was not extended to him today.

The Court offered, as you may recall, three and a half years, the State offered him four. He understands that the maximum he could receive is five years. He does not score for prison if you look at the sentencing scoresheet.

With that in mind, he did appear to understand, to me at least, what the interpreter was telling him. He indicated that he did wish to have a hearing . . . .

The trial court confirmed with Mendez that Mendez was rejecting the State’s offer of four years and proceeding to an evidentiary hearing. After the evidentiary hearing, the trial court found Mendez in violation of his probation, adjudicated him guilty, and sentenced him to five years in prison.

During the pendency of this appeal, Mendez filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), claiming that his five-year sentence is punishment for exercising his right to an evidentiary hearing on the charged violation of probation. He stated that he sought a transcript of the plea discussions involving the trial court but found that no such record exists. The trial court did not rule on Mendez’s motion; therefore, it is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B), (b)(1)(B).

On appeal, Mendez asserts the same challenge to his sentence. He contends that a presumption of vindictiveness arose and that it was not rebutted by the

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record. He argues that he is entitled to resentencing by a different judge. Mendez recognizes that no objection was raised below at the sentencing hearing but asserts that the issue was preserved in his rule 3.800(b)(2) motion.

We first note that rule 3.800(b)(2) is not the proper mechanism for Mendez’s challenge to his sentence; such an error is not a “sentencing error” because it occurs during the sentencing process and is not an error in an order entered as a result of the sentencing process. See Jackson v. State, 983 So. 2d 562, 572, 574 (Fla. 2008); Hannum v. State, 13 So. 3d 132, 135 (Fla. 2d DCA 2009).¹ Our analysis does not end here, however, because imposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal. See McDonald v. State, 751 So. 2d 56, 58 (Fla. 2d DCA 2000).

“Appellate courts should look at the totality of the circumstances when determining whether a defendant’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations in which the trial court participated.” Harris v. State, 903 So. 2d 363, 366 (Fla. 2d DCA 2005) (citing Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003)).

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['s] 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 in violation

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of [State v. Warner, 762 So. 2d 507, 514 (Fla. 2000)]; (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.

Wilson, 845 So. 2d at 156 (footnote and citation omitted). “A presumption of vindictiveness arises where `there is a “reasonable likelihood” that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.’” Cambridge v. State, 884 So. 2d 535, 537 (Fla. 2d DCA 2004) (quoting Alabama v. Smith, 490 U.S. 794, 799 (1989)). The term vindictive—when used in the context of a claim of vindictive sentence—”is a term of art which expresses the legal effect of a given course of action, viewed objectively, and does not imply any personal animosity between the court and the defendant.” Harris, 903 So. 2d at 366.

In this case, the trial court’s plea offer appears to have been made off the record, in violation of the supreme court’s holding in Warner that “[a] record must be made of all plea discussions involving the court.” 762 So. 2d at 514. Without a complete record of the plea discussions, this court has no way of knowing with certainty the extent to which the trial court was involved in such discussions. See Harris, 903 So. 2d at 366 (reversing sentence because an unrebutted presumption of vindictiveness arose but recognizing that this court had “no way of evaluating the `totality of the circumstances’ of the court’s plea offer” where the trial court made the original plea offer off the record, in violation of Warner). However, it is clear from the record that the trial

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judge participated in plea negotiations by making an offer of three and one-half years in prison, and it appears that the trial court made its offer prior to the State’s offer, indicating that the trial court initiated the plea discussions.

The nature of the offer may have implied to Mendez that his ultimate sentence would hinge on his future choice to proceed to an evidentiary hearing. Mendez’s sentence is the maximum sentence permitted for the charged offense and is one and one-half years longer than that offered by the trial court prior to the violation hearing. See Longley v. State, 902 So. 2d 925, 928 (Fla. 5th DCA 2005) (holding that an imposed sentence of two and one-half years in prison was “much harsher” than the offered sentence of six months in jail). But see Mounds v. State, 849 So. 2d 1170, 1172 (Fla. 4th DCA 2003) (on motion for rehearing) (“[T]he disparity between the offer and the actual sentence, while significant, was not extreme, 105.25 months versus 60 months.”).

Last, there are no facts on the record that explain the trial court’s reason for imposing the increased sentence. Before imposing sentence, the trial court noted that the probable cause affidavit for the felony battery stated that Mendez “stabbed the victim in the back with a butcher knife.” However, this information did not come to light during the violation hearing but was part of the record existing before the hearing. See Cambridge, 884 So. 2d at 538 (holding that the presumption of vindictiveness remained unrebutted because the “record contain[ed] no explanation of the grounds for the sentence other than the nature of the crime committed, which generally was known to the court prior to the trial”).

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In light of the above circumstances, there is an unrebutted presumption that the harsher sentence was imposed because Mendez exercised his right to a violation hearing. See Harris, 903 So. 2d at 366; Pace v. State, 903 So. 2d 383, 384 (Fla. 2d DCA 2005) (reversing and remanding for resentencing because totality of the circumstances indicated a vindictive sentence: trial judge initiated plea discussions off the record, trial judge offered a twelve-year sentence but imposed a twenty-year sentence after trial, and nothing in the record explained the reason for the harsher sentence). Accordingly, we reverse and remand for resentencing before a different judge. See Wilson, 845 So. 2d at 159; Harris, 903 So. 2d at 366-67.

Reversed and remanded.

NORTHCUTT and KHOUZAM, 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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ORION HUNTER MANIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-615.

District Court of Appeal of Florida, Fifth District.

Opinion filed February 19, 2010.

Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

PALMER, J.

Orion Manis (defendant) appeals his judgments and sentences which were entered by the trial court after the court found him guilty of violating the terms of his probation. Although there was sufficient evidence presented by the State to support both claimed violations, we remand for the entry of a proper violation of probation (VOP) order.

The defendant was charged with violating two terms of his probation. Specifically, the defendant was charged with violating condition 5 by committing the new criminal

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offense of filing a false police report, and violating condition 7 by using the prescription medication Percocet without having a legal prescription. The matter proceeded to a VOP hearing during which the State presented ample evidence establishing both charges.

The trial court did not issue a written VOP or revocation order in this case. Rather, the court made verbal statements at the close of the VOP hearing. As to condition 7, the trial court made an express finding that the defendant violated that condition by using the prescription medicine Percocet without having a legal prescription. However, as to condition 5, the trial court verbally indicated that defendant violated condition 5, but did not make an express finding that the defendant had filed a false police report. Instead, the court made the following ambiguous statement:

You violated your probation in a substantial way and I’m sentencing you to — fifteen years in the Department of Corrections on Count I for the reasons I set forth in the record because there’s a substantial likelihood he was involved in a home invasion armed.

A trial court’s decision to revoke a defendant’s probation based on conduct not charged in the VOP affidavit violates due process and constitutes fundamental error. Wyns v. State, 679 So.2d 882 (Fla. 5th DCA 1996). In Cherington v. State, 34 Fla. L. Weekly D2552 (Fla. 2d DCA Dec. 11, 2009), the Second District explained:

“[A] trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation.” Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000); see also Butler v. State, 450 So.2d 1283, 1285 (Fla. 2d DCA 1984); Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003). To revoke probation based on conduct not charged in the affidavit constitutes a deprivation of the defendant’s right to due process of law. See Perkins, 842 So.2d at 277. A revocation based on uncharged conduct generally requires reversal.

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Here, the trial court’s verbal ruling is ambiguous and there is no written VOP order. This court has consistently held that a “trial judge must specify in the written order or judgment what conditions the defendant violated.” Mormon v. State, 976 So.2d 1188, 1189 (Fla. 5th DCA 2008). Accord Kadyebo v. State, 15 So.3d 928 (Fla. 5th DCA 2009); Young v. State, 4 So.3d 1265 (Fla. 5th DCA 2009). Accordingly, we vacate the defendant’s judgments and sentences, and remand this matter to the trial court for the entry of a proper VOP order setting forth the specific violations of probation.

VACATED and REMANDED.

GRIFFIN and JACOBUS, JJ., concur.

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VINCENT BILOTTI, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-2656.

District Court of Appeal of Florida, Second District.

Opinion filed February 19, 2010.

Appeal from the Circuit Court for Polk County, Dick Prince and Roger A. Alcott, Judges.

Jackson Stuart Flyte, Regional Counsel, Second District, and Jeffrey Sullivan, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Vincent Bilotti appeals the orders denying his motion for postconviction relief. We reverse the summary denial of relief as to one claim. In all other respects, we affirm.

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Bilotti filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in which he raised numerous claims of ineffective assistance of trial counsel. Although the motion was not a model of clarity, the postconviction court identified eleven separate grounds of ineffective assistance of counsel. Several of the grounds were either summarily denied or dismissed, and the remaining grounds were denied following an evidentiary hearing. Bilotti’s appellate counsel challenges only the summary denial of relief on ground eleven. He argues that this claim was facially sufficient and that the postconviction court failed to attach any portions of the record that conclusively refuted the claim. The State concedes error with respect to a portion of the claim raised in ground eleven.

The postconviction claim at issue related to Bilotti’s conviction for burglary of a dwelling. The postconviction court narrowly read Bilotti’s claim to be that trial counsel failed to argue Bilotti’s intent to commit the burglary. The postconviction court summarily denied relief reasoning that the State had the burden to establish the essential elements of the offense and that defense counsel, thus, was not required to argue intent. The postconviction court added that such an argument by defense counsel would have helped the State to convict Bilotti. To this extent, the postconviction court’s summary denial of relief was correct. However, Bilotti argues, and the State agrees, that ground eleven included additional assertions that could be read as a claim that Bilotti’s attorney was ineffective in failing to attack the lack of evidence of Bilotti’s intent to commit an offense once he entered the victim’s residence.

Generally, in order to prove burglary of a dwelling, there must be evidence to support a finding that the defendant entered or remained in a dwelling with the intent

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to commit an offense therein. See § 810.02, Fla. Stat. (2002)¹ (emphasis added). See also Davis v. State, 736 So. 2d 27, 27-28 (Fla. 4th DCA 1999) (addressing essential elements of the offense in the context of jury instructions for attempted burglary). Bilotti may be entitled to postconviction relief if the evidence presented at his trial did not support the foregoing finding and if such a deficiency went unchallenged by trial counsel. The State acknowledges that in summarily denying relief, the postconviction court did not address this aspect of Bilotti’s claim and it did not attach any portions of the record that would refute the claim. The State concedes that this matter must be reversed and remanded as to this aspect of Bilotti’s claim.

Accordingly, we reverse the portion of the order summarily denying relief on this facet of Bilotti’s claim, and we remand this matter to the postconviction court with directions to attach portions of the record that conclusively refute this claim or to schedule an evidentiary hearing. Additionally, we note that in counsel’s appellate brief there are no assertions of any error as to the denial of Bilotti’s remaining grounds. The State, in its answer brief, argues that any error as to the postconviction court’s rulings on the remaining grounds has been waived because Bilotti has not challenged those rulings in this appeal. Bilotti’s appellate counsel did not reply to the State’s additional argument or seek to file a supplemental brief to address any purported error in regard to Bilotti’s remaining grounds. Because Bilotti asserts no error as to those grounds, we agree that he abandoned and waived any claim of error relating to those grounds. We

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thus affirm the orders in all other respects.

Affirmed in part, reversed in part, and remanded with directions.

KELLY and VILLANTI, JJ., Concur.

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

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Notes:

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

Case No. 1D08-2630.

District Court of Appeal of Florida, First District.

Opinion filed February 18, 2010.

An appeal from the Circuit Court for Duval County, Henry E. Davis, Judge.

Jeffrey Lewis, Regional Conflict Counsel, Jacksonville; Laura Anstead, Assistant Conflict Counsel, and Sheila Callahan, Assistant Conflict Counsel, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

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N.S. appeals a final disposition order which withheld adjudication of delinquency and a restitution order requiring restitution in the amount of $5,217.49. We reverse the restitution order and remand for further proceedings.

Although the trial court advised N.S. at the disposition hearing (at which the state presented its restitution evidence) of his right to have counsel appointed, the trial court failed to obtain the necessary written waiver. See Fla. R. Juv. P. 8.165(a) (“This waiver shall be in writing.”). Nor is there any indication that N.S. discussed the pros and cons of waiver with counsel. Cf. Tucker v. State, 559 So. 2d 218, 220 (Fla. 1990) (allowing adult to waive jury trial orally on the record after consultation with counsel despite rule requiring written waiver). Florida Rule of Juvenile Procedure 8.165(a) now provides: “Waiver of counsel can occur only after the child has had a meaningful opportunity to confer with counsel regarding the child’s right to counsel, the consequences of waiving counsel, and any other factors that would assist the child in making the decision to waive counsel.”

N.S.’s mother did not verify in writing that she had discussed waiving counsel with N.S. or that his decision to do so appeared to her to be knowing and voluntary. See Fla. R. Juv. P. 8.165(b)(3) (“If the child is entering a plea to or being tried on an allegation of committing a delinquent act, the written waiver shall also be submitted to the court in the presence of a parent, legal custodian,

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responsible adult relative, or attorney assigned by the court to assist the child, who shall verify on the written waiver that the child’s decision to waive counsel has been discussed with the child and appears to be knowing and voluntary.”). No other qualified adult was present or verified “on the written waiver that the child’s decision to waive counsel” had been made voluntarily after discussion with a qualified adult.

Because the trial court withheld adjudication, placed the appellant on probation and subsequently entered an order terminating his supervision, reversal of the final disposition order is not warranted. See Edwards v. State, 765 So. 2d 222, 222 (Fla. 2d DCA 2000) (“While appellant is correct, and we would normally remand for resentencing pursuant to Smith v. State, 761 So. 2d 419 (Fla. 2d DCA 2000), this issue has been made moot by appellant’s release from incarceration on March 10, 2000.”). N.S. does not on appeal challenge the antecedent finding (at the adjudicatory hearing) that he committed battery.

We therefore reverse only the restitution order and remand for a new restitution hearing.

KAHN and ROBERTS, JJ., CONCUR.

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

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HENRY E. JACKSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-4031.

District Court of Appeal of Florida, First District.

Opinion filed February 18, 2010.

An appeal from the Circuit Court for Okaloosa County, William F. Stone, Judge.

Henry E. Jackson, pro se, Appellant.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.

PER CURIAM.

The appellant appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm grounds one and two of the appellant’s motion without further discussion. However, we hold that the appellant’s claim that he was incompetent to enter a plea and that counsel was

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ineffective for failing to investigate the appellant’s competency or request a competency determination¹ is facially sufficient. Specifically, the appellant alleges that he was incompetent and did not understand the consequences of his plea, that he had a history of mental illness, had not taken his schizophrenia medication, was suffering from delusions and hearing voices at the time of the plea and that he informed counsel of his condition. Cf. Schultheis v. State, 12 So. 3d 811, 812 (Fla. 1st DCA 2009) (“A narrow argument that counsel was ineffective for failing to raise the competency issue, however, is cognizable in the postconviction posture”); Coker v. State, 978 So. 2d 809 (Fla. 1st DCA 2008) (recognizing the failure to raise a defendant’s alleged incompetency as a ground for asserting ineffective assistance of counsel); Luckey v. State, 979 So. 2d 353, 354 (Fla. 5th DCA 2008) (holding that claim that counsel was ineffective for allowing defendant to proceed while incompetent was facially insufficient where defendant did not allege “he actually was incompetent to proceed to trial or insane at the time of his offense”). The plea colloquy attached by the trial court does not refute the appellant’s claim as the appellant’s mental competency was never addressed. We reverse and remand for the trial court to hold an evidentiary hearing on this claim.

AFFIRMED in part and REVERSED and REMANDED in part for further proceedings.

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DAVIS and BENTON, JJ., and BERGER, WENDY, ASSOCIATE JUDGE, CONCUR.

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

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Notes:

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EARL J. SHAW, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-1247.

District Court of Appeal of Florida, First District.

Opinion filed February 18, 2010.

An appeal from the Circuit Court for Okaloosa County, Keith Brace, Judge.

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

Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

This is an appeal from an order entered after a jury trial committing appellant as a sexually violent predator under section 394.917, Florida Statutes (2008). On appeal, appellant argues that no competent substantial evidence supports a conclusion that he was “likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” § 394.912(10)(B), Fla. Stat. (2008). We affirm.

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After an appropriate finding of probable cause, this case proceeded to a jury trial for civil commitment under the directives of section 394.9155, Florida Statutes (2008). Notwithstanding that such a proceeding is civil in nature, Westerheide v. State, 831 So. 2d 93 (Fla. 2002), and governed by the Florida Rules of Civil Procedure, see section 394.9155(1), Florida Statutes (2008), counsel for Mr. Shaw, at the conclusion of the State’s case, purported to “raise a JOA [Judgment of Acquittal] motion.” The motion for judgment of acquittal is, of course, appropriate in a criminal case under Florida Rule of Criminal Procedure 3.380(a), but a motion for directed verdict applies in a civil proceeding under Florida Rule of Civil Procedure 1.480. Even assuming that use of the nomenclature JOA would not be a procedural bar, we note that, far from actually making such a motion, defense counsel proceeded to state “the State has covered all the basic elements. . . .” Such a motion preserved nothing. See Roeling v. State, 880 So. 2d 1234 (Fla. 1st DCA 2004). Even were we to reach the merits, “the evidence was more than sufficient to permit the jury to find as it did.” Id. at 1236.

Accordingly, the order of commitment is AFFIRMED.

KAHN, BENTON, and ROBERTS, JJ., CONCUR.

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

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JAVIER DEJESUS VENTURA, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. SC08-483.

Supreme Court of Florida.

February 18, 2010.

Application for Review of the Decision of the District Court of Appeal — Direct Conflict of Decisions Third District — Case No. 3D05-872, (Dade County).

Carlos J. Martinez, Public Defender, Roy A. Hiemlich and Andrew Stanton, Assistant Public Defenders, Eleventh Judicial Circuit, Miami, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau Chief, Angel L. Fleming and Rolando A. Soler, Assistant Attorneys General, Miami, Florida, for Respondent.

PER CURIAM.

We have for review Ventura v. State, 973 So. 2d 634 (Fla. 3d DCA 2008), in which the Third District Court of Appeal affirmed the admissibility of a Department of Corrections release-date letter as a permissible means of establishing the defendant’s status as a prison-releasee reoffender. See id. at 638. In the process, the Third District relied upon the reasoning and rule of law articulated in Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006) (en banc) (Yisrael I), disapproved in part, 993 So. 2d 952 (Fla. 2008). See Ventura, 973 So. 2d at 638. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we (1) approved the decision of the First District in Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So. 2d 952, 960-61 (Fla. 2008) (Yisrael II). We then accepted jurisdiction in this case to resolve the conflict between Ventura and the decisions of this Court in Yisrael II and State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

With regard to the Yisrael issue, the Third District relied upon the rule articulated in Yisrael I to erroneously state that a Department of Corrections (DOC) release-date letter standing alone is admissible under the public-records exception to the hearsay rule to establish a defendant’s criminal history for the purposes of imposition of a prison-releasee-reoffender sentence. This Court disapproved that rule in Yisrael II. However, upon review of the appellate record, it is clear that, although not reflected in the opinion of the Third District, the trial court was actually supplied with a signed release-date letter, written under seal, and an attached Crime and Time Report. In Yisrael II, we held that these DOC records can together be used to render the entire report admissible as a public record. See Yisrael II, 993 So. 2d at 960-61 (approving usage of the signed release-date letter, written under seal, as authentication of an attached Crime and Time Report); see also §§ 90.803(6), 90.902(11), Fla. Stat (2003). Further, Ventura concedes that both documents (i.e., the signed release-date letter under seal and the Crime and Time Report) were provided to the trial court. Accordingly, as we did in Yisrael II, we approve the ultimate result reached by the Third District Court of Appeal below because the signed and under seal release-date letter provided in this case was used as a permissible means of authenticating an attached Crime and Time Report, but disapprove its reliance upon the rule expressed in Yisrael I. See Yisrael II, 993 So. 2d at 960-61; see also Smith v. State, 990 So. 2d 1162, 1164-65 (Fla. 3d DCA 2008); Parker v. State, 973 So. 2d 1167, 1168-69 (Fla. 1st DCA 2007), review denied, 1 So. 3d 173 (Fla. 2009).

Next, the district court improperly utilized an “overwhelming evidence” test when considering whether the impermissible testimony of a witness which clearly undermined and violated the Fifth Amendment right to remain silent constituted harmless error. Unlike some evidentiary errors, such as the admission of a cumulative or irrelevant photograph, a comment on the right to remain silent strikes at the heart of our criminal justice system. This Court has clearly stated that it is constitutional error to penalize an individual for exercising the Fifth Amendment privilege; therefore, the prosecution may not introduce during trial the fact that an individual has relied upon this protection in the face of accusation. See Simpson v. State, 418 So. 2d 984, 984-85 (Fla. 1982) (quoting Jones v. State, 200 So. 2d 574, 576 (Fla. 3d DCA 1967)); see also DiGuilio, 491 So. 2d at 1131. As we stated in DiGuilio:

It is clear that comments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict and that an appellate court, or even the trial court, is likely to find that the comment is harmful under Chapman [v. California, 386 U.S. 18 (1967)]. 491 So. 2d at 1136-37. Accordingly, commenting on the silence of an accused is not a viable strategy for obtaining convictions, and any comment—direct or indirect—by anyone at trial on this right is constitutional error that should be avoided. See DiGuilio, 491 So. 2d at 1136, 1139.

During the trial proceedings below, a detective made two comments with regard to Ventura’s silence, as follows:

A. Along with the victims, the defendant’s [sic] wouldn’t give any statements.

. . . .

A. Yes. The suspects were in custody and the defendant then declined to make statements.

(Emphasis supplied.) The Third District determined that the comments were improper and stated: “We fail to see how the detective’s comment, twice repeated, could have been anything other than an intentional cheap shot at Ventura’s constitutional rights.” Ventura, 973 So. 2d at 637. The court clearly and correctly recognized the egregious conduct. However, the district court then held that the error was “harmless beyond a reasonable doubt given the overwhelming evidence of guilt.” Id.

Unfortunately, the Third District expressed an incorrect harmless error analysis. In DiGuilio, we fully explicated the application of the harmless error doctrine to a comment on a defendant’s right to remain silent. In doing so, we explicitly expressed that the harmless error analysis is not an “overwhelming-evidence test.” DiGuilio, 491 So. 2d at 1139.

[H]armless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence. . . .

Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution’s case may have played a substantial part in the jury’s deliberation and thus contributed to the actual verdict reached, for the jury may have reached its verdict because of the error without considering other reasons untainted by error that would have supported the same result.

. . . .

The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict. . . .

. . . .

. . . The test must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review. The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. 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.

DiGuilio, 491 So. 2d at 1136, 1138-39 (citations omitted) (emphasis supplied) (quoting People v. Ross, 429 P.2d 606, 621 (Cal. 1967) (Traynor, C.J., dissenting), rev’d, 391 U.S. 470 (1968)).

Since restating the test in DiGuilio, this Court has provided further guidance on the correct analysis of harmless error. For example, in Rigterink v. State, 2 So. 3d 221 (Fla. 2009), petition for cert. filed, 77 U.S.L.W. 3563 (U.S. Mar. 31, 2009) (No. 08-1229), this Court discussed and applied the harmless error analysis in a circumstance where competent, substantial evidence supported the convictions, but the record did not demonstrate beyond a reasonable doubt that the error did not contribute to the verdict.

In sum, the evidence suggests that Rigterink has entangled himself in a web of deceit and these circumstances may indicate guilt. However, our harmless-error test is not guided by a sufficiency-of-the-evidence, correct-result, not-clearly-wrong, substantial-evidence, more-probable-than-not, clear-and-convincing, or overwhelming-evidence test. If any of these were the proper test, we might agree that the admission and publication of Rigterink’s videotaped interrogation constituted harmless error. The simple answer to the simple question of whether there is competent, substantial evidence to support the charges that Rigterink committed these crimes is “Yes.” However, the actual question that we must ask—and the constitutional protection that we must address—are not so simple. We have specifically rejected sufficiency-of-the-evidence approaches through our decision in DiGuilio, and we will not recede from established precedent by, on the one hand, paying lip service to its requirements and then, on the other, employing reasoning that would be clearly contrary to the pertinent legal standard. . . .

Under a proper analysis, we conclude that the jury most assuredly, and very seriously, considered and substantially included Rigterink’s videotaped interrogation in reaching its verdicts. Therefore, the erroneous publication and admission of this videotape during Rigterink’s capital trial “contributed to” his convictions. . . . [W]e reverse Rigterink’s convictions and sentences and remand for a new capital trial during which this videotape is excluded. This is not because Rigterink is innocent; rather, it is because the rules established to guard fundamental constitutional protections were not followed, and, under these facts, we cannot say that the videotape—which should have been suppressed based upon proper legal analysis—did not “contribute to” his convictions. The murders committed in this case were horrific, gruesome, and worthy of condemnation; moreover, there is evidence to support the verdicts returned by the jury. However, the rule of law must prevail and we must not allow the ends of punishment to trump the means that our state and federal Constitutions require.

. . . .

We are not nor do we consider ourselves a super-jury; rather, we are an appellate tribunal charged with the task of determining “whether there is a reasonable possibility that the error affected the verdict.” If such a possibility exists, it is our duty to remand for a new trial, which shall be free from the offending error. The test is not whether the jury reached what we believe to be the correct result but is, instead, whether a reasonable possibility exists that the constitutional violation contributed to the defendant’s convictions.

Id. at 255-57 (citations omitted) (some emphasis supplied) (quoting DiGuilio, 491 So. 2d at 1139).

The district court noted only one factor in the harmless error analysis (i.e., permissible evidence of guilt), but that one factor is not the determinative test. We have explicitly rejected the overwhelming evidence test as a proper analysis of harmless error. Specifically, the decision of the Third District does not address a proper analysis and does not discuss whether there is a reasonable possibility that the constitutional error affected the verdict. Our colleague in dissent suggests that our decision is based on an erroneous assumption that the district court failed to give consideration to the correct harmless error analysis. We cannot assume that an analysis was conducted or review that which remains hidden behind the written opinion. In other words, the decision does not reflect any consideration by the appellate court of whether the impermissible comments contributed to the conviction, as required in an analysis of harmless error. Instead, as written, the appellate court appears to have “substitute[d] itself for the trier-of-fact by simply weighing the evidence” instead of focusing on the “effect of the error on the trier-of-fact.” DiGuilio, 491 So. 2d at 1139 (emphasis supplied). It is important for the test to be “conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review.” Id.

The harmless error rule functions to conserve judicial labor while providing an “equal degree of protection for the constitutional right to a fair trial, free of harmful error.” Id. at 1135. The analysis of the impermissible comments in the decision below and the announced principle of law does not demonstrate this balance.

Accordingly, we quash and remand to the Third District Court of Appeal for reconsideration upon application of our decision in DiGuilio. In addition, we approve the ultimate result reached by the Third District on the Yisrael issue, but disapprove its analysis and reasoning based upon the rule expressed in Yisrael I.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

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

CANADY, J., dissenting.

I disagree with the majority’s decision to quash and remand the decision of the Third District Court of Appeal. On the Yisrael¹ issue, the majority recognizes that the Third District reached the correct result. On that basis, I would discharge jurisdiction on the Yisrael issue. For the reasons I will explain, I would also discharge jurisdiction on the DiGuilio² issue.

With respect to the DiGuilio issue, I disagree with the majority’s conclusion that “the district court improperly utilized an `overwhelming evidence test’” and therefore “expressed an incorrect harmless error analysis.” Majority op. at 3-4. This is not a case in which the appellate court failed to acknowledge the DiGuilio standard. The Third District accurately stated the DiGuilio standard: “The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.” Ventura v. State, 973 So. 2d 634, 637 (Fla. 3d DCA 2008) (emphasis added) (quoting DiGuilio, 491 So. 2d at 1138).

Notwithstanding this express and correct acknowledgement of the DiGuilio standard by the Third District, the majority here concludes that the Third District’s decision “does not reflect any consideration by the appellate court of whether the impermissible comments contributed to the conviction.” Majority op. at 8. For the majority to reach that conclusion, it must assume that the district court failed to give any consideration to the precise test which the district court stated as the governing test. Such an assumption is unwarranted.

In condemning the district court’s reference to “overwhelming evidence,” the majority condemns an element of harmless error analysis which this Court itself has repeatedly employed. In numerous cases, we have expressly relied on the existence of overwhelming evidence of guilt in reaching the conclusion that an error was harmless. See, e.g., Hojan v. State, 3 So. 3d 1204, 1210 (Fla. 2009) (“Based on this other extensive evidence, we conclude that even if admission of the statement was error, it was harmless error.”), cert. denied, 78 U.S.L.W. 3319 (U.S. Nov. 30, 2009) (No. 09-5780); Fitzpatrick v. State, 900 So. 2d 495, 517 (Fla. 2005) (stating in harmless error analysis that “[t]here was overwhelming permissible evidence of Fitzpatrick’s guilt”); Hutchinson v. State, 882 So. 2d 943, 952 (Fla. 2004) (stating in harmless error analysis that improperly admitted “testimony adds little, if anything, to the overwhelming evidence of guilt”); Walton v. State, 847 So. 2d 438, 448 (Fla. 2003) (“Clearly, taken in conjunction with the presence of the overwhelming evidence before the court supporting its conclusions as to Walton’s leadership role in the burglary planning, this mistaken statement by the trial court within its final order was harmless.”); Chavez v. State, 832 So. 2d 730, 754, 762 (Fla. 2002) (stating that “given the overwhelming evidence of Chavez’s guilt, the error in admitting his last confession would be harmless” and stating that “[g]iven the overwhelming evidence of Chavez’s guilt, on this record, there is no possibility that admission of the [bloody] mattress contributed to the outcome of the proceedings”); Henyard v. State, 689 So. 2d 239, 248 (Fla. 1996) (relying in harmless error analysis on conclusion that “the other evidence presented at trial of Henyard’s guilt was extensive and overwhelming”).

There is no question that “overwhelming evidence” cannot be the alpha and omega of harmless error analysis. Chapman v. California, 386 U.S. 18, 23 (1967)—which articulated the harmless error standard from which the DiGuilio standard was derived—itself questioned the California courts’ “emphasis, and perhaps overemphasis, upon the court’s view of `overwhelming evidence.’” Nonetheless, in Harrington v. California, 395 U.S. 250, 254 (1969), the Court concluded that the erroneous admission of the confessions of codefendants who did not take the stand was harmless beyond a reasonable doubt under the Chapman standard because “apart from [those confessions] the case against Harrington was so overwhelming.” See also Schneble v. Florida, 405 U.S. 427, 431 (1972) (referring in harmless error analysis to “overwhelming” “independent evidence of guilt”).

In determining whether beyond a reasonable doubt an error did not contribute to a guilty verdict, the weight of the properly admitted evidence must be evaluated. The United States Supreme Court has recognized that in harmless error analysis, an error must “be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 308 (1991) (emphasis added). Likewise, in DiGuilio we acknowledged the required “analysis of the strength and nature of the permissible evidence of guilt and of the strength and nature of the impermissible” matters presented to the jury. 491 So. 2d at 1137 (emphasis added). A conclusion that the properly considered evidence of guilt is overwhelming may naturally flow from such a quantitative assessment or analysis of the strength and nature of the evidence.

As the precedents mentioned above amply demonstrate, a reviewing court’s reference to overwhelming evidence of guilt does not establish that the court employed an incorrect test for harmless error. I therefore dissent from the majority’s application of a requirement which is inconsistent with the precedents of this Court.

POLSTON, J., concurs.

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Notes:

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Courtesy of David Edelstein

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WAYNE SOLANO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-5580.

District Court of Appeal of Florida, First District.

Opinion filed February 18, 2010.

An appeal from the County Court for Duval County, Roberto Arias, Judge.

David M. Robbins and Susan Z. Cohen, of Epstein & Robbins, Jacksonville, for Appellant.

Bill McCollum, Attorney General and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.

WETHERELL, J.

In May 1978, Appellant pled no contest to two misdemeanors: driving with an unlawful blood alcohol level and reckless driving. Appellant was ordered to pay $135 in fines and $4 in court costs. No jail time, probation, or community

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service was imposed. Over 30 years later, on June 6, 2008, Appellant filed a motion in the Duval County Court to vacate and set aside his 1978 plea and sentence on the ground that the Judgment and Sentence was “constitutionally infirm” because it “shows that the [Appellant] was not represented by counsel and does not indicate a waiver of counsel.”

The county court properly treated the motion as a claim for postconviction relief under Florida Rule of Criminal Procedure 3.850. See Wood v. State, 750 So. 2d 592 (Fla. 1999). The court denied the motion as untimely, and certified the following question of great public importance to us:

Do the time limitations contained in Criminal Rule of Procedure 3.850(b) apply to motions to set aside pleas and sentences based upon the grounds that the pleas were either obtained in violation of the defendant’s right to counsel or that were taken without the required judicial inquiries mandated by Faretta v. California and the rules of criminal procedure when defendants waived their right to counsel?

The county court’s order indicated that at least two Fourth Judicial Circuit Court orders have found that the time limits in rule 3.850(b) do not apply in circumstances such as this case. The order also indicated that this issue is being “repeatedly litigated” in Duval County.

We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4) and 9.160, and in order to track Appellant’s specific arguments more closely, we rephrase the certified question as follows:

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Whether a conviction procured without affording the accused the right to counsel or without securing from the accused a proper waiver of the right to counsel is void and may therefore be collaterally attacked at any time, the time limits of Florida Rule of Criminal Procedure 3.850(b) notwithstanding.

We answer the rephrased certified question in the negative.

For purposes of answering the certified question, we assume that Appellant was indigent in 1978 and that he had a right to counsel in the underlying case. The state does not challenge Appellant’s argument that he had a right to counsel in the 1978 case, and our supreme court has held that indigent defendants have a right to counsel in all prosecutions, including misdemeanors, unless the trial judge provides written pretrial certification that the defendant will not be imprisoned for the charged offense. See State v. Kelly, 999 So. 2d 1029 (Fla. 2008);¹ see also Fla. R. Crim. P. 3.111(b)(1) (1977). We also assume that Appellant did not knowingly and intelligently waive his right to counsel because the record (such that it is) does not refute the implicit claim in Appellant’s motion that he did not.

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The record is silent as to why Appellant is seeking to vacate the Judgment and Sentence 30 years later. There is no indication that this prior conviction is being used to enhance a subsequent DUI prosecution, which would directly implicate the supreme court’s decisions in Kelly, State v. Beach, 592 So. 2d 237 (Fla. 1992), and Hlad v. State, 585 So. 2d 928 (Fla. 1991). Instead, this case appears to be nothing more than a straightforward collateral attack on Appellant’s 1978 conviction, which is governed by rule 3.850.

Turning to the certified question, we start with the general proposition that a motion for postconviction relief must be filed within two years after the judgment and sentence become final. Fla. R. Crim. P. 3.850(b).² “After the time for filing 3.850 motions has passed, the State’s interests in finality are more compelling.” State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005); see also McCrae v. State, 437 So. 2d 1388, 1391 (Fla. 1983) (Alderman, C.J., concurring specially) (calling for a time limit for filing postconviction motions “[i]n order to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice”).

This case highlights the importance of a time limit for filing postconviction motions. The only surviving document from the 1978 proceeding is the two-page Judgment and Sentence. Whatever other record or transcript of the proceeding that

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was made no longer exists. It is unlikely that anyone involved in the case other than Appellant has any recollection of the case and, therefore, it would likely be impossible to determine with any certainty at this point whether the trial court filed the statement required by rule 3.111(b)(1) (1977) or whether Appellant was properly advised of and waived his right to counsel. Cf Kelly, 999 So. 2d at 1060 (Wells, J., dissenting) (discussing the problems created by the court’s precedents allowing prior DUI convictions to be collaterally attacked in a subsequent DUI case “many years after the conviction when there is no transcript of what occurred”).

Appellant argues that the two-year time limit does not apply to his motion because the 1978 judgment is “void,” and a void judgment may be collaterally attacked at any time. Appellant argues that the judgment is void because the record does not show that he knowingly and intelligently waived his right to counsel, or that the trial court conducted a Faretta³ inquiry back in 1978, and that therefore the trial court lacked jurisdiction to proceed. Appellant cites Johnson v. Zerbst, 304 U.S. 458 (1938) in support, and quotes this passage specifically:

If this requirement of the Sixth Amendment [to provide counsel to the accused unless intelligently waived] is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void . . . .

Id. at 468.

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This statement was made at a time when the U.S. Supreme Court construed the scope of federal habeas relief to be limited to claims based upon the trial court’s lack of jurisdiction. Four years after Johnson, in Waley v. Johnston, 316 U.S. 101 (1942), the Court “openly discarded the concept of jurisdiction, by then more a fiction than anything else . . . .” Wainwright v. Sykes, 433 U.S. 72, 79 (1977). Thereafter, although uncounseled conviction claims could still be raised in federal habeas proceedings, see Custis v. U.S., 511 U.S. 485, 496 (1994), it was no longer necessary for these claims to be characterized as involving a jurisdictional issue; and, although the Court’s more recent decisions have made clear that certain uncounseled convictions lack the reliability necessary to impose imprisonment or to enhance a sentence in a subsequent proceeding, those decisions do not suggest that uncounseled convictions are “void” for a lack of jurisdiction. See Nichols v. U.S., 511 U.S. 738 (1994) (overruling Baldasar v. Illinois, 446 U.S. 222 (1980)). Accord Kelly, 999 So. 2d at 1042-50; Allen v. State, 463 So. 2d 351, 358-59 (Fla. 1st DCA 1985). Thus, whatever merit Appellant’s argument that the court lacked jurisdiction to sentence him may have had under Johnson, that argument is now baseless.

In Weir v. State, the Second District considered a case with similar facts and came to the same conclusion as we do in this case. 319 So. 2d 80 (Fla. 2d DCA 1975). In Weir, the defendant was found guilty of grand larceny in 1943, and in

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1975 moved to vacate the judgment because the court failed to advise him of his right to counsel. The court rejected the argument that the conviction was void, finding the position “difficult to sustain since the sentencing court obviously had jurisdiction over the subject matter and the appellant.” Id. at 81. The court did remand for an evidentiary hearing on the merits of defendant’s claim (and the state’s defense of laches), id. at 81-82, but, at the time, there was no time limit for seeking a writ of coram nobis. Now, there is. See Wood, 750 So. 2d at 594 (limiting claims cognizable under coram nobis to the time limit in rule 3.850).

In sum, we conclude that even if Appellant was denied his right to counsel in the 1978 proceeding, the judgment and sentence in that case are not “void” as a result and subject to collateral attack 30 years later. Accordingly, we answer the rephrased certified question in the negative, and affirm the county court’s order denying Appellant’s motion for postconviction relief as untimely under rule 3.850(b).

AFFIRMED.

KAHN and LEWIS, JJ., CONCUR.

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

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Notes:

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Courtesy of David Edelstein

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Serge Jean, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-2419.

District Court of Appeal of Florida, Third District.

Opinion filed February 17, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces, Judge, Lower Tribunal No. 07-3980.

Gennaro Cariglio, Jr., for appellant.

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

Before RAMIREZ, C.J., and ROTHENBERG and LAGOA, JJ.

LAGOA, J.

Serge Jean (“Jean”) appeals from convictions and sentences for escape, felony possession of methamphetamine and cocaine, and misdemeanor possession

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of marijuana. Because the trial court abused its discretion in limiting defense counsel’s closing argument, we reverse the convictions, vacate the sentences and remand for a new trial.

I. FACTUAL AND PROCEDURAL HISTORY

The charges against Jean stem from an incident during which an officer, who stopped to investigate Jean and several others standing in front of a house, observed Jean discard drugs on the ground. Jean was arrested, handcuffed and placed in the back seat of a police car for transport to the police station. During transport, the car door opened and Jean either fell or jumped from the car. The officer stopped the car and told Jean not to move. Instead, Jean got up and ran away. Approximately ten minutes later Jean was returned to custody.

Jean testified at trial and presented his version of the events, including his denial that he possessed drugs or threw them on the ground. Jean further explained the circumstances under which he fell from the car and why he ran from the officer. During closing argument, defense counsel attempted to argue that it was within the province of the jury to determine whether Jean was in lawful custody for the purpose of the escape charge.¹ The trial court, however, sustained the State’s

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objection and did not permit the defense to proceed with this argument. Jean was found guilty of the escape and possession charges, and this appeal ensued.

II. ANALYSIS

On appeal, Jean argues that the trial court improperly prohibited defense counsel’s closing argument concerning lawful custody. We agree. “The purpose of closing argument is to help the jury understand the issues presented in a case by applying the evidence to the applicable law.” Goodrich v. State, 854 So. 2d 663, 664 (Fla. 3d DCA 2003). Counsel should be permitted to present all legitimate arguments. See Thomas v. State, 748 So. 2d 970, 984 (Fla. 1999); Rogers v. State, 844 So. 2d 728, 733 (Fla. 5th DCA 2003). In so doing, the trial court must afford counsel wide latitude in presenting the closing argument. See Ford v. State, 802 So. 2d 1121 (Fla. 2001); Williams v. State, 912 So. 2d 66 (Fla. 4th DCA 2005); Goodrich, 854 So. 2d at 664. It is within the trial court’s discretion to determine

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whether counsel’s argument is improper. See Bigham v. State, 995 So. 2d 207, 215 (Fla. 2008). However, a trial court abuses its discretion when it fails to afford such latitude to defense counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury. See Goodrich, 854 So. 2d at 665; Hendrickson v. State, 851 So. 2d 808 (Fla. 2d DCA 2003). The trial court’s limitation here amounted to just such an abuse of discretion.

Of particular concern to this Court is the fact that the jury instruction for the escape charge is as follows:

To prove the crime of escape, the State must prove the following three elements beyond a reasonable doubt: Number one, Serge Jean was under arrest and in the lawful custody of a law enforcement official. Number two, while a prisoner, Serge Jean was being transported to or from a place of confinement. Number three, Serge Jean escaped or attempted to escape by running away from a law enforcement officer, intending to avoid lawful confinement. “Transportation to a place of confinement” begins at the time an individual is placed under arrest. An “arrest” takes place when the arresting officer intends to arrest; the arresting officer actually or constructively seizes the person to be arrested; the officer’s intent to arrest is communicated by the arresting officer to the person to be arrested; and the person to be arrested understands that communication. An “arrest” does not require that the law enforcement officer complete the act of acquiring total physical control over the person to be arrested.

(emphasis added).

Defense counsel’s argument concerning legal custody was permissible in this case because the jury was instructed to consider this issue. See Marman v.

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State, 814 So. 2d 1158, 1159 (Fla. 2d DCA 2002) (“If an instruction is given to the jury, counsel must be given an opportunity to address the jury on the matter.”); see also Seckington v. State, 424 So. 2d 194, 195 (Fla. 5th DCA 1983) (“Even though it is not the prerogative of an attorney in his closing arguments to instruct the jury on the law, it is entirely appropriate for an attorney to relate the applicable law to the facts of the case.”); Taylor v. State, 330 So. 2d 91, 93 (Fla. 1st DCA 1976) (“An attorney should . . . be allowed to explain to the jury those instructions which are relevant to his theory of the case and to emphasize any portion of the jury charge that he feels to be pertinent.”); United States v. Hall, 77 F.3d 398, 401 (11th Cir. 1996) (holding that counsel is permitted “point out legal concepts that will be included in the jury charge”), abrogation on other grounds recognized by Hunter v. United States, 559 F.3d 1188, 1190 (11th Cir. 2009), judgment vacated, 78 U. S. L. Weekly 3408 (Jan. 19, 2009).

Here, the trial court instructed the jury to determine whether, in pertinent part, the State had proven the following element beyond a reasonable doubt: “Serge Jean was under arrest and in the lawful custody of a law enforcement official.” (emphasis added). See Applewhite v. State, 874 So. 2d 1276, 1278 (Fla. 5th DCA 2004) (stating that “[t]he elements of [escape include whether] defendant was a prisoner, which is defined as any person who is under arrest and in the lawful custody of a law enforcement official”); see also State v. Ramsey, 475 So. 2d 671, 672 (Fla. 1985) (“`For conviction under the escape statute, the state need

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show only (1) the right to legal custody and (2) a conscious and intentional act of the defendant in leaving the established area of such custody.’” (quoting State v. Akers, 367 So. 2d 700, 702 (Fla. 2d DCA 1979))). Therefore, “the defense [should have been given] the opportunity to argue to the jury for a decision based on the law as instructed, no matter how far-fetched the argument might be.” Marman, 814 So. 2d at 1159. Cf. Bigham, 995 So. 2d at 214-15 (holding that trial court did not abuse its discretion in forbidding defense counsel’s argument as to dismissed charges as those charges “were no longer germane to the jury’s consideration”). Accordingly, we find that the trial court abused its discretion in prohibiting the lawful custody argument and the escape conviction must be reversed.

In addition, because the trial court precluded the argument at issue, we are compelled to reverse the drug possession convictions. The jury may have concluded from the trial court’s ruling that this was not an issue for the jury and that the trial court had deemed that Jean’s custody for drug possession was lawful, and therefore, Jean did possess drugs, as the State contended. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999) (holding that the limitation of counsel’s closing argument violated defendant’s right to present a defense and relieved the prosecution of the burden to prove its case). Based on the foregoing, we reverse

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the convictions, vacate the sentences, and remand for a new trial on the escape and drug possession charges.²

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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WILLIAM ALBERT BROSE, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2530.

District Court of Appeal of Florida, Fourth District.

February 17, 2010.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Roger B. Colton, Judge, L.T. Case No. 2007CF001746AXX.

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

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

LEVINE, J.

This appeal presents the question of whether the State established the corpus delicti of the crime of dealing in stolen property with the requisite corroborating evidence aside from Appellant’s extrajudicial statements. We find that there is sufficient evidence, in addition to Appellant’s statements, to affirm the conviction for dealing in stolen property.

The State presented a witness, Officer Aguirre of the Riviera Beach Police, who testified that Appellant, with another man beside him, was pushing a city-issued garbage can filled with twenty to thirty fishing poles in a parking lot located three or four blocks from the Intracoastal Waterway. Officer Aguirre saw Appellant and made contact with him to find out why he was pushing so many fishing poles in a garbage can. At trial, Aguirre described Appellant as being unkempt and wearing dirty clothes. Another Riviera Beach officer, Officer Gordon, testified to Appellant’s statements after his arrest, regarding where the fishing poles were stolen from and what Appellant was to receive in exchange for the stolen fishing poles.¹

At trial, there was testimony that Appellant brought the officers to the house from which he took the fishing poles. Appellant pointed to the place where he had made entry into the home, the southwest side of the garage. There, the window screen was cut out, and in the northeast corner of the garage, there was a fishing pole rack with numerous empty

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slots for the missing poles. The State entered into evidence photographs of the garbage can with the fishing poles, as well as the pictures of the home broken into and the broken out window and cut screen.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Iagan v. State, 830 So. 2d 792, 803 (Fla. 2002). An appellate court will not reverse a conviction that is supported by competent substantial evidence. Id. “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.” Id.

Section 812.019(1), Florida Statutes (2007), makes it a crime for any person to “traffic” in or endeavor to “traffic” in, property he knows or should have known was stolen. Trafficking means “[t]o sell, transfer, distribute, dispense, or otherwise dispose of property” or “[t]o buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.” § 812.012(8), Fla. Stat. (2007). The parties do not dispute that the State established that the fishing poles were stolen. Instead, the question is whether there was sufficient evidence of the possession of stolen goods with the intent to sell or transfer aside from Appellant’s own extrajudicial statements.

“Evidence of theft only, with the intent personally to put the stolen item or items to normal use, constitutes only the crime of theft and not the crime of trafficking or dealing in stolen property . . . .” State v. Camp, 596 So. 2d 1055, 1057 (Fla. 1992). The State, however, introduced significant evidence tending to show that the stolen property, that being twenty or thirty fishing poles transported in a garbage can in the middle of the night by Appellant, was not for normal or personal use.² Further, there is no minimum number of stolen goods required to constitute trafficking in stolen property. Gonzalez v. State, 948 So. 2d 892 (Fla. 5th DCA 2007).

After the State introduced the evidence of Appellant pushing a garbage can of twenty to thirty fishing poles in the middle of the night, the State was able to introduce Appellant’s statements. A confession can

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be admitted only after the State proves the corpus delicti of the crime by bringing forth substantial evidence tending to show the commission of the crime charged. State v. Allen, 335 So. 2d 823, 825 (Fla. 1976); Snell v. State, 939 So. 2d 1175, 1179 (Fla. 4th DCA 2006). The State merely has to make a prima facie demonstration of the corpus delicti, independent of the inculpatory statements. Hodges v. State, 176 So. 2d 91, 93 (Fla. 1965). The State need not establish the perpetrator’s identity. Snell, 939 So. 2d at 1179. In this case, there was substantial evidence tending to show that someone committed the crime of dealing in stolen property, allowing for the admission of Appellant’s confession. The sheer number of fishing poles in Appellant’s possession belies any contention that the poles were for his personal use.

The primary reason for the requirement that the proof of the corpus delicti of the crime be introduced before the admission of the defendant’s statement is to protect the defendant “from being convicted of a nonexistent crime due to `derangement, mistake or official fabrication.’” Snell, 939 So. 2d at 1178-79 (citation omitted). In the present case, based upon the evidence presented, there is no concern that the crime did not occur or that Appellant confessed to a nonexistent crime.

For all the foregoing reasons, we affirm.

Affirmed.

WARNER, J., concurs.

FARMER, J., dissents with opinion.

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Notes:

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FARMER, J., dissenting.

In affirming the conviction for dealing in stolen property, the majority reasons:

“`Evidence of theft only, with the intent personally to put the stolen item or items to normal use, constitutes only the crime of theft and not the crime of trafficking or dealing in stolen property.’ State v. Camp, 596 So.2d 1055, 1057 (Fla. 1992). The State, however, introduced significant evidence tending to show that the stolen property, that being 20 or 30 fishing poles transported in a garbage can in the middle of the night by Appellant, was not for normal use. Further there is no minimum number of stolen goods required to constitute trafficking in stolen property.”

Page 4

Slip Op. at 2. Their logic is based on the notion that he must have wanted to sell them because he stole so many of them. Is more than one enough, under this rationale? How many is enough to indicate selling?

As the court held in Blount v. State, 641 So.2d 447, 449 (Fla. 2d DCA1994): “the critical concept in Camp is not personal use, but negotiation” when the crime is dealing in stolen property. And even if personal use were the test for the crime of dealing in stolen property — which it isn’t — how do we derive the conclusion that 20 or 30 fishing poles is too many for personal use? As in Blount, the majority’s construction introduces an intolerable ambiguity.

When the crime is merely theft, personal use may be important because one element of the crime of theft is the appropriation of property of another to one’s own use. See Pizzo v. State, 945 So.2d 1203 (Fla. 2006) (holding that among elements of grand theft is obtaining property of another with intent to appropriate the property to one’s own use). But when dealing is the charge, there can be no reliance on an intuition of personal use, because it is certainly predictable for a thief to steal a longterm supply to reduce the frequency of having to commit the act of theft. The majority’s premise simply does not fit their conclusion.

As suggested above, the text of the statute does not bear the construction placed on it by the majority. Section 812.019(1) provides: “Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree.” The term traffic is defined to mean:

“(a) To sell, transfer, distribute, dispense, or otherwise dispose of property. (b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.”

§ 812.012(8), Fla. Stat. (2009). The majority opinion would make mere possession of goods sufficient to prove dealing, without any other evidence of an overt act designed to “sell, transfer, distribute, dispense, or otherwise dispose of such property.”

The analogue to trafficking in controlled substances simply does not hold up. In Rawlings v. State, 979 So.2d 1238 (Fla. 4th DCA 2008), the stolen substance possessed by the defendant was packaged in 31 individual baggies. If the possessor intends only to smoke the entire lot himself, why go to the trouble of packaging it in 31 individual baggies?

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Nothing in this case suggests that defendant had packaged or handled or used his trove in such a manner. In fact there is absolutely no evidence, apart from the fishing poles themselves, indicating in any way he intended to traffic in fishing poles. The majority is unreasonably enlarging the definition of the crime without textual support. I would grant a JOA on this charge because the evidence is facially insufficient to support a confession.

I dissent.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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