Florida Criminal Law Opinions

LANCE T. SANCHEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-5347.

District Court of Appeal of Florida, Second District.

Opinion filed February 17, 2010.

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

Guillermo E. Gomez, Jr., of Gomez & Touger, P.A., Tampa, for Appellant.

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

DAVIS, Judge.

Lance T. Sanchez challenges the trial court’s order revoking his probation. On appeal Sanchez raises three issues. We reverse due to the trial court’s improper ex

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parte conversations with court personnel and do not address the remaining issues raised by Sanchez.

While Sanchez was on probation for a charge of dealing in stolen property, the State filed an affidavit of violation alleging that Sanchez had violated his probation by committing the following offenses: burglary of a structure, grand theft, criminal mischief, and possession of burglary tools. At the violation of probation hearing, after the State rested its case, counsel for Sanchez requested a recess in order to discuss with Sanchez whether he would testify. The transcript reflects that while in recess, the trial court engaged in conversation with the assistant state attorney and the bailiff, during which the trial court made statements regarding Sanchez’s guilt.

Based on the State’s concession of error and our review of the trial court’s improper ex parte statements, we reverse the revocation of Sanchez’s probation. See Spencer v. State, 615 So. 2d 688, 691 (Fla. 1993) (finding that ex parte communication between trial judge and assistant state attorney during sentencing phase of trial amounted to reversible error and noting that “there is nothing `more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant’ ” (quoting Rose v. State, 601 So. 2d 1181, 1183 (Fla. 1992))). We remand the case to the trial court with instructions to set aside Sanchez’s sentence and conduct a new violation of probation hearing before a different judge.

Reversed and remanded with instructions.

WALLACE and MORRIS, JJ., Concur.

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

Courtesy of David Edelstein

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

Case No. 2D08-5910.

District Court of Appeal of Florida, Second District.

Opinion filed February 12, 2010.

Appeal from the Circuit Court for Polk County, Neil A. Roddenbery, Judge.

Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee/Cross-Appellant.

VILLANTI, Judge.

The State appeals the trial court’s order suppressing statements made by Michael Byron Edenfield to a deputy sheriff. Because Edenfield was in jail when he made the incriminating statements, the trial court concluded that he was automatically

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entitled, without exception, to be read Miranda¹ warnings before any conversations with a law enforcement officer could occur. Because the trial court’s order relies on this incorrect legal assumption and lacks critical factual findings, we reverse and remand for further proceedings.

Although “[a]n appellate court reviewing a ruling on a motion to suppress presumes that a trial court’s findings of fact are correct and reverses those findings only if they are not supported by competent, substantial evidence[,]” the trial court’s application of the law to the historical facts is subject to de novo review. Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007).

In this case, Deputy Michael Frenton² and another officer visited Edenfield’s home to conduct a “wellness check” on Edenfield’s grandmother. While conducting the check, they noticed several potted marijuana plants in plain view in front of the residence. Although the wellness check proved satisfactory, Deputy Frenton questioned Edenfield about the plants. Edenfield denied they belonged to him. The plants were then seized, but Edenfield was not arrested at that time. Law enforcement had further contact with Edenfield in the weeks following the initial visit, in the course of following up on his grandmother’s well-being. The investigation into the marijuana plants continued, and Edenfield was eventually arrested and charged with manufacture and possession of cannabis and possession of paraphernalia. Edenfield remained in jail following his arrest because he apparently could not make bond.

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After being in jail for approximately one month, Edenfield requested to speak to a law enforcement officer concerning items allegedly stolen from his home during his absence.³ Deputy Frenton responded to Edenfield’s jail visit request. When the deputy arrived at the jail, Edenfield asked to go to a private room. Deputy Frenton obliged by bringing him to an attorney meeting room. Once in the room, Edenfield did not ask to have an attorney present. Instead, Edenfield indicated that he would give the deputy information about drug activity in exchange for favorable treatment on his pending charges, and he began providing names of people allegedly involved in such activities.⁴ Deputy Frenton made no promises of favorable treatment and simply said that he would pass the information on to a narcotics officer. Toward the end of their conversation, Edenfield made incriminating statements concerning his ownership of the marijuana plants in question.

Thereafter, Edenfield filed a motion to suppress the incriminating statements, which the trial court granted after an evidentiary hearing. However, in issuing its order suppressing Edenfield’s incriminating statements, the trial court did not address key factual points of dispute, such as how the conversation turned from Edenfield’s stolen property claim and the identity of suspected drug dealers to the charges pending against Edenfield, who initiated the conversation related to the pending criminal charges, or why the current criminal charges became part of the

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discussion. Notably, the trial court granted suppression of the statements based upon this record only because it found that “Miranda rights were never read and Defendant never waived his right to counsel” and, hence, “[i]t cannot be established that the Defendant made any statements and/or admissions freely, knowingly or voluntarily.” The court’s conclusion was erroneous because it was based upon an incorrect presumption that Miranda warnings are required any time law enforcement receives incriminating statements from a prisoner during a conversation, regardless of the circumstances surrounding that conversation. However, whether Miranda warnings are required depends upon whether a custodial interrogation takes place. Unfortunately, here the trial court failed to make any findings of fact in this regard and the record does not otherwise provide an answer.

It is well established that Miranda warnings apply only to custodial interrogations. Rigterink v. State, 2 So. 3d 221, 242 (Fla. 2009) (“The dictates of Miranda apply exclusively to `in-custody interrogation.’” (quoting Miranda v. Arizona, 384 U.S. 436, 441-42 (1966))); see also Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992) (noting that the protection against self-incrimination under article I, section 9 of the Florida Constitution applies “only to statements obtained while in custody and through interrogation; they do not apply to volunteered statements initiated by the suspect or statements that are obtained in noncustodial settings or through means other than interrogation” (footnotes omitted)). Therefore, in instances where a defendant challenges the lack of Miranda warnings, the preliminary factual issues to be decided by the trial court are (1) whether the defendant was in custody and (2) whether he was interrogated.

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For purposes of Miranda, “[a] person is in custody if a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.” Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999) (citing Traylor, 596 So. 2d at 966 n.16). Furthermore, the term “custodial interrogation” refers to “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444 (emphasis added); see also Traylor, 596 So. 2d at 966 n.17 (“Interrogation takes place . . . when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response.”); State v. Busciglio, 976 So. 2d 15, 19 (Fla. 2d DCA 2008).

In this case, Edenfield obviously initiated a conversation with law enforcement about his allegedly stolen property and the identities of people involved in drug activity, but the trial court did not address who initiated the ensuing discussions regarding the pending charges, which led to Edenfield’s incriminating statements. The trial court only noted that a factual dispute on this issue existed, but it apparently considered the resolution of this dispute unnecessary to its ruling and, therefore, did not decide whose version of those facts should be believed—Deputy Frenton’s or Edenfield’s. On a motion to suppress, the circuit court is responsible for weighing the evidence and making factual findings concerning the credibility of witnesses. Dillow v. State, 884 So. 2d 508, 510 (Fla. 2d DCA 2004); Brown v. State, 352 So. 2d 60, 61 (Fla. 4th DCA 1977). In this case, the trial court erred in not doing so because the

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determination of this factual dispute is the linchpin to a correct legal decision on Edenfield’s motion to suppress.

In addition to having no findings of fact on the important issues discussed above, the trial court’s order implies that Miranda warnings are required any time law enforcement has a conversation with an inmate. The fact that a person is in jail, in and of itself, does not dispense with the necessity of the trial court making findings of fact regarding both prongs of the protection against self-incrimination, i.e., whether, for purposes of Miranda, the defendant is in custody and an interrogation took place. Under certain circumstances a trial court could find that even an inmate is free to terminate a conversation with law enforcement and return to his jail cell at any point during their conversation. A trial court could also find that an inmate volunteered incriminating information. Here, the trial court erred in not considering these issues. Despite the trial court’s assumption to the contrary, we can find no case law mandating a per se ministration of Miranda warnings outside the context of a custodial interrogation as that term is defined by controlling precedent.

In closing, we note that if the defense pursues further suppression proceedings on remand, there are numerous cases which the parties and trial court can consider in properly evaluating whether Edenfield’s statements were obtained in violation of Miranda. See, e.g., Ahedo v. State, 842 So. 2d 868 (Fla. 2d DCA 2003) (holding that defendant knowingly and voluntarily waived right against self-incrimination when he requested to speak to the officer who originally read him his rights and then made incriminating statements to the officer); Larson v. State, 753 So. 2d 733, 734-35 (Fla. 2d DCA 2000) (finding that defendant was subject to interrogation for purposes of

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Miranda where the police officer made “statements that were reasonably likely to elicit an incriminating response”); Serrano v. State, 15 So. 3d 629 (Fla. 1st DCA 2009) (affirming denial of motion to suppress where the defendant requested a meeting with a police officer after his arrest, offered to provide information in exchange for a haircut, and there was no evidence of coercion); State v. Lebron, 979 So. 2d 1093, 1094 (Fla. 3d DCA 2008) (holding that officer interrogated defendant when he told the defendant, “I hope you know what kind of trouble you are in” while defendant was seated in police cafeteria because the officer’s statement referred to the underlying crime for which the defendant was in custody and invited a response about that crime); Harnanan v. State, 780 So. 2d 183 (Fla. 5th DCA 2001) (holding that defendant was not subjected to custodial interrogation where he initiated conversation with police officer thereby waiving his Fifth Amendment rights). See generally State v. Hunt, 14 So. 3d 1035, 1038-39 (Fla. 2d DCA 2009) (discussing standard for reviewing allegations of Miranda violations where the defendant reinitiates communications with police officers after being read Miranda warnings and after initially invoking his right to remain silent).⁵

Accordingly, we reverse the order granting suppression and remand for further proceedings in accordance with this opinion.

WALLACE and LaROSE, JJ., Concur.

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

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Notes:

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Courtesy of David Edelstein

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STATE OF FLORIDA, Appellant,
v.
MAHMOUD GAD, Appellee.

Case No. 2D09-2039.

District Court of Appeal of Florida, Second District.

Opinion filed February 12, 2010.

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Collier County, Elizabeth Krier, Judge.

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

Jerry Berry and Michael Hopkins of Berry, Day & McFee, Naples, for Appellee.

DAVIS, Judge.

The State challenges the trial court’s order granting Mahmoud Gad’s motion in limine and excluding as evidence three statements made by Mr. Gad. Because the trial court abused its discretion in granting the motion, we reverse.

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The State charged Mr. Gad with attempted sexual battery and battery. The depositions taken in anticipation of trial reflect that, on the night in question, Mr. Gad and the victim had gone out for drinks, leaving Mr. Gad’s wife at home. The victim alleged that upon their return home but prior to their entering the residence, Mr. Gad pulled her over to the side of the home and attempted to rape her. Mr. Gad denies this account. However, when Mr. Gad and the victim entered the home, Mr. Gad’s wife noticed that he had removed his shirt, that his belt was undone, and that he was attempting to “hug” the victim. The victim was resisting Mr. Gad’s attempts, and his wife began yelling at the two of them. Mr. Gad then engaged his wife in an argument that resulted in his ordering the two women to leave the home. As the women drove away, Mr. Gad placed three calls to his wife’s cell phone. Because his wife did not answer the first two calls, Mr. Gad left two voice mail messages. His wife then answered the third call and had a brief conversation with Mr. Gad.

In anticipation of trial, Mr. Gad moved in limine to exclude any statements made during the three telephone calls. The transcripts of the two recorded messages were presented to the trial court, and Mr. Gad’s wife’s deposition testimony was considered as to the contents of the third call. In the first message, Mr. Gad asked that his wife call him back so that he could call the police. He apologized to her and again requested that she call back so he could call the police. In the second message, Mr. Gad stated:

Mahmoud here. (Inaudible). Call me. Everything will be fine (inaudible) talk about (inaudible) okay? Sorry for our cancel tonight, but I’m drunk, okay? Call back tomorrow, okay? Call me back so I can (inaudible) the [expletive] car. Maybe a check, okay?

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Mr. Gad’s wife testified in her deposition that the substance of the actual conversation she had with him during the third telephone call was as follows: “I’m sorry. Tell [the victim] I’m sorry.”

Mr. Gad argued below that the apologies were not necessarily admissions of his wrongdoing but could just as easily be understood to be apologies for getting into the argument and asking the women to leave. He maintained that even if the jury accepted his explanation of what the conversations referred to, the jury would still be prejudiced against him because he argued with his wife and ordered her to leave their home. The potential prejudice, according to Mr. Gad, outweighed the probative value of the evidence. The trial court granted the motion to exclude the statements, and the State appeals from that order.¹

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2008). In granting the motion in limine and excluding the statements, the trial court made a finding that the evidence was relevant. Neither party challenges that finding. Once it was established that the statements were relevant to the incident, however, the trial court should have weighed the probative value of the statements against the potential for unfair prejudice. “Under section 90.403, relevant evidence may be foreclosed where its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury . . . .” State v. Aylesworth, 666 So. 2d 181, 182 (Fla. 2d DCA 1995).

In order for relevant, probative evidence to be deemed unfairly prejudicial, it must go beyond the inherent prejudice associated with any relevant evidence. “`Relevant

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evidence is inherently prejudicial; however it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters.’” State v. Blackwell, 787 So. 2d 963, 965 (Fla. 1st DCA 2001) (quoting State v. Andres, 552 So. 2d 1151, 1153 (Fla. 3d DCA 1989)). “`Section 90.403 . . . is directed at evidence which inflames the jury or appeals improperly to the jur[ors'] emotions.’” Steverson v. State, 695 So. 2d 687, 689-90 (Fla. 1997) (quoting C. Ehrhardt, Florida Evidence, § 403.1 (2d ed. 1984)).

Having found that the statements were relevant, i.e., they could be understood to be admissions, the trial court should have then focused on whether the evidence was so inflammatory that the prejudicial nature of the statements outweighed their probative value. We conclude that the record does not support the trial court’s finding that the prejudice exhibited by the vague nature of the statements outweighed the probative value of the otherwise relevant evidence. This was not a case where the evidence was unfairly prejudicial because it could be misconstrued as highlighting some prior or additional bad act committed by Mr. Gad. The statements either had no relevance to the incident, or they were relevant and thereby were the type of evidence properly put before a jury as tending to show guilt related to the charges. See Blackwell, 787 So. 2d at 965 (“Here, the statement is not evidence of another bad act . . .; instead, it tends to prove that the defendant had [committed an element of the pending charges].”).

Even if the jury concluded that Mr. Gad’s apologies were not an admission of his criminal misconduct, the alternative explanation does not refer to something that would inflame the jury or appeal improperly to the jurors’ emotions. The fact that Mr.

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Gad argued with his wife and ordered her to leave does not rise to the level of prejudicial evidence that would be excluded by section 90.403. See Steverson, 695 So. 2d at 688-89 (“Certainly, most evidence that is admitted will be prejudicial to the party against whom it is offered. Section 90.403 does not bar [such] evidence . . . .” (internal quotations omitted)).

Based on this record, we conclude that Mr. Gad can only be prejudiced by these statements if they are actually found to be relevant to the events at issue. Such prejudice, however, is the type that is inherently associated with relevant probative evidence. As such, the evidence is not precluded by section 90.403. Absent a basis for a proper finding of unfair prejudice, the trial court abused its discretion in excluding the evidence. See Aylesworth, 666 So. 2d at 182 (“A trial court’s action taken under [section 90.403] will not . . . be overturned absent an abuse of discretion.”). Accordingly, we reverse the order granting the motion in limine and remand for further proceedings.

Reversed and remanded.

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

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

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Notes:

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Courtesy of David Edelstein

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JESUS SAUZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-2915.

District Court of Appeal of Florida, Second District.

Opinion filed February 12, 2010.

Appeal from the Circuit Court for Polk County, Donald G. Jacobsen, Judge.

Lee Adam Cohen of Cohen & Best, P.A., Lakeland, for Appellant.

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

MORRIS, Judge.

Jesus Sauz appeals his judgments and sentences for lewd battery and resisting an officer without violence. Sauz raises several issues on appeal, but we find merit only in his argument that the trial court erred by denying his motion for judgment of acquittal as to the resisting an officer without violence charge.

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I. Facts

Sauz was charged with lewd battery after he had sex with a thirteen-year-old girl. The resisting an officer without violence charge arose after Sauz lied about his identity to Detective Sherry Doty, the detective investigating the lewd battery. At the time Detective Doty went to Sauz’s home to talk to him, she was dressed in plain clothes, although she was wearing her badge and identified herself as an officer. She admitted that she did not have a warrant to arrest Sauz and did not go to his home with the intent to detain him. Rather, Detective Doty testified that she went there merely to see if he would cooperate with the investigation.

When Detective Doty arrived, there were several men at the location; Detective Doty did not have a photograph of Sauz and did not know his identity. Detective Doty did not tell the men why she was looking for Sauz. However, when Detective Doty began questioning the men, Sauz provided a false name, Jesus Martinez, and a false date of birth. Sauz also told Detective Doty that Sauz was in Texas. Detective Doty left the home at that time. Detective Doty testified that Sauz’s provision of the false name and the false date of birth slowed her investigation.

Eventually, Detective Doty was able to contact Sauz on his cell phone and arranged for him to come in to speak with her. Thereafter, Sauz was charged with and convicted of the crimes. On the lewd battery charge, he was sentenced to 94.6 months in prison as a sex offender. On the resisting an officer without violence charge, he was sentenced to time served.

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II. Analysis

On appeal, Sauz contends that the trial court erred by denying his motion for judgment of acquittal on the resisting an officer without violence charge. He contends that the evidence was insufficient to prove the commission of this crime because he was not under arrest or being lawfully detained at the time he provided the false information and that, therefore, he was not resisting the lawful execution of a legal duty.

We review the denial of the motion for judgment of acquittal under the de novo standard of review. See Jackson v. State, 18 So. 3d 1016, 1025 (Fla. 2009). In doing so, we view the evidence in the light most favorable to the State. See id.

The elements of resisting an officer are as follows: (1) the officer must be engaged in the lawful execution of a legal duty and (2) the defendant’s actions constitute obstruction or resistance of that lawful duty. See § 843.02, Fla. Stat. (2005); Fournier v. State, 731 So. 2d 75, 76 (Fla. 2d DCA 1999). “[A] suspect can commit the offense of obstructing a police officer without violence by providing false information to a police officer during a valid arrest or Terry¹ stop . . . .” St. James v. State, 903 So. 2d 1003, 1004 (Fla. 2d DCA 2005) (citing D.G. v. State, 661 So. 2d 75, 76 (Fla. 2d DCA 1995)); see also Fournier, 731 So. 2d at 76. However, “`[t]his rule . . . does not obligate a person to give his or her correct identity to an officer unless that person is legally detained.’” St. James, 903 So. 2d at 1004 (alteration in original) (quoting D.G., 661 So. 2d at 76); see also Fournier, 731 So. 2d at 76.

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In this case, Detective Doty was engaged in the lawful execution of a legal duty because she was investigating the lewd battery. See V.L. v. State, 790 So. 2d 1140, 1142 (Fla. 5th DCA 2001); Francis v. State, 736 So. 2d 97, 99 n.1 (Fla. 4th DCA 1999). However, pursuant to this court’s holding in St. James, Sauz was not lawfully detained and, therefore, his provision of the false name and date of birth did not constitute the crime of resisting an officer without violence.

In St. James, an officer was investigating the theft of a bicycle and when he arrived on scene, there was a group of men standing nearby. 903 So. 2d at 1004. Although the officer asked the men whether they had seen St. James, he [the officer] did not explain why he was looking for St. James or even that he was conducting an investigation. Id. Even though the officer had probable cause to arrest St. James at that time, the officer did not convey that information to the group of men and there was no showing that St. James knew the officer intended to detain him. Id. St. James denied knowing anyone by that name. Id. Despite the fact that St. James provided patently false information to the officer, this court determined that such conduct did not amount to obstruction because St. James was not legally detained at the time. Id.

In this case, while Sauz provided patently false information to Detective Doty, he did so at a time when he was not lawfully detained or subject to a Terry stop. Much like the facts of St. James, Detective Doty testified that she was investigating the lewd battery and merely went to Sauz’s home to see if he would cooperate with the investigation. Detective Doty further admitted that she did not intend to detain Sauz and did not explain why she was there. In addition, there is no indication that Sauz thought he was being detained by Detective Doty.

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Although the State asks this court to consider receding from St. James, we decline to do so. Instead, we apply St. James and hold that the State failed to provide sufficient evidence that Sauz committed the crime of resisting an officer without violence and further that the trial court erred by denying Sauz’s motion for judgment of acquittal. We therefore reverse Sauz’s conviction for resisting an officer without violence and remand for proceedings in conformance with this opinion.²

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.

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

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FRANK SALONKO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-4879.

District Court of Appeal of Florida, First District.

Opinion filed February 12, 2010.

An appeal from the Circuit Court for Alachua County. Mary Day Coker, Acting Circuit Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Frank Salonko, Appellant, seeks reversal of his convictions for second-degree murder and aggravated assault. He raises several issues on appeal, only one of which merits discussion. Citing this Court’s opinion in Montgomery v. State, 34

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Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009), review granted, 11 So. 3d 943 (Fla. 2009), Appellant argues that the trial court fundamentally erred in instructing the jury that to prove manslaughter by act, the State had to show that he intentionally caused the death of the victim. The State concedes error on this point. However, we find the instant case distinguishable from Montgomery, and because this Court does not accept improper concessions of error by the State in criminal cases,¹ we affirm.

Appellant was charged with first-degree murder. At trial, the court instructed the jury on second-degree murder and manslaughter as lesser-included offenses as follows:

To prove the crime of second-degree murder, the State must prove the following three elements beyond a reasonable doubt: Number one, [the victim] is dead; number two, the death was caused by the criminal act of Frank Salonko; number three, there was an unlawful killing of [the victim] by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

An act includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is imminently dangerous to another and demonstrating a depraved mind if it is an act or series of acts that, number one, a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another and, two, is done from ill will, hatred, spite, or an evil intent and, three, is of such a nature that the act itself indicates an indifference to human life.

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In order to convict of second-degree murder it is not necessary for the State to prove the defendant had an intent to cause death.

To prove the crime of manslaughter the State must prove the following two elements beyond a reasonable doubt: Number one, [the victim] is dead; 2A, Frank Salonko intentionally caused the death of [the victim] or, 2B, the death of [the victim] was caused by the culpable negligence of Frank Salonko.

However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously explained those terms.

In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

I will now define culpable negligence for you.

Each of us has a duty to act reasonably toward others. If there is a violation of that duty without any conscious intent to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care towards others.

In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily injury.

Based on these instructions, the jury returned a verdict for second-degree murder, rather than manslaughter or first-degree murder.

In Montgomery, the defendant was charged with first-degree murder, and the trial court instructed the jury on second-degree murder and manslaughter by act

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as lesser-included offenses. 34 Fla. L. Weekly at D360. Although the instruction the trial court gave was the standard instruction at the time, we found it erroneous because it stated that an element of manslaughter by act was that the defendant “intentionally caused the [the victim's] death.” Id. at D360, 362. We viewed this language as requiring the jury to find that the defendant intended to kill the victim in order to convict him of manslaughter by act. Id. at D361-62. Bound by this Court’s prior opinion in Hankerson v. State, 831 So. 2d 235 (Fla. 1st DCA 2002), we held that the addition of the intent-to-kill element to manslaughter by act was fundamental error because the jury’s finding that the defendant did not intend to kill the victim, as evidenced by the second-degree murder verdict, precluded it from returning a verdict for manslaughter under the instructions given. Montgomery, 34 Fla. L. Weekly at D362. We explained that the fundamental nature of this error resulted from the fact that because the jury found that the defendant did not intend to kill the victim, the instructions the trial court gave essentially directed a verdict for second-degree murder, precluding the jury from choosing the lesser-included offense one step removed. Id. This situation does not exist when the trial court gives an instruction on manslaughter by culpable negligence. See Nieves v. State, 22 So. 3d 691, 692 (Fla. 2d DCA 2009) (distinguishing Montgomery where the trial court gave an instruction on manslaughter by culpable negligence).

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Here, the trial court’s erroneous instruction did not interfere with the jury’s deliberative process in a way that tainted the underlying fairness of the entire proceeding because it instructed the jury on manslaughter by culpable negligence. Although the jury found, by its second-degree murder verdict, that Appellant did not intend to kill the victim, based on the instructions given, it could have returned a verdict for the lesser-included offense of manslaughter by culpable negligence while still honoring its finding that there was no intent to kill. Unlike in Montgomery, the jury in the instant case was not directed to choose the greater offense simply because the lesser-included offense would have improperly required a more depraved level of intent. Therefore, Appellant has not shown that fundamental error occurred under this Court’s opinion in Montgomery. Because

Appellant has shown no reversible error, we AFFIRM.

KAHN, LEWIS, and WETHERELL, JJ., CONCUR.

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

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DONALD STEPHENS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-3932.

District Court of Appeal of Florida, First District.

Opinion filed February 12, 2010.

An appeal from the Circuit Court for Duval County. James L. Harrison, Judge.

Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.

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

KAHN, J.

Donald Stephens challenges an order of commitment rendered pursuant to the Sexually Violent Predator Act, also known as the Jimmy Ryce Act (Act).

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Stephens contends the State did not adduce legally sufficient evidence to support his recommitment. We reverse.

A jury declared appellant a sexually violent predator under the Jimmy Ryce Act. § 394.912(10), Fla. Stat. (2009). On March 31, 2006, the trial court entered an order of involuntary commitment, which we affirmed. In August of 2006, Stephens consented to participate in sex offender treatment at the Florida Civil Commitment Center (FCCC). Appellant filed a petition for annual review of his mental condition pursuant to section 394.918(1), Florida Statutes. Following a limited hearing, the trial court found probable cause to warrant Stephens’ release. The court set the case for trial in accordance with section 394.918(3), Florida Statutes.

Without objection, appellant’s case proceeded without a jury. The State’s only witness was Dr. Robin Wilson, the clinical director of FCCC, who testified by telephone. Dr. Wilson had not worked with Stephens, and, in preparation for the hearing, had reviewed Stephens’ treatment file. According to the chart, Stephens was involved in the first of a four-phase treatment program. Dr. Wilson said the initial phase helped patients conceptualize and acknowledge the existence of a psychosocial problem. The following phases, Wilson stated, would include more intensive psychosocial treatment. Wilson ultimately agreed with the conclusions of appellant’s treating physicians that Stephens had not yet addressed his sex-offending

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behaviors and should continue treatment at FCCC. On cross-examination, however, Dr. Wilson conceded that he had administered no assessment to determine whether Stephens would pose a risk to the community if released. Also, Dr. Wilson did not “know Mr. Stephens well enough to know whether or not he’s still having deviant fantasies . . . .” The State presented no other evidence, nor did it seek to admit the medical record as a hearsay exception.

Proceedings under the Sexually Violent Predator Act are subject to the Florida Rules of Civil Procedure. See § 394.9155(1), Fla. Stat. (providing that “[i]n all civil commitment proceedings for sexually violent predators under this part, . . . [t]he Florida Rules of Civil Procedure apply unless otherwise specified”). Accordingly, under Florida Rule of Civil Procedure 1.530(e), “the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court . . . .” At a recommitment hearing under the Jimmy Ryce Act, “the state bears the burden of proving, by clear and convincing evidence, that the person’s mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence.” § 394.918(4), Fla. Stat. Having failed to offer proof that Stephens would be likely to commit an act of sexual violence if released from institutional care, the State cannot meet its burden of proof under the Act. Though we need not conclude that the State treated the

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hearing as a mere formality, we also cannot find sufficient competent evidence upon which to base appellant’s recommitment.

REVERSED.

LEWIS and WETHERELL, JJ., CONCUR.

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TONY ROSA, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-6018.

District Court of Appeal of Florida, Second District.

Opinion filed February 12, 2010.

Appeal from the Circuit Court for Pinellas County, Richard A. Luce, Judge.

Maria Rodriguez, Safety Harbor, for Appellant.

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

VILLANTI, Judge.

Tony Rosa appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged ineffective assistance of counsel. We affirm the denial on all grounds except grounds one and six. On those two grounds we reverse and remand for further proceedings.

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Rosa was convicted of second-degree murder. This court affirmed his judgment and sentence on direct appeal. See Rosa v. State, 853 So. 2d 422 (Fla. 2d DCA 2003) (table decision).

Rosa subsequently filed a motion for postconviction relief. In ground one of his motion, Rosa alleged that his counsel was ineffective by failing to depose several witnesses before they testified at trial. The postconviction court summarily dismissed this claim because Rosa failed to allege with particularity what these witnesses would have said had they been deposed or how their deposition testimony would have been different from their trial testimony. The court also concluded that Rosa had failed to articulate any prejudice resulting from counsel’s failure to depose these witnesses. The postconviction court correctly concluded that Rosa’s allegations were facially insufficient and dismissed this claim. See Jones v. State, 845 So. 2d 55, 65 (Fla. 2003) (“To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.”). However, under Spera v. State, 971 So. 2d 754, 761 (Fla. 2007), the postconviction court should have given Rosa an opportunity to amend his motion to state a facially sufficient claim. See, e.g., Philip v. State, 14 So. 3d 1243, 1243-44 (Fla. 2d DCA 2009); Monroe v. State, 13 So. 3d 1083, 1084 (Fla. 2d DCA 2009); Griggs v. State, 995 So. 2d 994, 995 (Fla. 1st DCA 2008). Accordingly, we reverse the dismissal of ground one and remand for the court to strike the claim with leave for Rosa to amend within a reasonable period of time not to exceed thirty days. See Philip, 14 So. 3d at 1244.

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In ground six, Rosa alleged that counsel was ineffective for failing to call codefendant William Marr to testify at trial because Marr could have provided exculpatory evidence. The postconviction court summarily dismissed this claim because Rosa failed to allege the substance of any specific testimony that Marr would have offered had he been called to testify at trial and because Rosa failed to allege how he had been prejudiced by counsel’s failure to call Marr at trial. We find no error in the postconviction court’s dismissal. See Meus v. State, 968 So. 2d 706, 711 (Fla. 2d DCA 2007) (identifying elements which a defendant must assert to state a facially sufficient claim of ineffective assistance for failure to call a witness at trial). However, under Spera, the postconviction court should have given Rosa an opportunity to amend his motion to state a facially sufficient claim. Accordingly, we reverse the dismissal of ground six and remand for the court to strike this claim with leave for Rosa to amend, if he can do so in good faith, within a reasonable period of time not to exceed thirty days. See Philip, 14 So. 3d at 1244.

If Rosa amends these claims, the postconviction court may again summarily deny them if they are once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.

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

WALLACE and CRENSHAW, JJ., Concur.

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

Case No. 1D09-4614.

District Court of Appeal of Florida, First District.

Opinion filed February 12, 2010.

An appeal from the Circuit Court for Santa Rosa County. Gary L. Bergosh, Judge.

Ross A. Keene of Beroset & Keene, P.A., Pensacola, for Appellant.

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

WEBSTER, J.

Appellant seeks review of an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In that motion, appellant complained

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that, at his sentencing, he had been designated a sexual predator pursuant to section 775.21, Florida Statutes (2002), although he did not qualify for such a designation, and that the designation was, therefore, illegal. The trial court denied the motion on the ground that appellant had waived the right to complain about his designation as a sexual predator because it was clear from the record that appellant had agreed to that designation as a part of his plea bargain. We agree with the trial court and, accordingly, affirm.

Appellant had been charged with four counts of lewd or lascivious battery on a person 12 or older, but less than 16, in violation of section 800.04(4)(a), Florida Statutes (2001). Each charge was a second-degree felony, punishable by up to 15 years in prison. Appellant ultimately negotiated a plea agreement, pursuant to which he would plead no contest to the four counts, be adjudicated guilty on all counts, and be sentenced to 24 months of community control to be followed by 120 months of probation. Appellant also agreed to a sexual predator designation.

On appeal, appellant argues that he did not qualify as a sexual predator and, therefore, his designation as such constituted an illegal sentence, and he could not agree to an illegal sentence. We disagree. Our supreme court has said that “a sexual predator designation is `neither a sentence nor a punishment but simply a status . . . .’” Saintelien v. State, 990 So. 2d 494, 496 (Fla. 2008) (quoting from

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section 775.21(3)(d), Florida Statutes (2003)). Because such a designation is “neither a sentence nor a punishment,” appellant’s agreement to be so designated is not controlled by those cases which hold that one may not agree to an illegal sentence. See, e.g., Mobley v. State, 939 So. 2d 213, 214 (Fla. 1st DCA 2006). Rather, it is controlled by cases such as Ackermann v. State, 962 So. 2d 407, 408 (Fla. 1st DCA 2007) (stating that a defendant cannot be sentenced to drug offender probation unless he agrees to such as part of his plea bargain). See also Allen v. State, 642 So. 2d 815, 816 (Fla. 1st DCA 1994) (because an agreement to reimburse the county’s medical expenses was a part of appellant’s plea bargain, he could not challenge the legality of his obligation to pay those expenses); Pollock v. Bryson, 450 So. 2d 1183, 1186 (Fla. 2d DCA 1984) (while, ordinarily, a trial court may not require as a condition of probation that a defendant pay restitution in excess of the amount of damage his criminal conduct caused the victim, a defendant is estopped to raise such a complaint when he has expressly agreed to such a provision as a part of his plea bargain); Garcia v. State, 722 So. 2d 905, 907 (Fla. 3d DCA 1998) (“[a] plea agreement is a contract and the rules of contract law are applicable to plea agreements”). It is apparent from the record that appellant’s agreement to a sexual predator designation was a bargained-for part of the plea agreement. Having freely and voluntarily entered into the agreement and accepted its benefits, appellant may not now seek to be relieved of one of the burdens

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imposed upon him pursuant to the agreement. E.g., Allen, 642 So. 2d at 816. The trial court’s order is affirmed.

AFFIRMED.

WOLF and THOMAS, JJ., CONCUR.

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QUEEN ELIZABETH COLLINS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-3691

District Court of Appeal of Florida, Second District.

Opinion filed February 12, 2010.

Appeal from the Circuit Court for Pinellas County, Joseph A. Bulone, Judge.

James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

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

ON REMAND FROM THE SUPREME COURT OF FLORIDA

SILBERMAN, Judge.

In Collins v. State, 34 Fla. L. Weekly S658 (Fla. Dec. 3, 2009), the Supreme Court of Florida quashed this court’s decision in Collins v. State, 12 So. 3d 227 (Fla. 2d DCA 2009), and directed this court on remand to reconsider the matter in

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light of the supreme court’s decision in Sheppard v. State, 17 So. 3d 275 (Fla. 2009). This court had relied upon its opinion in Sheppard v. State, 988 So. 2d 74 (Fla. 2d DCA 2008), quashed, 17 So. 3d 275 (Fla. 2009), when it affirmed Collins’ judgment and sentence and the denial of her pro se motion to withdraw plea which was made pursuant to Florida Rule of Criminal Procedure 3.170(l).

In her pro se motion Collins argued that she had not been properly represented. Collins also asserted that counsel had told her she could change her mind up until the very last minute and that she was exercising her right to do so. The court denied the motion without exploring Collins’ claims that she had been misrepresented. However, pursuant to the supreme court’s opinion in Sheppard, the court should not have denied Collins’ motion in this manner. See Sheppard, 17 So. 3d at 286. In this situation, the supreme court explained that the trial court should proceed as follows:

[T]he trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Id. at 287 (footnote omitted).

Therefore, we affirm the judgment and sentence, but we reverse the denial of the motion to withdraw plea and remand for the trial court to follow the procedures in the supreme court’s Sheppard opinion.

Affirmed in part, reversed in part, and remanded.

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

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A.R., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-5250.

District Court of Appeal of Florida, Second District.

Opinion filed February 12, 2010.

Appeal from the Circuit Court for Polk County, J. Michael McCarthy, Judge.

James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.

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

KELLY, Judge.

A.R., a juvenile, appeals the order adjudicating him delinquent for aggravated assault, trespass, and disorderly conduct and committing him to a high-risk

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residential facility. We affirm his adjudication and disposition without comment, but reverse the original commitment order and remand for further proceedings.

The original order of commitment adjudicated A.R. delinquent and committed him to the Department of Juvenile Justice for offenses committed in two separate cases. On April 20, 2009, A.R. filed a motion to correct disposition error pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2). In his motion, A.R. argued that the trial court erred in not entering separate disposition orders as to each offense. On June 17, 2009, the trial court entered amended orders of commitment reflecting A.R.’s delinquency adjudication and commitment for aggravated assault and trespass in circuit court case number 08-CJ-001446 and disorderly conduct in circuit court case number 08-CJ-001659. However, because the trial court did not enter its amended orders until more than thirty days after A.R.’s rule 8.135(b)(2) motion was filed, the amended orders are nullities. See O.H. v. State, 948 So. 2d 79 (Fla. 2d DCA 2007) (holding that an order granting relief on a motion to correct disposition error entered more than thirty days after the motion was filed is a nullity); J.M. v. State, 4 So. 3d 703, 704 (Fla. 5th DCA 2009) (“[R]ule 8.135(b)(1)(B) requires the trial court to `file an order ruling on the motion’ within 30 days, failing which `the motion shall be deemed denied.’”). Accordingly, we reverse the original disposition order and remand to the trial court for entry of new disposition orders as to each case. See Fla. R. Juv. P. 8.115(c) (providing that “[e]ach case requires a separate disposition order”).

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

VILLANTI and KHOUZAM, JJ., Concur.

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