Florida Criminal Law Opinions

RONALD WAYNE HENDRICKS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-357.

District Court of Appeal of Florida, First District.

Opinion filed March 31, 2010.

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

D. Gray Thomas, Wm. J. Sheppard, and Bryan E. DeMaggio of Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, for Appellee.

LEWIS, J.

Ronald Wayne Hendricks, Appellant, appeals his convictions for one count of battery and two counts of sexual battery on a child less than twelve years of age

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by a person eighteen years of age or older. Appellant raises five issues, three of which merit discussion. First, Appellant argues that the trial court abused its discretion in excluding evidence of his reputation for sexual morality. Second, he argues that the trial court committed per se reversible error by failing to invite objections from defense counsel after announcing its anticipated response to the jury’s request to view a portion of the transcript. Finally, and relatedly, Appellant argues that the trial court fundamentally erred in denying the jury’s request to view a portion of the transcript without advising the jury that it could request a “readback” of testimony. For the reasons explained below, we find no reversible error. Accordingly, we affirm Appellant’s convictions and write to explain our reasoning as to the three issues that merit discussion.

I. FACTS

The State charged Appellant with four counts of sexual battery on a child less than twelve years of age. The victim was the daughter of Appellant’s former girlfriend, in whose home he had lived for several years as part of the family. The State’s evidence consisted of the victim’s testimony and a recording of an incriminating telephone conversation between Appellant and the victim. In his own defense, Appellant testified that he did not commit the charged offenses. He also introduced testimony from several witnesses who stated that he had a good reputation in the community for truth and veracity. Two of these witnesses,

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Appellant’s former wife and natural daughter, also would have testified that he had a reputation for sexual morality, but the trial court excluded this testimony based on the State’s motion in limine.

Appellant’s daughter, who was an adult at the time of trial, testified that she knew “many, many, many people” who knew Appellant and that, when she was a child and Appellant was raising her, she had friends come to the home for sleepovers. She further testified that she knew Appellant’s reputation in the community for truth and veracity and that she “[didn't] think it could be better.” Similarly, Appellant’s former wife testified that she knew “hundreds and hundreds” of people who knew Appellant, that Appellant had “outstanding morals and character,” and that he was “highly, highly respected.” Outside the jury’s presence, Appellant’s counsel advised the court that, if given the opportunity, both of these witnesses would testify that they knew Appellant’s reputation in the community for being sexually moral and that it was “excellent.” The trial court stood by its earlier ruling that this evidence was inadmissible.

After the jury retired to deliberate, it submitted a written request to view a transcript of a specific portion of the victim’s testimony. Outside the jury’s presence, the court stated, “I think the answer is no, rely on your memory.” There was no response to this statement from the attorneys. However, the court asked one of Appellant’s attorneys whether he would waive the presence of Appellant’s other

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attorney. The attorney who was present agreed to waive the presence of the other. The jury was then brought into the courtroom, and the trial court stated, “Ladies and gentlemen, I have your question about the transcript, and the short answer is, no. You have to rely on your recollection and reach your decision based on that. Thank you.” The jury then went back to the deliberation room. Later, it returned the following verdicts: guilty as charged of counts one and two; guilty of battery as a lesser-included offense of count three; and not guilty of count four. After the trial court sentenced Appellant, this appeal followed.

II. ANALYSIS A. Exclusion of Evidence of Appellant’s Reputation for Sexual Morality

On appeal, Appellant argues that the exclusion of the evidence of his reputation for sexual morality was error because it was admissible under section 90.404(1)(a) and 90.405, Florida Statutes (2008). The State agrees that section 90.404(1)(a) might support Appellant’s theory of admissibility, but it contends that section 90.405 presents an “insurmountable bar” to the admission of a person’s reputation for sexual morality, at least where the type of morality at issue is the person’s propensity not to commit acts of child molestation. We agree with the State.

A trial court’s decision to admit or exclude evidence is typically reviewed for abuse of discretion. McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006).

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However, a trial court’s discretion over such decisions is limited by the evidence code and the applicable case law, and its interpretation of those authorities is subject to de novo review. Id.

As a general rule, all relevant evidence is admissible unless it is specifically excluded by a rule of evidence. Bryan v. State, 533 So. 2d 744, 746 (Fla. 1988). Section 90.404(1)(a), Florida Statutes (2008), provides that “[e]vidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except . . . [e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.” Under this rule, an accused is permitted to introduce evidence of any character trait pertinent to the charges against him, despite the general proscription against character evidence. See id.

Section 90.405, Florida Statutes (2008), dictates the methods of proving character at trial. Under section 90.405(1), any time a person’s character is relevant and admissible, it may be proven by evidence of that person’s reputation. However, proof of a person’s character may not be made by specific instances of conduct unless that person’s character is “an essential element of a charge, claim, or defense.” § 90.405(2). A defendant may not offer proof of his character by admitting evidence of an individual’s opinion. See § 90.405 (listing the proper methods of proving character and omitting opinion testimony from the list);

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Charles W. Ehrhardt, Florida Evidence § 404.5, at 201 (2009 ed.). In contrast, “[w]hen many people in the community discuss and compare an issue, it is felt that the resulting community opinion is trustworthy.” Ehrhardt, § 405.1, at 283.

No Florida case has yet held that a person accused of child molestation may or may not introduce evidence of his reputation for sexual morality for the purpose of showing he does not have the character trait necessary for committing acts of child molestation. However, the Fifth District addressed this issue in dicta in Alvelo v. State, 769 So. 2d 476, 477 (Fla. 5th DCA 2000). There, the defendant, who was accused of committing lewd acts upon a child, attempted to call “a string of witnesses to testify that [he] had never abused them or anyone they knew.” Id. at 477. Although the defendant in Alvelo apparently characterized this evidence as reputation evidence, it was clearly inadmissible as evidence of specific acts of conduct (or lack thereof). See Ehrhardt, § 404.5, at 201-02 n.7. Regardless, in addressing this issue, the Fifth District observed that, “[u]nlike one’s reputation for honesty or peacefulness, traits that might be noticed by the community, whether one secretly molests children or does not would not be openly exhibited to the community.” Alvelo, 769 So. 2d at 477. We agree with this statement, which was also embraced by the Third District in dicta in Russ v. State, 934 So. 2d 527, 532 (Fla. 3d DCA 2006).

At issue in Russ was whether the trial court properly excluded evidence that

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the defendant had a reputation for non-violence and respect toward females, where he had been charged with lewd or lascivious exhibition and sexual battery on a person under the age of twelve. 934 So. 2d at 531-32. Noting that “[i]t was not argued that Russ had acted violently,” the Third District found no abuse of discretion in the exclusion of such evidence. Id. at 532. The court went on to quote, with approval, the Fifth District’s observation in Alvelo that “whether one secretly molests children or does not would not be openly exhibited to the community.” Id. (quoting Alvelo, 769 So. 2d at 477).

To date, Alvelo and Russ are the only Florida cases to have addressed, either in dicta or a holding, the issue of whether a defendant should be allowed to introduce evidence of his reputation for sexual morality to rebut a charge of a sexual offense against a child. However, several out-of-state cases have mentioned this issue, and the majority of those cases, in contradiction of Alvelo and Russ, indicate that evidence of the defendant’s sexual morality or “normalcy” is admissible when the defendant offers it to show that he does not have the character trait necessary to commit acts of child molestation. See, e.g., State v. Rhodes, 200 P.3d 973, 976-77 (Ariz. Ct. App. 2008) (holding that evidence that a defendant had a reputation for sexual normalcy and appropriate behavior around children should have been admitted); U.S. v. John, 309 F.3d 298, 303 (5th Cir. 2002) (noting that personal opinion and reputation testimony regarding sexual morality are admissible

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to show that defendant was not capable of engaging in sexual conduct with a child, where the issue was whether the trial court erred in failing to instruct the jury that such evidence could give rise to a reasonable doubt); Wheeler v. State, 67 S.W. 3d 879, 882-83 (Tex. Crim. App. 2002) (noting that the defendant “was entitled to proffer evidence of his good character (or propensity) for moral and safe relations with small children or young girls,” where the issue concerned the propriety of the State’s introducing specific acts of misconduct as rebuttal evidence); People v. McAlpin, 812 P.2d 563, 576-78 (Cal. 1991) (holding that the trial court should have admitted evidence of the defendant’s reputation for “normalcy in his sexual tastes” but that its failure to do so was harmless); State v. Miller, 709 P.2d 350, 353-54 (Utah 1985) (indicating that evidence of the defendant’s reputation for sexual morality would have been admissible had it been offered but that evidence of specific acts was not). Our research has revealed no case providing that such evidence is admissible while simultaneously confronting the distinction recognized by our sister court in Alvelo v. State, 769 So. 2d 476, 477 (Fla. 5th DCA 2000), between traditionally admissible reputation evidence and evidence of a person’s reputation for sexual morality as it relates to a charge of a sexual offense against a child. See generally, e.g., State v. Rhodes, 200 P.3d 973 (Ariz. Ct. App. 2008); U.S. v. John, 309 F.3d 298 (5th Cir. 2002); Wheeler v. State, 67 S.W. 3d 879 (Tex. Crim. App. 2002); People v. McAlpin, 812 P.2d 563 (Cal. 1991); State v. Miller,

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709 P.2d 350 (Utah 1985). Although the court in Wheeler v. State noted that “one might certainly have a reputation in the community concerning” the “conduct-oriented traits” of pedophilia and child sexual abuse and “the more general character trait for `safe and moral treatment of children,’” it did not acknowledge the unreliability of such a reputation due to the tendency of acts of child molestation to occur in secret, as the court in Alvelo did. See 67 S.W.3d at 883 n.4.

In contrast, this key distinction was acknowledged in State v. Jackson, 730 P.2d 1361, 1364 (Wash. Ct. App. 1986), where the court held that a defendant’s reputation for “sexual morality and decency” and for “not spend[ing] an inordinate amount of time with children” was not admissible in a trial concerning a sexual offense against a child. The Jackson court expressed its reasoning as follows:

Whether a person spends an inordinate amount of time with children under ten is not probative here. . . . Dicta in Harper, . . ., 670 P.2d 297, suggests that sexual morality and decency is the specific trait pertinent to the charge of indecent liberties. We doubt the validity of this assertion. The crimes of indecent liberties and incest concern sexual activity, which is normally an intimate, private affair not known to the community. One’s reputation for sexual activity, or lack thereof, may have no correlation to one’s actual sexual conduct. Simply put, one’s reputation for moral decency is not pertinent to whether one has committed indecent liberties or incest. The trial court properly refused to permit Jackson’s witnesses to testify concerning his reputation for sexual morality and decency.

730 P.2d at 1364. Under the Jackson court’s reasoning, although the trait of “sexual morality or decency” itself may be pertinent to a charge of a sexual offense against a child, a person’s reputation concerning such a trait is not pertinent, due to

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the nature of the crime as one that occurs in secret. See id. Notably, the Jackson court issued this holding based on rules of evidence similar to those of Florida. See id. (quoting Washington’s evidentiary rule 404(a) and acknowledging that an individual’s opinion is not admissible to prove character); compare Wash. R. Evid. 404(a) (”Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except . . . [e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.”) with § 90.404(1), Fla. Stat. (2008) (”Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except . . . “[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.”); compare Wash. R. Evid. 405 (providing that when character evidence is admissible, “proof may be made by testimony as to reputation,” that inquiry into relevant specific instances of conduct is allowable on cross-examination, and that proof of character may be made evidence of specific instances of conduct when “character or a trait of character is an essential element of a charge, claim, or defense”) with § 90.405, Fla. Stat. (2008) (providing that “[w]hen evidence of the character of a person or of a trait of that person’s character is admissible, proof may be made by testimony about that person’s reputation” and that “[w]hen character or a trait of character of a person is an essential element of a charge,

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claim, or defense, proof may be made of specific instances of that person’s conduct”). We agree with the Jackson court’s reasoning, which is based on the same concerns expressed in Alvelo, 769 So. 2d at 477, regarding the susceptibility of the particular character trait at issue to proof by reputation evidence.

The observations of the Alvelo and Jackson courts are relevant to a determination of the admissibility of the evidence proffered in this case because, in Florida, the reliability of reputation testimony is an issue of admissibility. See Larzelere v. State, 676 So. 2d 394, 399 (Fla. 1996) (explaining that “the community from which the reputation testimony is drawn [must be] sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment”). Because a person’s tendency, or lack thereof, to commit acts of child molestation is not something that a community tends to have knowledge of, testimony concerning a person’s reputation for having such a trait is inherently unreliable. See Alvelo, 769 So. 2d at 477. Therefore, the trial court properly excluded such evidence. To the extent Appellant attempted to introduce evidence only of his reputation for having appropriate sexual relationships with adults, it was within the trial court’s discretion to exclude it as either irrelevant or substantially more likely to confuse the issues than to offer probative value. Cf. Russ v. State, 934 So. 2d 527, 532 (Fla. 3d DCA 2006) (holding that the defendant’s reputation “for respectfulness toward women” had no bearing on

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whether he committed lewd or lascivious exhibition or sexual battery on a child); see § 90.403, Fla. Stat. (2008) (providing that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence”).

B. The Jury’s Request to View a Portion of the Trial Transcript During Deliberations

Having found no error in the trial court’s exclusion of the evidence of Appellant’s reputation for sexual morality, we turn to his arguments, raised for the first time on appeal, concerning the trial court’s handling of the jury’s question during deliberations. First, Appellant argues that the trial court committed per se reversible error by failing to afford him an opportunity to participate in a discussion of the action to be taken in response to the jury’s request. Second, Appellant argues that the trial court’s instruction was reversible error because it suggested that a read-back of trial testimony was impermissible as a matter of law, as opposed to discretionary. Both of these arguments relate to Florida Rule of Criminal Procedure 3.410, which provides as follows:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

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(i) Notice under Rule 3.410

Appellant’s argument that the trial court’s failure to request objections to its proposed instruction violated the notice requirements of Rule 3.410, thus constituting per se reversible error, is based on Ivory v. State, 351 So. 2d 26 (Fla. 1977), and Bradley v. State, 513 So. 2d 112, 112-13 (Fla. 1987). In Ivory, during deliberations, the jury sent notes to the trial court requesting the jury instructions and evidentiary documents. 351 So. 2d at 27. The trial court provided those documents to the jury “[w]ithout notifying the defendant, his counsel, or counsel for the state, and outside of their presence.” Id. The supreme court determined that this error required a new trial, explaining its holding as follows:

Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless. . . . We now hold that it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request. This right to participate includes the right to place objections on record as well as the right to make full argument as to the reasons the jury’s request should or should not be honored.

Id. at 28.

In Bradley v. State, 513 So. 2d 112 (Fla. 1987), the supreme court was confronted with a record showing a violation of Rule 3.410 similar to the one at issue in Ivory. The trial court in Bradley responded in writing to the jury’s request

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during deliberations to read a police report. 513 So. 2d at 112. The record in Bradley did not reflect whether the trial court gave notice to the prosecutor and defense counsel before sending the note back to the jury. Id. For this reason, the Bradley court held that reversal was required. Id. at 112-13. Notably, at oral argument, the appellant’s counsel admitted that defense counsel was present during the trial court’s consideration of the jury’s inquiry. Id. at 114. Based on this concession, the State requested that the court remand the case for a reconstruction of the record to determine who was present. Id. The supreme court rejected this request and the argument “that presence of counsel is all that is required under rule 3.410.” Id. The court then made the following observations:

The right to participate, set forth in Ivory, includes the right to place objections on the record as well as the right to make full argument as to why the jury request should or should not be honored. . . . `Notice is not dispositive. The failure to respond in open court is alone sufficient to find error.’

Bradley, 513 So. 2d at 114 (citations omitted).

In Thomas v. State, 730 So. 2d 667, 668-69 (Fla. 1998), the supreme court clarified its position regarding the requirements of Rule 3.410. There, the bailiff had informed the trial court that the jury had a question concerning a notation on one of the State’s exhibits. Id. at 667. The trial court instructed the bailiff “that they should consider [the notation] as part of the evidence and continue to deliberate on their verdict.” Id. The trial court advised the prosecutor and defense

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counsel of this communication after it occurred but before the jury returned a verdict and asked whether they had any objections to the process the court used to communicate with the jury. Id. at 667-68. Both attorneys stated that they had no objection. Id. at 668. On appeal, citing Ivory and its progeny, the defendant argued that the trial court’s communication with the jury constituted per se reversible error. Id. The supreme court declined to find reversible error, however, due to defense counsel’s affirmative waiver of the issue. Id. at 668-69. The Thomas court noted that “[t]he per se reversible error rule announced in Ivory is prophylactic in nature and must be invoked by contemporaneous objection at trial.” Id. at 668. The Thomas court also emphasized that the “particular evil rule 3.410 and the per se error standard of Ivory were designed to prevent is the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record” and that “an opportunity to contribute after the instruction has been given is insufficient.” 730 So. 2d at 668 (quoting Mills v. State, 620 So. 2d 1006, 1008 (Fla. 1993) (internal citations omitted)).

Based on the Thomas court’s clarification that counsel must lodge a contemporaneous objection when given the opportunity to do so, this Court, in Paige v. State, 802 So. 2d 1161, 1164 (Fla. 1st DCA 2001), affirmed the defendant’s convictions, despite the trial court’s failure to invite defense counsel to comment on the jury’s request for re-instruction. The Paige Court explained that

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affirmance was proper “[b]ecause defense counsel and defendant were present in the courtroom at the time of the asserted error and did not make a contemporaneous objection at trial.” Paige, 802 So. 2d at 1164.

Here, Appellant requests that we reverse his convictions and require a new trial because the trial court did not expressly invite his attorney to object to its anticipated answer to the jury’s question. We refuse to do so because Appellant received both notice and an opportunity to be heard, as required under Rule 3.410 and the case law interpreting it. In stating, “I think the answer is no, rely on your memory,” the trial court gave Appellant’s attorney the opportunity to argue for a different answer. Like the defense counsel in Paige, Appellant’s attorney simply chose not to object. See 802 So. 2d at 1164. The jury was not in the courtroom yet, and nothing in the record indicates that the trial court cut off Appellant’s right to respond. We have no reason to believe that the trial court would not have listened to a full argument if defense counsel had attempted to make one. Therefore, we do not agree with Appellant’s claim that the trial court denied him appropriate notice and an opportunity to be heard under Rule 3.410.

(ii) Availability of a “Read-back” of Trial Testimony

Finally, we consider Appellant’s argument that the trial court reversibly erred in instructing the jury that it had to rely on its memory. Appellant contends that the trial court should have instructed the jury that, at the trial court’s

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discretion, it could hear a “read-back” of portions of the testimony, even though he did not request such an instruction. Although Appellant does not argue that the omission of this additional instruction was fundamental error, such a conclusion is required for reversal because Appellant failed to object to the trial court’s instruction either when it was announced outside the jury’s presence, when it was read to the jury, or otherwise. See State v. Delva, 575 So. 2d 643, 644 (Fla. 1991) (noting that an error in the trial court’s instructions to the jury is subject to the contemporaneous objection rule and may not be raised on appeal absent fundamental error). Despite Appellant’s failure to argue fundamental error, we consider whether the purported error is of a fundamental nature because it is an appellate court’s “unrenunciable judicial duty” to correct fundamental error even if it is not raised. See Bain v. State, 730 So. 2d 296, 302 (Fla. 2d DCA 1999) (called into doubt on other grounds in State v. Jefferson, 758 So. 2d 661, 664 (Fla. 2000)); see also I.A. v. H.H., 710 So. 2d 162, 165 (Fla. 2d DCA 1998) (noting that it is an appellate court’s “duty to notice and correct . . . fundamental errors even when they have not been identified by the parties”).

Before proceeding to fundamental error analysis, we review the general standards governing a trial court’s response to a jury’s request to either view a trial transcript or have testimony read back to it. There is no rule of criminal procedure providing that a jury may view a transcript of the proceedings. See Fla. R. Crim. P.

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3.400(a) (omitting transcripts from the list of items a jury may view in the deliberation room). In contrast, Rule 3.410 provides that a trial court may, in its discretion, have portions of the trial testimony read back to the jury upon request. Fla. R. Crim. P. 3.410. A trial court’s discretion over whether to allow a read-back of testimony is wide. Avila v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001). In fact, the Florida Supreme Court has observed that “courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury’s request for a read back.” Francis v. State, 808 So. 2d 110, 130 (Fla. 2001) (citing McKee v. State, 712 So. 2d 837, 838 (Fla. 2d DCA 1998)).

Despite the wide latitude a trial court is accorded in exercising its discretion to either read back testimony or not, a trial court “may not mislead the jury into thinking that a readback is prohibited.” Avila, 781 So. 2d at 415. The reasoning behind this rule is that juries should not be prospectively discouraged from requesting read-backs of other portions of the trial simply because the trial court has denied its request for a read-back of a particular portion. See Johnson v. State, 10 So. 3d 680, 681 (Fla. 3d DCA 2009). In Avila v. State, the Fourth District found the trial court’s instructions misleading where the jury requested a read-back and the trial court responded by stating that no transcripts were available and that the jury was required to rely on its own recollection. 781 So. 2d at 415-16. The Third District cited Avila with approval in Johnson v. State, where it found error, albeit

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harmless, in the trial court’s pre-deliberation instruction that there was not a “simultaneous transcript” of the trial and that the jury would have to rely on its own recollection if it had any questions regarding the facts. Johnson, 10 So. 3d at 681.

However, the Third District distinguished Avila in Hazuri v. State, 23 So. 3d 857 (Fla. 3d DCA 2009), where the trial court gave an instruction similar to the one at issue in the instant case. In Hazuri, the jury sent a note to the court requesting trial transcripts. 23 So. 3d at 857. The trial court informed the prosecutor and defense counsel that it believed “the accurate and correct response is that they must rely on their own collective recollection of the evidence.” Id. at 858. Defense counsel objected based on the failure of the suggested instruction to inform the jury of the availability of a read-back. Id. The trial court overruled the objection and instructed the jury as it had announced it would. Id. On appeal, the Third District held that the instruction was “fair and legally accurate” and that the trial court was under no obligation, in response to the request for transcripts, to inform the jury that a read-back may be available upon request. Id. at 858-59. The basis of the Hazuri court’s distinction of Avila was that in Avila, the jury had requested a read-back, while in Hazuri, it had requested to view the transcripts. Hazuri, 23 So. 3d at 859-60.

The Fourth District repudiated this distinction in Barrow v. State, 35 Fla. L.

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Weekly D328 (Fla. 4th DCA Feb. 10, 2010). There, as in Hazuri, the jury requested to view the trial transcript. 35 Fla. L. Weekly at D329. Both the prosecutor and defense counsel suggested that the court advise the jury of its right to request a read-back. Id. The court, however, refused to give such an instruction, and instead told the jury, “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” Id. The Fourth District held that this instruction was misleading and, thus, constituted reversible error. Id. Accordingly, the Barrow court certified conflict with Hazuri. Id. at D330.

The Barrow court relied, in part, on Roper v. State, 608 So. 2d 533, 534 (Fla. 5th DCA 1992), where the trial court had responded to a jury’s request to “see” certain testimony by informing the jury, over defense counsel’s objection, that there was nothing to “see,” as no transcript was available. See Barrow, 35 Fla. L. Weekly at D329. The Roper court held that this instruction was misleading, opining that the trial court had “employed a semantic shell game effectively negating an option allowed the jury under Rule 3.410″ in contravention of case law holding that a trial court may not lead a jury to believe that a read-back is not available under any circumstances. 608 So. 2d at 535.

This Court has not yet considered in a written opinion whether it is error for a trial court to deny a jury’s request to view a portion of the trial transcript without informing the jury that a read-back of testimony may be permissible at the trial

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court’s discretion. We will, however, leave that determination for another day because we hold that even if such an instruction constitutes reversible error when duly preserved, the instruction given in the instant case does not rise to the level of fundamental error. Although there is a split of authority among the district courts concerning whether an instruction such as the one given in the instant case is so incomplete as to be misleading, we are aware of no case holding that a trial court’s failure to offer a read-back, sua sponte, is fundamental error. In fact, in each of the cases we have reviewed on the subject, the district courts either specifically noted that the issue was preserved or recited facts showing preservation. E.g., Barrow v. State, 35 Fla. L. Weekly D328, D329 (Fla. 4th DCA Feb. 10, 2010) (noting that the prosecutor suggested that the trial judge tell the jury it could request read-backs and that the defense attorney affirmatively requested such an instruction); Hazuri v. State, 23 So. 3d 857, 858 (Fla. 3d DCA 2009) (quoting trial counsel’s request for an instruction regarding the read-back option); Johnson v. State, 10 So. 3d 680, 681 (Fla. 3d DCA 2009) (noting that trial counsel preserved the issue by objecting to the instructions to the jury that no transcripts were available and that it had to “rely upon [its] own recollection of the evidence”); Avila v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001) (finding the issue concerning the trial court’s failure to advise the jury of its right to request a read-back preserved by trial counsel’s request for a read-back after the jury asked to review a portion of the testimony);

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Roper v. State, 608 So. 2d 533, 533-34 (Fla. 5th DCA 1992) (noting defense counsel’s objection to the court’s response to the jury’s request to “see” testimony).

Error may be harmful and yet not fundamental. Reed v. State, 837 So. 2d 366, 370 (Fla. 2002). Fundamental error is “error that `reaches down into the validity of the trial itself to the extent that a verdict of guilty . . . could not have been obtained without the assistance of the alleged error.’” Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000) (quoting McDonald v. State, 743 So. 2d 501, 505 (Fla. 1999)). Moreover, error is fundamental only if it “goes to the very heart of the judicial process” and “extinguishes a party’s right to a fair trial,” such that it results in a miscarriage of justice. Martinez v. State, 933 So. 2d 1155, 1159 (Fla. 3d DCA 2006).

The Florida Supreme Court has cautioned that “[t]he doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Smith v. State, 521 So. 2d 106, 108 (Fla. 1988). As this Court has explained, one reason for appellate courts’ reluctance to find fundamental error is that “[w]e do not want to encourage the creation of `gotchas’ whereby the defense is allowed to sit on its rights [and] say nothing until after it sees whether the jury returns an adverse verdict.” Jones v. State, 571 So. 2d 1374, 1376 n.3 (Fla. 1st

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DCA 1990); accord Sailor v. State, 816 So. 2d 182, 184 (Fla. 1st DCA 2002) (noting that the contemporaneous objection rule was designed to prevent the type of “gamesmanship” that occurs when “a party waits to see if the jury renders a favorable verdict while the party withholds a claim of error in the process”). For this reason, it has been established that an error of omission in jury instructions is fundamental only when “the omission is pertinent or material to what the jury must consider in order to convict.” State v. Delva, 575 So. 2d 643, 645 (Fla. 1991).

Because a trial court is not required to accommodate a jury’s request for a read-back, it is difficult to imagine circumstances under which a trial court’s failure to advise the jury of its right to request one could vitiate the fairness of the entire trial. The likelihood that fundamental error could occur under such circumstances is even further diminished by the legitimate disagreement between the reasonable minds of the judges at the Third and Fourth Districts concerning whether an instruction such as the one given in the instant is erroneous at all. Given this disagreement, we do not believe it can be reasonably said that the instruction given was so egregious as to demand reversal in the interests of justice, as would be required for a finding of fundamental error. See Smith, 521 So. 2d at 108. Moreover, a defense counsel’s failure to request an instruction on the availability of a read-back is the type of omission that may be a part of trial strategy. In any case, a defense attorney may have valid reasons not to invite the

Page 24

jury to ask for a reiteration of the victim’s testimony. Because failure to request an instruction on reading back testimony might form the basis for a legitimate trial strategy, such an omission should not be permitted to be raised as error for the first time once counsel has the verdict and, in hindsight, realizes that it would have been a better strategy to offer a read-back. Such an approach is the type of gamesmanship the contemporaneous objection rule was designed to prevent. Cf. Sailor, 816 So. 2d at 184.

Here, the trial court advised the jury to rely on its collective memory of the evidence to make its decision, and the jury was able to do so, as evidenced by its unanimous verdict on each of the four counts charged. While the testimony the jury requested to view may itself have been pertinent to what the jury needed to consider to reach a verdict, the advice that the jury had the option of requesting a read-back of the testimony, which would be either granted or denied at the trial court’s discretion, was not crucial to its decision. The testimony itself had already been presented. We do not know defense counsel’s reasons for not asking the trial court to suggest a read-back of the testimony, but we cannot say that the lack of such an instruction vitiated the fairness of the entire trial. Accordingly, we decline to find fundamental error in the trial court’s failure to advise the jury, sua sponte, of the availability of a read-back at the court’s discretion.

Finding no preserved, reversible error, we AFFIRM.

Page 25

VAN NORTWICK and ROWE, JJ., CONCUR.

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

ADRIAN BRUNSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-1047.

District Court of Appeal of Florida, First District.

Opinion filed March 31, 2010.

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

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

Appellant seeks review of his conviction for trafficking in cocaine. Appellant raises seven issues on appeal. We determine one issue requires reversal. Specifically, under the unique facts of this case, we find the trial court erred in granting the State’s motion in limine precluding defense counsel from asking

Page 2

appellant whether he had ever been arrested. We also address two other issues to provide guidance to the trial court on remand.

Appellant was stopped while driving and after consenting to a search of his vehicle, the arresting officer found approximately 270 grams of cocaine in individually wrapped plastic baggies in the center console of his vehicle. The entire stop and search of the vehicle was videotaped by a camera mounted on the officer’s windshield. On the videotape, the officer can be heard asking appellant if he had ever been arrested. At the time the question was asked, appellant was off camera, but the audio feed of the tape evidenced no audible response to the question. At trial, the State chose to play the entire video of the stop for the jury and presented it with a transcript of the taped conversation. The video and the transcript included the unanswered question regarding appellant’s prior arrest history.

Further, at trial the State admitted, over appellant’s objection, evidence establishing appellant was carrying $1000 in cash on his person at the time he was arrested. At the close of the State’s evidence, appellant announced his intention to testify. At this point, the State filed a motion in limine seeking to exclude any questioning regarding appellant’s lack of a prior arrest record. Appellant asserted he was entitled to clear up any confusion regarding whether he had been previously arrested because the State had created an ambiguity on the issue by playing the

Page 3

tape of the stop in its entirety. Disagreeing with appellant, the trial court granted the State’s motion in limine. In his testimony, appellant asserted he had no knowledge of the cocaine in his vehicle and that several individuals had access to his car in the days preceding the stop. The jury convicted appellant as charged.

The first issue we address is whether the State opened the door to otherwise inadmissible evidence when it chose to play the entire videotape recording of the traffic stop which ended with appellant’s arrest. We hold the contents of the videotape opened the door for appellant to present evidence regarding his lack of an arrest history. Thus, we conclude the trial court erred in barring this evidence, and because this error was not harmless, we reverse and remand for a new trial.

A trial court’s ruling on an evidentiary issue is reviewed under an abuse of discretion standard. Hudson v. State, 992 So. 2d 96, 109 (Fla. 2008). Ordinarily, evidence that appellant had never been arrested would be inadmissible in Florida. See Welch v. State, 940 So. 2d 1244 (Fla. 2d DCA 2006); Wrobel v. State, 410 So. 2d 950, 951 (Fla. 5th DCA 1982). However, “`[a]s an evidentiary principle, the concept of `opening the door’ allows the admission of otherwise inadmissible testimony to `qualify, explain, or limit’ testimony or evidence previously admitted. The concept of `opening the door’ is `based on considerations of fairness and the truth-seeking function of a trial.’” Lawrence v. State, 846 So. 2d 440, 452 (Fla. 2003) (quoting Rodriguez v. State, 753 So. 2d 29, 42 (Fla. 2000)). This principle

Page 4

is triggered when one party’s evidence presents “an incomplete picture” and fairness demands the opposing party be allowed to “follow up in order to clarify . .. and make it complete.” Hudson, 992 So. 2d at 110. See Crumbie v. State, 16 So. 3d 893, 895 (Fla. 1st DCA 2009); Washington v. State, 758 So. 2d 1148, 1155 (Fla. 4th DCA 2000); James v. State, 388 So. 2d 35, 36 (Fla. 5th DCA 1980).

In this case, the State opened the door to evidence of appellant’s lack of arrest history when it played the entire videotape of the stop for the jury. The State, by planting the officer’s unanswered question in the minds of the jury, a question otherwise barred by the rules of evidence, created the misimpression appellant had been previously arrested. Benefited by this negative inference and anticipating appellant would try to rebut it, the State then moved in limine to exclude any evidence relating to the subject of appellant’s arrest history. The evidentiary principle of “opening the door” protects the goals of fairness and truthseeking permeating a trial from being overcome by these kinds of adversarial games. The trial court erred by not granting appellant an opportunity to “`qualify, explain, or limit’” the incomplete picture depicted in the videotape and clarify for the jury whether he had been previously arrested.^* Lawrence, 846 So. 2d at 452 (quoting Rodriguez, 753 So. 2d at 42).

Page 5

Further, the error was not harmless. 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.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Appellant’s defense that he was unaware of the presence of the drugs in his vehicle rested solely on his credibility. Namely, if the jury had believed him, no matter how implausible his story in light of all other circumstantial evidence, he would have been acquitted. Thus, the State has not proven beyond a reasonable doubt the jury was not affected or influenced in reaching its guilty verdict by the insinuation appellant had been previously arrested. Therefore, we reverse.

Second, appellant asserts it was error to allow evidence establishing he was carrying over $1000 on his person at the time of his arrest as this evidence was irrelevant as to guilt. Florida case law establishes cash found on a defendant is irrelevant to prove a possession of contraband charge. See generally Jackson v. State, 570 So. 2d 1388 (Fla. 1st DCA 1990); Buitrago v. State, 950 So. 2d 531, 532 (Fla. 4th DCA 2007); Ferguson v. State, 697 So. 2d 979 (Fla. 4th DCA 1997). However, while cash found on the person at the time of arrest may not be admissible to prove simple possession, it is relevant to prove the charge of trafficking.

Page 6

Appellant cites both Lowder v. State, 589 So. 2d 933 (Fla. 3d DCA 1991), and Garcia v. State, 655 So. 2d 194 (Fla. 3d DCA 1995), for the proposition that the underlying evidence is inadmissible, yet neither of those cases mandates reversal here. In Lowder, the objection was not to the cash itself being admissible, but to the State’s attempt to call an officer to testify in his expert opinion that there existed a relationship between the defendant’s possession of $1900 in cash and his dealing in narcotics. 589 So. 2d at 935-36. In Lowder, the court expressed concerns that this type of testimony’s probative value was outweighed by its prejudicial effect. Id. However, the Lowder court expressly noted that testimony concerning cash found on the defendant would be admissible, stating:

the defendant’s possession of cash was nonexpert evidence the jury was free to consider, along with the other competent evidence such as the amount, condition, sources, and given reasons for carrying the currency, in a common-sense resolution of the disputed issue.

Id. at 936.

Further, while Garcia generally asserts the $880 found on the defendant in a trafficking case was not “relevant to any portion of the case,” 655 So. 2d at 195, the opinion does not provide the facts of that case or elaborate as to why the cash would be irrelevant. In addition, the Garcia court cited Lowder for support, erroneously concluding Lowder stood for the proposition that an “inference of criminal activity does not arise from possession of a relatively small amount of cash.” Id. As noted above, Lowder does not stand for this proposition.

Page 7

The Fifth District, also citing Lowder, has held cash on an individual’s person can be relevant in a trafficking case. Brown v. State, 766 So. 2d 485 (Fla. 5th DCA 2000). We agree.

In asserting possession of cash is irrelevant when a trafficking charge is based on possession alone, appellant places too heavy an emphasis on the possession element of his underlying charge and overlooks the broader purpose and reasoning of the trafficking statute. The language of the trafficking statute establishes its purpose is to provide stricter penalties for those who distribute large quantities of drugs. § 893.135(1)(b), Fla. Stat. (2008). Under the statute, the State may charge an individual in possession of large amounts of drugs with trafficking even though he or she has not been caught red-handed in the sale or distribution of those drugs. This is so because the possession of large amounts of cocaine infers the intent to sell or distribute at some point. The term “traffic” itself means to “trade or deal in.” Black’s Law Dictionary, 1502 (7th ed. 1999). Thus, unlike mere possession cases, the cash is relevant to this trafficking charge.

Accordingly, appellant’s possession of $1000 cash at the time of his arrest does tend to prove appellant had or was intending to engage in distribution or sale of the large amounts of cocaine in his possession and we affirm the trial court’s holding on the matter. See Mosley v. State, 1 So. 3d 261 (Fla. 4th DCA 2009)

Page 8

(noting cash found on defendant was irrelevant in a simple possession case because appellant was not charged with trafficking).

Finally, while reversal renders appellant’s written sentence and judgment invalid, we write to address an error in the judgment. Specifically, the written sentence included the following relevant provision: “X the defendant’s Drivers License shall be suspended for 2 years.” A trial court may not direct that a defendant’s license be suspended. See Parker v. State, 655 So. 2d 1308, 1308 (Fla. 1st DCA 1995) (holding, per section 322.055, Florida Statutes, a trial court only has the authority to direct the Department of Highway Safety and Motor Vehicles to suspend a defendant’s license, but may not revoke the license itself); Crawford v. State, 651 So. 2d 731 (Fla. 4th DCA 1995) (holding the same). For the foregoing reasons, we reverse appellant’s conviction and sentence and remand for further proceedings.

THOMAS, J., CONCURS; WEBSTER, J., CONCURS WITH OPINION.

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

—————

Notes:

* Due to the heightened use of videotaping by law enforcement during traffic stops and the State’s reliance on such footage as evidence for prosecutions, the State should be diligent in its efforts to carefully screen tapes prior to trial to avoid causing evidentiary issues similar to the one in the instant case.

—————

Page 9

WEBSTER, J., concurring.

I agree completely with the analyses employed, and the results reached, in Judge Wolf’s opinion. I write only to draw attention to what appears to be a trend in criminal prosecutions—the desire by prosecuting attorneys to obtain a conviction at any cost, regardless of the means necessary to do so.

It is apparent from the transcript of the trial that the prosecutor deliberately sought to plant in the minds of the jury the impression that appellant had previously been arrested, even though the prosecutor knew that was not the case. Rather than assisting the trial court to do the legally correct thing, the prosecutor convinced the trial court to commit the error because of which we are constrained to reverse appellant’s conviction. Had the prosecutor, instead, agreed either not to play that portion of the videotape to the jury or to permit appellant to testify that he had not, in fact, previously been arrested, this case would not have to be retried.

The type of gamesmanship in which the prosecutor engaged is antithetical to his duty as an officer of the court. It is, in addition, antithetical to his responsibility as a prosecutor. In our system of justice, procuring convictions is not the principal responsibility of prosecuting attorneys; rather, their principal responsibility is to ensure that justice is done, regardless of the outcome in any particular case. See, e.g., Newton v. State, 178 So. 2d 341, 344 (Fla. 2d DCA 1965). In this sense, prosecuting attorneys are the holders of a great public trust. They are charged with

Page 10

defending and preserving the constitutions of this state and of the United States, including that portion of each which affords to one accused of a crime the right to due process of law—that the game is played according to the rules, so to speak. Unfortunately, because the prosecutor here lost sight of these principles, we are constrained to reverse appellant’s conviction, and to remand the case for a new trial.

DARIUS HUNTER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1976.

District Court of Appeal of Florida, Fourth District.

March 31, 2010

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Mily Rodriguez-Powell, Judge, L.T. Case No. 06-13921.

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

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

WARNER, J.

In challenging his convictions for possession of cocaine and resisting without violence, appellant claims that the trial court erred in denying his motion to suppress and motion for judgment of acquittal, which were both based upon his contention that the officers who stopped him lacked reasonable suspicion of a crime. We agree that the totality of the circumstances did not amount to reasonable suspicion that a criminal act had occurred or was about to occur. We reverse.

At the suppression hearing two officers with the Fort Lauderdale Police Department testified that they were working a burglary deterrence action plan on an August evening. Sometime between eleven and midnight they received a dispatch call regarding “a couple of black males standing behind a closed church in a dark alleyway.” The officers drove to the area and stopped, and one of them exited the vehicle and saw two black males sitting¹ under a tree in an area which was half-way between a closed church and an apartment complex. The church and the residences essentially backed up to one another, with an alley in between them. Thus, the backyard of the residential complex was on the alleyway on one side, and the back of the church was on the other side.

Before announcing his presence, the officer observed the men sitting and rummaging into their pockets. He believed that they were in an area

Page 2

“where normal people wouldn’t be,” in the dark behind closed businesses and a church. The officers were on a team to deter burglaries, although the officers never testified that there had been burglaries in the area or that it was a “high crime” area. The officer’s intent at that point was to investigate the men. He did not intend to search them but just to make contact with them.

The officer approached and announced his presence, saying “Police.” He did not order the men to stop. The men stood up and ran around the corner of the residence. The officer followed them and stopped them as they tried to enter the residence, briefly struggling with appellant Hunter. After the officer subdued Hunter, Hunter gave him an incorrect name. The officer arrested him, searched him, and found cocaine.²

Based upon the totality of circumstances, the trial court found that the officers had reasonable suspicion of loitering and prowling sufficient to stop Hunter and his co-defendant. The officers had received a dispatch reporting “suspicious activity” of two males sitting behind a closed church in a dark alleyway. The first officer saw the men with their hands in their pockets, and the men ran away when the officers announced their presence. The court determined that when the officers captured Hunter and he gave them an incorrect name, they had probable cause to arrest him. The court denied the motion to suppress.

At trial, Hunter moved for judgment of acquittal as to the resisting arrest charge, arguing that the officers had no basis to order him to stop and thus were not within the lawful performance of their duties. The court denied the motion, and the jury found Hunter guilty on both charges. Hunter appeals the denial of the motion to suppress as well as the denial of the motion for judgment of acquittal.

We review a trial court’s ruling on a motion to suppress as a mixed question of law and fact. A reviewing court presumes the trial court’s findings as to historical facts to be correct but reviews rulings on questions of law de novo. Falls v. State, 953 So. 2d 627 (Fla. 4th DCA 2007); Hollingsworth v. State, 991 So. 2d 990 (Fla. 4th DCA 2008).

To justify a stop, the police must have reasonable suspicion that criminal activity is afoot. In Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000), the Supreme Court explained:

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While “reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). The officer must be able to articulate more than an “inchoate and unparticularized suspicion or `hunch’” of criminal activity. [Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)].

(footnote omitted). Following Wardlow, our supreme court recently summarized the requirements for a reasonable suspicion stop:

A stop is justified when an officer observes facts giving rise to a reasonable and well-founded suspicion that criminal activity has occurred or is about to occur. See Davis v. State, 973 So. 2d 1277, 1279 (Fla. 2d DCA 2008); see also Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). In turn, whether an officer’s well-founded suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the investigatory stop and is based solely on facts known to the officer before the stop. See Travers v. State, 739 So. 2d 1262, 1263 (Fla. 2d DCA 1999); McCloud v. State, 491 So. 2d 1164, 1165 (Fla. 2d DCA 1986).

C.E.L. v. State, 24 So. 3d 1181, 1186 (Fla. 2009).

Hunter argues that the trial court erred in denying his motion to suppress the cocaine because the evidence failed to show that the officers had a reasonable suspicion that he had committed, was committing or about to commit a crime when they stopped him. The state contends that the totality of the circumstances supported the officers’ suspicion that Hunter was loitering and prowling when they observed him.

In E.C. v. State, 724 So. 2d 1243, 1244-45 (Fla. 4th DCA 1999), we explained the elements of loitering and prowling:

To prove a charge of loitering and prowling, under section 856.021, Florida Statutes, the state must prove that (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; and (2) the loitering and prowling were under circumstances that

Page 4

warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. See State v. Ecker, 311 So. 2d 104, 106 (Fla. 1975). With respect to the first element, the state must establish that the defendant engaged in incipient criminal behavior which lawabiding people do not usually engage in due to the time, place, or manner of the conduct involved. See D.A. v. State, 471 So. 2d 147, 151 (Fla. 3d DCA 1985). The gist of this element is conduct which comes close to, but falls short of, the actual commission or attempted commission of a substantive crime and which must be alarming in nature, pointing toward an imminent breach of the peace or threat to public safety. Id. The statute is not directed at mere idling. Ecker, 311 So. 2d at 110; D.A., 471 So. 2d at 152.

Moreover, the conduct constituting the offense of loitering and prowling must be complete before any police action occurs. See Hollingsworth v. State, 991 So. 2d 990, 992 (Fla. 4th DCA 2008).

In Hollingsworth, we reversed an order denying a motion to suppress because the officers had not observed any conduct which would satisfy the elements of loitering prior to attempting a stop of the defendant. The officers had been called in the evening to an area of closed businesses because of drug activity. While parked along the street, the officers observed Hollingsworth walking along the street. When she saw the officers, she turned and walked briskly in the opposite direction and disappeared around a corner. The officers pursued her and saw her ducking behind a vehicle. She continued to flee, and the officers detained her. They arrested her for loitering and prowling, and a search revealed drugs.

Because the officers observed no conduct which raised a justifiable and reasonable alarm that a breach of the peace or threat to public safety was imminent, we held that the officers did not have reasonable suspicion to stop Hollingsworth. Mere presence in an area of closed businesses at a late hour was insufficient to raise an alarm of immediate threat to public safety. The mere fact that she fled and attempted to conceal herself after observing the police could not be “retroactively” used to support a suspicion of imminent criminal conduct.

In contrast, where a defendant was observed at 2:15 a.m., secreting himself in hedges between two rooming houses, by an officer who recognized the defendant and knew that the houses were not the defendant’s stated residence, we agreed that such conduct was not usual

Page 5

for law abiding citizens. See Battle v. State, 868 So. 2d 587 (Fla. 4th DCA 2004). When the defendant attempted to hide something upon being observed by the officer, we held that the officer had reasonable suspicion that the defendant was loitering and prowling. Thus, the officer had reasonable suspicion to stop the defendant, who tried to walk away from the officer.

In this case, the totality of the facts does not support the conclusion that the defendants were loitering and prowling. The officer received a dispatch reporting a call regarding men in a dark alleyway behind a closed church, which the officers termed a “suspicious incident.” The anonymous report does not provide reasonable suspicion to stop unless the officers themselves observed corroborating evidence. See Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).

When the officers arrived, they observed Hunter and his co-defendant sitting equidistant between residences and a closed church. As in Hollingsworth, mere presence close to closed businesses in the late evening is insufficient to justify alarm of imminent criminal activity. See also D.S.D. v. State, 997 So. 2d 1191, 1193 (Fla. 5th DCA 2008). Because they were as close to the residences as they were to the churches, the facts do not suggest that they were engaged or were about to engage in criminal activity. It is equally likely that they were sitting outside their residence enjoying a summer evening.

One officer saw the defendants rummaging in their pockets. Yet we fail to see how rummaging in one’s pockets while seated under a tree in a backyard constitutes an act suggestive of criminal conduct. The officers did not describe this activity as an act of concealment, because the officers had not announced their presence before they observed this conduct.

Although the defendants both fled toward their residence when the officers announced their presence, this flight does not retroactively supply the elements that an officer must observe to satisfy the requirements of loitering and prowling. See Hollingsworth. In the seminal case of State v. Ecker, 311 So. 2d 104, 110 (Fla. 1975), our supreme court, after stating the two essential elements of loitering and prowling, said, “Clearly, when these elements are established and the individual either refuses or fails to properly identify himself or flees when confronted by a law enforcement office, the offense has been established.” (Emphasis and italics added). Mere flight from officers, without the officers having a factually based reasonable suspicion that criminal conduct either had occurred or was imminent, is insufficient.

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Because the facts do not show that the officers had any more than a bare suspicion of any incipient criminal conduct when they approached the seated Hunter, the trial court should have granted the motion to suppress the evidence seized as a result of the stop and seizure. Therefore, we reverse appellant’s conviction for possession of cocaine. Because the cocaine must be suppressed, appellant is entitled to discharge on the charge of possession of cocaine.

We also reverse the denial of Hunter’s motion for judgment of acquittal as to the charge of resisting arrest without violence. To convict for resisting an officer without violence the state must show that: 1) the officer was engaged in the lawful execution of a legal duty; and 2) the action by the defendant constituted obstruction or resistance to the lawful duty. See Blue v. State, 837 So. 2d 541, 547 (Fla. 4th DCA 2003). The officers had no reasonable suspicion to stop Hunter. Therefore, they were not engaged in the lawful execution of a legal duty. See Davis v. State, 973 So. 2d 1277, 1279 (Fla. 2d DCA 2008). Hunter is entitled to discharge on this crime, as well. Id.

Reversed and remanded with instructions for the court to discharge appellant on both charges.

Polen and Stevenson, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. At trial the officers testified that the men were sitting in chairs. The chairs were not mentioned at the motion to suppress.

2. The second officer also testified to essentially the same facts.

—————

KEVIN BRIAN BASS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-528.

District Court of Appeal of Florida, First District.

Opinion filed March 31, 2010.

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

Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

ROWE, J.

The appellant, Kevin Brian Bass, appeals his conviction of sexual battery on a child less than 12 years old. The appellant raises two issues on appeal: (I) whether the trial court abused its discretion by not questioning a juror who

Page 2

appeared upset and who made comments indicating that she was upset, and (II) whether the trial court erred by allowing the state to introduce several witnesses who testified regarding out-of-court statements made by the child victim. We affirm as to both issues.

We reject the appellant’s assertion that the trial court abused its discretion by not questioning a juror who was temporarily upset after hearing the testimony of the five year-old victim. The record reveals that upon returning from a brief recess following the victim’s testimony, the juror “seemed a little teary” and made a comment to the court security officer during the recess indicating that she was upset. When brought to the trial judge’s attention, he addressed the jury by stating that he was aware of the difficult subject matter, but as the finders of fact they should not be influenced by feeling angry at or sorry for anyone; additionally, they should not allow prejudice, bias, or sympathy to influence their decision; instead, they should keep an open mind and hear all the evidence. After the jury instructions were read, the juror “cleared up.”

During the next break, outside of the presence of the jury, the trial court entertained arguments from both sides regarding the juror. The defense counsel expressed concern that the juror might be sympathetic towards the victim and that she had predetermined her decision prior to the presentation of all the evidence. The trial court declared that it was going to allow the juror to remain on the jury,

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but it would observe her and would revisit the situation if necessary. The record does not demonstrate that the juror was observed to exhibit any other emotional expressions. The record reflects that the juror subsequently approached the court security officer on her own and told the officer that she was “doing better.”

Dealing with the conduct of jurors is left to the sound discretion of the trial court. See Gore v. State, 475 So. 2d 1205, 1209 (Fla. 1985); Bauta v. State, 698 So. 2d 860, 861-62 (Fla. 3d DCA 1997). The appellant argues that in this case it was error for the trial court to require the juror to “tough it out,” citing Thomas v. State, 748 So. 2d 970 (Fla. 1999), for the proposition that “[hostilities ultimately evidenced by crying jurors are hardly indicative of reliable deliberations.” Id. at 979. However, the appellant’s reliance upon Thomas is misplaced. In Thomas, the supreme court found that under the “extreme prevailing circumstances” of that case, the cumulative nature of the trial judge’s actions and comments created a “substantial risk of coercion, or at the very least, constituted undue pressure” upon a lone holdout juror. Id. at 977. The facts in the instant case do not give rise to the “undue pressure” found to be reversible error in Thomas.

As the trial court properly noted, jurors are human beings and, therefore, subject to a range of emotions, especially in difficult cases.¹ Here, the trial court

Page 4

had a first-hand opportunity to view the demeanor of the juror in question. The court made a finding on the record that the juror remained attentive, and although she initially “seemed a little teary eyed” after the victim’s testimony, she “cleared up” after the court read the relevant portions of the jury instructions. The record demonstrates that the juror did not continue to display emotions, she did not make any subsequent comments, and she voluntarily informed the court security officer that she was doing better. Given these circumstances we do not find that the trial court abused its discretion by not questioning a juror who appeared upset where the court instructed the jury on sympathy and monitored the juror throughout the trial. See Murray v. State, 356 So. 2d 71, 72 (Fla. 1st DCA 1978) (finding that where juror cried during the polling of jury, it was not an abuse of discretion for trial court to prohibit defense counsel from interviewing juror after trial); Argon v. State, 853 So. 2d 584, 589 (Fla. 5th DCA 2003) (noting that “juror’s statement that she felt unqualified to make a difficult decision in a serious case and that she cried during the polling procedure” did not “form the basis of a reasonable belief

Page 5

that the verdict may be subject to legal challenge”); Williams v. State, 689 So. 2d 393, 398 (Fla. 3d DCA 1997) (citing with approval a New Jersey Supreme Court opinion which held that trial court’s failure to examine juror who cried during the victim’s testimony did not constitute reversible error).

Under issue II, the appellant argues that while the testimony of several witnesses regarding hearsay statements made by the victim were admissible under section 90.803(23), Florida Statutes, the statements were nevertheless inadmissible under section 90.403, Florida Statutes.² After a thorough review of the record, we find that the appellant’s argument under issue II was not properly preserved for appellate review. See Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985).

Initially, we note that section 90.803(23), Florida Statutes, allows for the introduction of testimony concerning hearsay statements made by a child-victim under the age of 11 regarding the abuse, if the trial court determines the statements are sufficiently reliable. § 90.803(23), Fla. Stat. The supreme court has noted that the language of section 90.803(23) provides that “a child victim’s hearsay statement is not excludable per se as hearsay, or as a prior consistent statement,

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even though the child testifies fully at trial.” Pardo v. State, 596 So. 2d 665, 667 (Fla. 1992). However, the court noted that the evidence could still be deemed inadmissible if the trial court determined that the probative value was substantially outweighed by the danger of unfair prejudice under section 90.403, Florida Statutes. Id. at 667-68.

In Reynolds v. State, 660 So. 2d 778, 780 (Fla. 4th DCA 1995), the appellant argued that “the trial court erred in overruling Appellant’s objections at trial, that the four hearsay witnesses’ testimony was `cumulative’” in violation of section 90.403, Florida Statutes. The court in Reynolds concluded that the issue had not been preserved for appeal. Id. (citing Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982)). In Reynolds the court noted that an objection “to testimony on the grounds that it is `cumulative,’ without more,” did not properly alert the trial court “that the objection is based upon a contention that the probative value of the otherwise admissible evidence is outweighed by the danger of unfair prejudice.” Id.

Here, prior to and during trial the defense counsel’s objections centered on the grounds that the witnesss’ testimony regarding the victim’s statements would be prior consistent statements and would, therefore, improperly bolster the victim’s trial testimony. The trial court properly ruled that the specific hearsay exception contained in section 90.803(23), Florida Statutes, trumped the bolstering and prior

Page 7

consistent statement arguments advanced by the defense counsel. See Pardo, 596 So. 2d at 667. At no time did the defense counsel alert the trial court that his objection was based upon the contention that the testimony’s probative value was substantially outweighed by the needless presentation of cumulative evidence.

During a pretrial hearing, the defense counsel stated that he predicted the state would “parade in four or five witnesses” to testify about the child’s hearsay statements; however, this was never ruled upon or raised again. The defense counsel’s statement regarding the state “parading in witnesses” is similar to the “cumulative” objection made in Reynolds, which the court found did not preserve a section 90.403 objection. Id. at 780. Accordingly, we find that the appellant’s argument that the trial court erred by allowing the hearsay testimony of multiple witnesses has not been properly preserved for appellate review. See id.; Anderson v. State, 598 So. 2d 276, 276-77 (Fla. 1st DCA 1992) (holding that although under Pardo trial court must conduct section 90.403 analysis, appellant did not preserve that issue for appellate review).

Had the appellant’s argument been properly preserved, we would conclude that his argument does not merit reversal because the probative value of the witnesses’ testimony was not substantially outweighed by the presentation of similar evidence of the out-of-court statement by multiple witnesses, especially since the defense counsel was allowed to attack the credibility of several of the

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witnesses at trial. See Moore v. State, 943 So. 2d 296, 297 (Fla. 1st DCA 2006) (holding that a trial judge did not abuse its discretion by allowing three witnesses to testify concerning the child’s hearsay statements).

Accordingly, we AFFIRM the appellant’s judgment and sentence.

VAN NORTWICK and LEWIS, JJ., CONCUR.

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

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Notes:

1. As aptly characterized by the Fifth District,

The jurors hear the evidence and the legal instructions and then struggle to sort through it all as they search for the truth. Often times they must make extraordinarily difficult decisions in cases that have very serious consequences for all of the participants. To allow inquiry into the jurors’ emotions and feelings of inadequacy as they go through this often difficult process is to expect something closer to perfection than they and our judicial system can legitimately be expected to give.

Aragon v. State, 853 So. 2d 584, 589 (Fla. 5th DCA 2003).

2. Section 90.403, Florida Statutes, provides as follows:

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. This section shall not be construed to mean that evidence of the existence of available third-party benefits is inadmissible.

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JUAN JOSE FARIAS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-406.

District Court of Appeal of Florida, Fourth District.

March 31, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Gary L. Sweet, Judge, L.T. Case No. 562004CF3201A.

Jonathan Jay Kirschner, of Jonathan Jay Kirschner, Esq. & Associates, LLC, Fort Pierce, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Defendant Juan Jose Farias appeals a final judgment of conviction and sentence for one count of lewd or lascivious molestation of a child under 12. He raises three issues on appeal: (1) whether the trial court committed reversible error in admitting photographic evidence; (2) whether the trial court erred in admitting child-victim hearsay testimony; and (3) whether the prosecutor engaged in prosecutorial misconduct that constituted fundamental error. We affirm as to the second and third issues, but reverse because of the erroneous admission of photographic evidence and remand for a new trial.

The state presented evidence at trial that the defendant inappropriately touched the seven-year-old victim while she was sleeping over at the home of her friend, the defendant’s daughter. According to the victim, the defendant slid his hand into her shorts and underwear and wiggled his finger around the lips of her vagina, then laughed. The next morning the victim, J.L., told her grandmother and mother about the incident. Later she wrote a letter memorializing her recollection of what happened, and several days later, spoke to Detective LaGrega of the Port St. Lucie Police Department about the incident.

Dr. Cariello, a physician at St. Lucie Medical Center’s emergency department, interviewed J.L. and examined her the day after the molestation. The examination did not reveal any evidence of tenderness, bleeding, swelling, redness, or discharge in the vaginal area, and showed her “hymen not intact.” An investigating officer took several photographs of the examination.

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At trial, the state attempted several times to introduce into evidence the photographs taken of J.L.’s hospital examination. The state first sought admission of the photographs after the victim’s mother testified about the examination. Defendant objected, arguing that a predicate had not been established to show the relevancy of the photographs and that their admission would be unduly prejudicial, since the doctor would testify that he observed no evidence of external or internal injury. When the trial court questioned the state about the relevancy of the photographs, the state responded that a nurse who examined J.L. disagreed with the doctor’s opinion that there was no redness in the vaginal area and that the jurors could look at the photos and decide this matter for themselves. The state further argued that the photographs were relevant “to show the jury what [J.L.] went through as part of her examination.” The defendant maintained that the photographs were inflammatory and reminded the court that an order in limine previously entered by the court precluded any testimony about the nurse’s observations.

The court sustained the objection, finding that “what the victim went through” was not material to whether or not the defendant committed the crime. However, after the state continued with this line of argument, the court decided to reserve on its ruling.

Dr. Lustgarten, a urologist, testified about the results of the urinalysis performed during J.L.’s emergency room examination. The report revealed that J.L.’s urinalysis was abnormal. The presence of trace bacteria, five to ten red blood cells, and twenty to thirty white blood cells indicated infection. In his opinion, there was possibly an infection that could have come from trauma; healthy children usually do not have abnormal urinalyses. Dr. Lustgarten testified that manipulation, not necessarily internal, can cause abnormal results and explained that it is unlikely for a child to have an abnormal urinalysis without some kind of manipulation.

After Dr. Lustgarten’s testimony, the trial court, over the defendant’s objection, admitted one of the photographs of the vaginal examination. The photograph shows J.L. lying on a hospital bed with her knees bent and someone holding her legs apart to fully expose her vagina. The court determined that the photograph was relevant to show that someone would not falsely report a sexual assault and thereby subject herself to such an examination. Defense counsel objected “because [the victim] wouldn’t have known that that was part of the process when she made

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the complaint.” The court overruled the objection and admitted the photograph.¹

Defendant called Dr. Cariello, who testified that there did not appear to be recent injury to the hymen and explained, on cross-examination, that a hymen can be damaged in ways other than by molestation. He mentioned a child’s playing as a possibility and noted that each person’s body is different. Dr. Cariello also told the jury how he conducted the interview and physical exam. He did not use a rape kit; he just performed an external physical exam.

During cross-examination, the state showed Dr. Cariello the photograph at issue and asked him if it was a fair and accurate depiction of the victim’s vaginal examination. He replied that it was. The state then asked, “Now is this generally something that people who are getting this examination done, is this fun for them?” Dr. Cariello answered, “No. . . it’s not a pleasant thing for anyone to do.” The state then published the photograph to the jury.

The jury found the defendant guilty of lewd or lascivious molestation. He was sentenced to fifteen years in prison, followed by ten years of sex offender probation.

Defendant argues that the trial court erred in admitting the photograph of the child’s examination because it was irrelevant to the issue of sexual abuse and served only to inflame the jury. The state responds, first, that the defendant failed to preserve this issue for appeal because he did not object when the state published the photograph during its cross-examination of Dr. Cariello. A contemporaneous objection must be made when evidence is offered for admission. Rodriguez v. State, 919 So. 2d 1252, 1286 (Fla. 2005). Here, the defendant objected each time the photograph was offered into evidence. Once the photograph was admitted, over his objection, Defendant did not need to repeat his objection before it was published to the jury. See LeRetilley v. Harris, 354 So. 2d 1213, 1214 (Fla. 4th DCA 1978) (stating that “there is normally no need to object repeatedly every time the same error is made providing the court has ruled thereon.”).

On the merits, the state argues that the photograph was a fair and accurate depiction of the physical examination that was conducted soon

Page 4

after the child reported the incident and that it was relevant to refute the defendant’s claim that the child fabricated the story. The state further argues that any error in admitting the photograph was harmless beyond a reasonable doubt.

The admission of photographs is reviewed under the abuse of discretion standard. Welch v. State, 992 So. 2d 206, 216 (Fla. 2008). “The test for admissibility of photographic evidence is relevancy rather than necessity.” Id. (quoting Douglas v. State, 878 So. 2d 1246, 1255 (Fla. 2004)). For photographic evidence to be relevant, it must logically tend to prove or disprove a material fact. §§ 90.401-90.402, Fla. Stat. (2008). Even if the evidence is relevant, it may be inadmissible under the section 90.403 balancing test, if the “probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Further, the trial court may decline to admit photographs if it determines that the “gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jur[ors] and [distract] them from a fair and unimpassioned consideration of the evidence.” Welch, 992 So. 2d at 216 (quoting Douglas, 878 So. 2d at 1255) (alterations in original).

Here, the photograph had little or no relevance. Although the photograph illustrated Dr. Cariello’s testimony concerning the physical examination he performed on the victim, it did not tend to prove or disprove a material fact that was in dispute in this case. The doctor testified that the victim suffered no visible external injuries as a result of the alleged molestation, and no evidence to the contrary was presented at trial. Besides, a defendant can be guilty of lewd or lascivious molestation without causing any damage to the victim’s vagina. The only issue before the jury was whether the defendant molested J.L., and the photo showing no injuries had no relevance to this issue.

In any case, the state did not introduce the photograph to demonstrate the presence or absence of any physical injuries to the victim. The state acknowledged that its purpose was to show the jury the embarrassing and uncomfortable medical procedures the victim had to endure after reporting the molestation. It explained that the child would not have lied about the incident and thus subjected herself to such an invasive examination. However, as the defendant pointed out, it is unlikely that a seven-year-old child would have known about this consequence of reporting the incident. We thus do not agree that the photograph was relevant to refute the defendant’s theory that the victim was untruthful about the incident.

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We conclude that the trial court erred in admitting the photograph. The photograph had minimal probative value, and its potential for offending the jury’s sensibilities and evoking sympathy for the victim was substantial. See Saxon v. State, 225 So. 2d 925, 927 (Fla. 4th DCA 1969) (holding that where photographs are irrelevant, and their only purpose for admission is to influence and prejudice the jury, it is error to admit them). Because we cannot say beyond a reasonable doubt that the improperly admitted photograph did not affect the jury’s verdict, we are unable to find the error harmless. See Ventura v. State, 35 Fla. L. Weekly S117 (Fla. Feb. 18, 2010); Goodwin v. State, 751 So. 2d 537 (Fla. 1999).

Reversed and Remanded for a new trial.

Farmer, J. and Levenson, Jeffrey R., Associate Judge., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. The trial court sustained the defendant’s objection as to the entire group of photographs to avoid “overkill,” but allowed the state to present the single photograph at issue.

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Tyrone Hutchinson, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-1639.

District Court of Appeal of Florida, Third District.

Opinion filed March 31, 2010.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Marisa Tinkler-Mendez, Judge, Lower Tribunal No. 01-27277.

Tyrone Hutchinson, in proper person.

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

Before ROTHENBERG, LAGOA, and SALTER, JJ.

ROTHENBERG, J.

On Rehearing

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Upon this Court’s own motion, we grant rehearing, withdraw this Court’s opinions issued on August 12, 2009, and February 3, 2010, and issue the following opinion in its stead.

Tyrone Hutchinson (”the defendant”) appeals from an order denying his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. Although we affirm, we do so without prejudice to the defendant’s right to pursue the remedy he seeks through an alternate means.

In October 2001, pursuant to a negotiated plea, the defendant pled guilty to the charge of robbery while armed with a weapon and was sentenced as a youthful offender to one year of community control followed by thirty months of probation. In conjunction with this plea, the trial court’s supervision order unambiguously provided that a violation of its terms would result in a five-year prison sentence.

In December 2001, an affidavit of violation of community control was filed against the defendant when he absconded from his supervision and his whereabouts became unknown. Although a warrant was issued for the defendant’s arrest, he was not immediately apprehended. In July 2002, the defendant was convicted of three counts of burglary in Illinois.

In September 2005, the defendant was returned to the Florida trial court, where he entered into a negotiated plea wherein he pled guilty to the community control violations alleged in the affidavit and he was sentenced to ten years

Page 3

incarceration despite the unambiguous language in the 2001 supervision order stating that upon a violation of the defendant’s supervision, he would be sentenced to a term of five years incarceration.

Nearly two years after accepting the ten-year plea offer, in July 2007, and within two years from the date his sentence became final, the defendant filed a motion to correct illegal sentence pursuant to rule 3.800, alleging that he should have been sentenced to five years in prison in accordance with his October 2001 plea and the supervision order. The trial court denied the motion as legally insufficient. The defendant did not appeal that order.

In October 2007, the defendant filed a second motion to correct his sentence pursuant to rule 3.800. Approximately two months later, the trial court denied the motion upon the same grounds as the first (July 2007) motion. Again, the defendant did not appeal the trial court’s order.

In March 2008, the defendant filed the instant motion to correct illegal sentence pursuant to rule 3.800. Once again, the trial court denied the motion. The defendant appeals from that decision.

The defendant claims that the trial court failed to impose the sentence the original sentencing judge agreed would be imposed upon a violation of the defendant’s supervision. Thus, what the defendant is seeking is the enforcement of

Page 3

his October 2001 plea. Under the facts of this case, we conclude that rule 3.800 is, however, not the appropriate avenue to address the defendant’s claim.

First, we note that there is nothing “illegal” about the sentence imposed in 2005. The trial court imposed a ten year sentence. The maximum penalty for the offense of armed robbery is life imprisonment. The sentence imposed was based on a negotiated plea wherein the defendant waived his right to a hearing in exchange for the ten year sentence.

Second, and perhaps more importantly, the trial court could not logistically “enforce the terms of the 2001 plea” without allowing the defendant to withdraw his subsequent 2005 plea on the basis of ineffective assistance of counsel or because it was not a knowing, free and voluntary plea. A motion to vacate a plea under any of these grounds must be filed pursuant to rule 3.850, not rule 3.800. Rule 3.800 is not the proper remedy where issues of waiver, effectiveness of defense counsel, or voluntariness of a plea are involved. See Elbert v. State, 20 So. 3d 961, 962 (Fla. 2d DCA 2009) (noting that postconviction court properly treated portions of “motion to correct illegal sentence” as motion filed under rule 3.850 as claims alleged ineffective assistance of trial counsel and involuntariness of plea); Collins v. State, 859 So. 2d 1244, 1245 (Fla. 5th DCA 2003) (noting that claims of ineffective assistance of trial counsel and involuntariness of plea are properly raised in a timely 3.850 motion for postconviction relief); Patterson v. State, 664

Page 5

So. 2d 31, 32 (Fla. 4th DCA 1998) (holding that issues relating to ineffective assistance of trial counsel and involuntariness of plea should be raised in a rule 3.850 motion, not a petition for habeas corpus relief).

Lastly, for a sentence to be subject to correction under rule 3.800, the illegality must be revealed by the face of the record and determinable without an evidentiary hearing. State v. Mancino, 714 So. 2d 429 (Fla. 1998); Hopping v. State, 708 So. 2d 263 (Fla. 1998). Here, we are unable to determine the validity of the defendant’s claim by the record provided.

Thus, we conclude that although the original sentencing judge allegedly agreed in 2001 to sentence the defendant to five years upon a violation of the defendant’s supervision, because: (1) the defendant subsequently agreed in 2005 to the ten year sentence imposed when he violated his supervision; (2) he was represented by counsel when he accepted the ten year sentence; and (3) the sentence does not exceed the statutory maximum and is not otherwise an “illegal sentence,” the defendant may not seek relief from the 2005 negotiated plea by way of rule 3.800. The defendant must, instead, seek a remedy pursuant to rule 3.850 on the basis of ineffective assistance of counsel or the voluntariness of the plea. Accordingly, we affirm the trial court’s order denying the defendant relief under rule 3.800.

Page 6

Although the two-year time limitation for filing a motion pursuant to rule 3.850 has long passed, the defendant may not be without a remedy as our decision is without prejudice to the defendant’s right to seek habeas corpus relief if he can establish a manifest injustice. See Adams v. State, 957 So. 2d 1183 (Fla. 3d DCA 2006).

Although the record on appeal is not complete, it appears that in 2001, when the defendant pled guilty to armed robbery, the State and the trial court promised the defendant, in exchange for his guilty plea, that upon a violation of his supervision order he would receive a five-year term of imprisonment. As it happened, the defendant did violate the conditions of the supervision order. However, he was sentenced to ten years in prison. While the record reflects that the ten-year sentence imposed by the trial court was agreed to by the defendant, who was represented by counsel, it would appear that the defendant’s plea was the result of ineffective assistance of counsel unless there was a knowing and voluntary waiver by the defendant of the five-year sentence he was told he would be sentenced to upon a violation of his supervision.

In conclusion, we affirm the order on appeal denying relief pursuant to rule 3.800. However, if after reviewing the transcripts of the original 2001 plea to community control followed by probation, and the 2005 plea accepting a sentence of ten years, the defendant believes he is entitled to relief, the defendant may file a

Page 7

habeas corpus petition.¹ The trial court is instructed to consider any such petition in a manner consistent with this opinion.

Due to the novelty and complexity of the issues involved in this appeal, we hereby appoint the Public Defender’s Office to represent the defendant and pursue the appropriate relief at the trial level and at the appellate level, if an appeal is taken.

Affirmed with instructions.

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Notes:

1. Neither the 2001 transcript nor the 2005 transcript was provided by the defendant for review on appeal.

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RICHARD KITTLES, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-2269.

District Court of Appeal of Florida, Fourth District.

March 31, 2010.

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Carlos A. Rodriguez, Judge, L.T. Case No. 01-4270 CF10A.

Richard Kittles, Milton, pro se.

Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez Orosa, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant, Richard Kittles, timely appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. He contends that his sentence for misdemeanor crimes is illegal, because the trial court ordered it served in prison, while it could be served only in county jail under the facts of this case. We agree and reverse, as a trial court does not have the authority to impose a state prison sentence for a misdemeanor conviction unless the misdemeanor sentence is imposed concurrently with a felony sentence.

In lower tribunal case number 01-18121 CF in the Circuit Court of Broward County, appellant was convicted of two felonies and a misdemeanor, for which he was sentenced to concurrent sentences in state prison. In lower tribunal case number 01-4270 CF, appellant was convicted of three misdemeanors for which he was sentenced to a term of one year in the Department of Corrections on two of the counts and 60 days in Broward County Jail on the other. The sentences were to run concurrently with each other, but consecutive to the sentences imposed in case number 01-18121 CF.

Appellant filed a rule 3.800(a) motion to correct illegal sentence, claiming that his sentence in case number 01-4270 CF was illegal because those crimes carried only jail time. The state filed a response to appellant’s motion, arguing that summary denial was appropriate. However, while the state’s response addressed the permissibility of consecutive sentences, the state’s response never directly addressed whether it was permissible for the trial court to impose a one-year prison

Page 2

sentence, rather than one year in county jail, for appellant’s misdemeanor convictions in case number 01-4270 CF. Relying on the state’s response, the trial court summarily denied appellant’s motion, prompting this appeal.

Because a motion to correct a sentencing error involves a pure issue of law, our standard of review is de novo. See Willard v. State, 22 So. 3d 864, 864 (Fla. 4th DCA 2009). Florida Rule of Criminal Procedure 3.800(a) provides that “[a] court may at any time correct an illegal sentence imposed by it … when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief An “illegal sentence” for purposes of rule 3.800(a) is one which imposes a “kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.” See Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2001).

By definition, a “misdemeanor” is a criminal offense that is punishable by a term of imprisonment in a county correctional facility for a sentence “not in excess of 1 year.” § 775.08(2), Fla. Stat. (2001). While misdemeanors ordinarily are not punishable by imprisonment in a state prison, it is permissible for a court to impose a prison sentence for a misdemeanor if it is to be served in a state penitentiary concurrently with a felony prison sentence. See Anderson v. State, 617 So. 2d 827, 828 (Fla. 1st DCA 1993) (holding that it was permissible for the trial court to impose one-year sentences for first-degree misdemeanors to be served in the custody of the Department of Corrections concurrently with a felony sentence); see also Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986) (”We reject the state’s argument that Daniels’ trespassing sentence cannot be concurrent with his felony sentences.”)

However, where the misdemeanor sentence is not to be served concurrently with a felony prison sentence, a trial court does not have the authority to impose a state prison sentence for a misdemeanor conviction. See Flores v. State, 974 So. 2d 556, 559 (Fla. 5th DCA 2008) (stating that misdemeanors are not punishable by imprisonment in a state prison and that “when a defendant is convicted of both a felony and a misdemeanor, the trial court may properly sentence a defendant to county jail time on the misdemeanor to be followed by a prison sentence”); see also Giarraputo v. State, 447 So. 2d 1033, 1033 (Fla. 4th DCA 1984) (”In this case, a trial judge sentenced the defendant to 364 days in `Florida State Prison;’ on appeal, the state concedes that a sentence for less than one year cannot be served in any state penitentiary.”).

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Here, the judgment of conviction and sentence reveals that the trial court sentenced appellant to a term of one year in the custody of the Department of Corrections for misdemeanor crimes in case number 01-4270 CF, to run consecutive to a prison sentence imposed for felony convictions in another case. Because the sentencing order on its face reflects that appellant’s misdemeanor sentences in case number 01-4270 CF were not imposed concurrently to any felony sentence at the time of their imposition, we conclude that it was impermissible to impose a sentence of imprisonment in a state prison for appellant’s misdemeanors in that case. Accordingly, we reverse the summary denial of appellant’s rule 3.800(a) motion and remand with directions for the trial court to correct the sentencing order. The sentence can be corrected either by ordering it concurrent with the felony sentences in case number 01-18121 CF or by ordering the sentence in case number 01-4270 CF to be served in the county jail, rather than one year in state prison.

Remanded with directions.

POLEN and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

KEVIN M. LEGRAND, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-2022.

District Court of Appeal of Florida, First District.

Opinion filed March 31, 2010.

An appeal from the Circuit Court for Alachua County, Ysleta W. McDonald, Judge.

Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

MARSTILLER, J.

Appellant, Kevin LeGrand, was found guilty by a jury of burglary of an occupied dwelling and sentenced as a prison releasee reoffender to fifteen years in prison, with credit for 323 days time served. He appeals his conviction and

Page 2

sentence arguing that the trial court abused its discretion by failing to conduct a Nelson¹ inquiry and by dismissing his motion for postconviction relief for lack of jurisdiction. For the reasons below, we affirm.

Appellant filed a Motion for Nelson Inquiry approximately three months before trial claiming ineffective assistance of counsel. As grounds for the motion, Appellant stated that he felt he was not being “properly represented” by his appointed assistant public defender, that he had only met with the attorney three times in seven months, and that the attorney had not “thoroughly explained” the details of the case with him. The trial court summarily denied the motion finding that Appellant had not sufficiently raised incompetence of counsel as to warrant a hearing on his request to replace his attorney.

Immediately following trial, Appellant filed a pro se Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant primarily claimed ineffective assistance of counsel, alleging that his assistant public defender failed to call an important alibi witness, failed to depose the victim, and failed to properly present a motion to suppress. Appellant also complained of the trial court’s failure to conduct a Nelson hearing. He further stated in his 3.850 motion, “I am filing Notice of Appeal, pending this motion.” Four days later, before the trial court disposed of the motion, Appellant’s trial

Page 3

counsel filed a notice of appeal. The trial court subsequently dismissed the 3.850 motion, reasoning that the court lacks jurisdiction to consider the motion while Appellant’s conviction and sentence are on appeal in this Court. The dismissal order permits Appellant to re-file the motion after this appeal becomes final.

When a defendant seeks to discharge court-appointed counsel before trial, claiming that counsel is ineffective, “the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant.” Nelson v. State, 274 So. 2d 256, 258-59 (Fla. 4th DCA 1973). However, “a Nelson hearing [is] unwarranted where a defendant presents general complaints about defense counsel’s trial strategy and no formal allegations of incompetence have been made.” Morrison v. State, 818 So. 2d 432, 440 (Fla. 2002) (citing Davis v. State, 703 So. 2d 1055, 1058-59 (Fla. 1997); Gudinas v. State, 693 So. 2d 953, 962 n. 12 (Fla. 1997); Branch v. State, 685 So. 2d 1250, 1252 (Fla. 1996)). Dissatisfaction with court-appointed counsel, and complaints about trial strategy or the amount of communication with counsel are insufficient to require a Nelson inquiry. See Sexton v. State, 775 So. 2d 923, 931 (Fla. 2000) (disagreement with attorney’s trial strategy and preparation insufficient to support claim of incompetence); Watts v. State, 593 So. 2d 198, 203 (Fla. 1992) (defendant’s dissatisfaction that counsel had not visited him in jail not

Page 4

grounds to inquire about counsel’s effectiveness); Tucker v. State, 754 So. 2d 89, 93 (Fla. 2d DCA 2000) (defendant’s claim that counsel believed defendant was guilty did not require Nelson hearing); Dunn v. State, 730 So. 2d 309, 312 (Fla. 4th DCA 1999) (dissatisfaction with counsel’s trial preparation, witness development, and lack of contact did not constitute clear allegations of ineffective assistance). Rather, to trigger such inquiry, a defendant must present the trial court with specific allegations suggesting counsel’s ineffectiveness. Cf. Haugabook v. State, 689 So. 2d 1245, 1246 n. 1 (Fla. 4th DCA 1997) (Nelson inquiry would have been required where defendant alleged that counsel failed to adequately object to State’s peremptory exclusions of black jurors, but defendant’s motion to discharge counsel was untimely). Here, Appellant sought a Nelson inquiry because he felt he was not being “properly represented” by court-appointed counsel, who had neither met with him often enough nor sufficiently explained “the details of the case.” We consider these general complaints, insufficient to suggest ineffective assistance of defense counsel. As such, the trial was not required to conduct a Nelson hearing. Morrison, 818 So. 2d at 440.

As to Appellant’s second issue on appeal, we find that Appellant abandoned his motion for postconviction relief when he filed his notice of appeal in this Court. See Carter v. State, 929 So. 2d 1161, 1162 (Fla. 5th DCA 2006). Accordingly, trial court appropriately dismissed Appellant’s motion for lack of jurisdiction with

Page 5

leave to re-file after this appeal becomes final. See Hogarth v. State, 970 So. 2d 880, 880 (Fla. 1st DCA 2007); Rivera v. State, 913 So. 2d 769, 770 (Fla. 5th DCA 2005).

AFFIRMED.

WOLF and LEWIS, JJ., CONCUR.

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

—————

Notes:

1. Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

—————

MARIE FRANCIS a/k/a MONICA BAILEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-547.

District Court of Appeal of Florida, Fourth District.

March 31, 2010.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Lucy Chernow Brown, Judge, L.T. Case No. 1984CF005990AXXMB.

Benjamin S. Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING, TO WRITE OPINION, OR FOR REHEARING EN BANC

PER CURIAM.

Appellant Marie Francis’s motion for rehearing and for an opinion is granted. Her motion for rehearing en banc is denied. We withdraw our previous per curiam affirmance and substitute the following opinion in its place.

Marie Francis, once known as Monica Bailey, appeals a trial court order summarily denying her motion for postconviction relief and a motion for rehearing which followed. In her motion, she alleged failure of the trial court to advise her during her 1984 guilty plea to possession of marijuana in excess of twenty grams that her plea could subject her to deportation. In a duly verified supplement to her motion, she added an allegation that her defense counsel affirmatively misadvised her that she would never be deported as the result of her guilty plea and conviction in this case.

When the trial court summarily denied relief, apparently it had not received or reviewed the supplement to the motion alleging affirmative misadvice of counsel, because the order stated that she had not alleged positive or affirmative advice of counsel. On rehearing, the trial court again denied relief, stating that even with the supplement alleging affirmative misadvice of counsel, the motion should fail on its merits because deportation is a collateral consequence of a plea and a defendant is not entitled to relief when the court or counsel failed to

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advise her of the possibility of deportation. That rationale would apply if Francis were alleging only failure to advise of the deportation consequences rather than affirmative misadvice as well. The trial court noted that Fla. R. Crim. P. 3.172(c) was amended effective January 1, 1989 to add a subsection (8) which required that a defendant entering a plea to be advised of the possibility of deportation. Francis pleaded guilty in 1984, before this date, which does not apply retroactively. State v. Haddad, 950 So. 2d 434 (Fla. 1st DCA 2007). Thus, the plea may be attacked in this case only if the defendant received positive or affirmative misadvice of counsel regarding immigration or deportation consequences. Id. at 436-37. Francis satisfied that pleading requirement.

Francis’s motion was filed within the two-year window period allowed for comparable claims in State v. Green, 944 So. 2d 208 (Fla. 2006). The state has argued in its response filed here, and for the first time, that laches should bar relief in this case since Francis entered her plea twenty-four years before filing her rule 3.850 motion. Laches is a defense requiring proof of lack of diligence by the party against whom the defense is asserted, and prejudice to the party asserting the defense. Resolution of a claim of laches often involves factual issues and requires an evidentiary hearing. Love v. State, 814 So. 2d 475, 478 (Fla. 4th DCA 2002). See also Bain v. State, 9 So. 3d 723 (Fla. 2d DCA 2009).

Here, an evidentiary hearing on laches as a defense for the state is warranted. Francis has advised that a transcript of her plea hearing is not available, but her claim is one of affirmative misadvice of her counsel, which would not necessarily have been recorded in a hearing transcript. Her claim may require an evidentiary hearing in which she and her counsel testify as to what transpired in her case. She has not alleged, and the state has not alleged or demonstrated, that this testimony is not available. It remains possible that the state will be able to demonstrate prejudice below by the unavailability of a transcript which could refute any evidence presented on the claim of affirmative misadvice, but this will be for the trial court to determine. The claim of laches cannot be resolved in this court as a matter of law, but should be considered by the trial court on remand.

For these reasons we reverse the trial court’s order summarily denying relief on the merits and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.

HARVEY LEE PARKES, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-4790.

District Court of Appeal of Florida, First District.

Opinion filed March 31, 2010.

An appeal from the Circuit Court for Bay County, Richard Albritton, Judge.

Harvey Lee Parkes, pro se, Appellant.

Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse and remand the denial of ground one. We affirm the denial of ground two without further discussion.

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In ground one of his motion, Appellant asserts that his consecutive minimum mandatory sentences for first-degree murder and robbery with a firearm are illegal because the crimes arose from a single criminal episode. The trial court denied the motion on the basis of Downs v. State, 616 So. 2d 444 (Fla. 1993). In Downs, the defendant was convicted of first-degree murder and aggravated assault for killing his wife and then threatening a witness to the murder. Id. at 445. He was sentenced to life imprisonment without the possibility of parole for 25 years on the murder charge. Id. He was sentenced to 5 years’ imprisonment on the aggravated assault charge, with a 3-year minimum mandatory for using a firearm during the commission of the aggravated assault. Id. The sentences, including the minimum mandatories, were imposed consecutively. Id. The issue presented was:

Whether a trial judge has discretion to stack minimum mandatory sentences in cases involving capital felonies together with non-capital felonies committed with use of a firearm, where the predicate offenses all occurred during the course of the same criminal episode?

Id. at 444-45. The supreme court answered in the affirmative, holding that the consecutive 25- and 3-year minimum mandatory sentences were proper. Id. The Downs court reasoned: “When the same crime is committed in a nonsimultaneous manner or when different crimes are committed in the same episode . . . minimum mandatory sentences can be consecutive.” Id. at 445.

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However, a few years later the Florida Supreme Court decided Boler v. State, 678 So. 2d 319 (Fla. 1996). In Boler, the defendant was convicted of firstdegree felony murder and robbery (the underlying felony) for killing a convenience store clerk during an armed robbery. The defendant was sentenced to life imprisonment with a 25-year minimum mandatory for first-degree murder. Id. at 322. He was given a consecutive life sentence for the robbery, which included a 3-year minimum mandatory for the use of a firearm. Id. The main issue was whether a defendant could be convicted and sentenced for both felony murder and the underlying crime; the court held that such convictions and sentences were proper. Id. at 320-22. However, the court also addressed an additional sentencing issue: The defendant asserted that the minimum mandatory portions of the sentences could not be imposed consecutively. Id. at 322. The Boler majority held that the 3-year minimum mandatory sentence for the underlying robbery could not be imposed consecutively to the 25-year minimum mandatory for felony murder. Id. at 323. We conclude that Boler, rather than Downs, applies. See Hall v. State, 14 So. 3d 1081 (Fla. 1st DCA 2009) (holding that Boler controls where a defendant is convicted of felony murder and the underlying crime involved the same victim, therefore, the trial court could not impose the 3-year minimum mandatory for possession of a firearm consecutively to the 25-year sentence for felony murder).

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The State asserts that Boler and Hall are distinguishable because those defendants were charged and convicted of only felony murder, not premeditated murder. The State points out that in this case, Appellant was charged under a premeditated murder theory. However, although the State proceeded on a premeditated murder theory, it also proceeded on a felony murder theory. It is not clear if the jury found Appellant guilty under the felony murder or premeditated murder theory, as the verdict form merely suggests Appellant was “guilty as charged,” and Appellant was charged under both theories. Thus, this court cannot assume that Appellant was convicted under a premeditated murder theory. Cf. Traylor v. State, 785 So. 2d 1179 (Fla. 2000) (holding that a trial court could not reclassify attempted first-degree murder conviction to life felony based on use of a deadly weapon where verdict did not establish whether conviction was based on premeditation or felony murder theory, and where use of a weapon was an essential element of the underlying charge of armed robbery).

Because we find that this case is controlled by Boler, we reverse and remand for the trial court to either impose Appellant’s minimum mandatory sentences concurrently or to attach portions of the record conclusively refuting Appellant’s entitlement to relief. See Hall, 14 So. 3d at 1082.

AFFIRMED in part, REVERSED and REMANDED in part, with directions.

KAHN, DAVIS, and THOMAS, JJ., CONCUR.

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