Florida Criminal Law Opinions

ANTHONY HAMMOND, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1902.

District Court of Appeal of Florida, Fourth District.

March 24, 2010.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County, Dan L. Vaughn, Judge, L.T. Case No. 2005CF001162A.

Anthony Hammond, Bristol, pro se.

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

PER CURIAM.

Anthony Hammond appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Hammond raised five claims of ineffective assistance of trial counsel. The trial court summarily denied four of the claims and held an evidentiary hearing on one. The judge denied the remaining claim after the hearing. Hammond has filed an initial brief in which he argues that the trial court erred in summarily denying two of his claims. In one sentence, he concludes, without explanation, that the court erred in denying the other claims as well.

Claims for which an appellant has not presented any argument, or for which he provides only conclusory argument, are insufficiently presented for review and are waived. Doorbal v. State, 983 So. 2d 464, 482-83 (Fla. 2008); Shere v. State, 742 So. 2d 215, 217 n.6 (Fla. 1999).

We affirm the denial of all the claims but write to explain the basis for rejecting one of Hammond’s arguments. We also write to clarify that we will not require remand based on Spera v. State, 971 So. 2d 754 (Fla. 2007), where the appellant has filed an initial brief and fails to show that Spera requires remand by to demonstrating a good faith basis for amending an insufficient claim.

In the sole claim that merits discussion, Hammond argues that trial counsel provided ineffective assistance by failing to file a notice of expiration of speedy trial time pursuant to Florida Rule of Criminal Procedure 3.191(p)(2). The State responded to this claim explaining that

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Hammond had not established the prejudice component of an ineffective assistance of counsel claim¹ because he had not alleged that the State could not have brought him to trial within the fifteen-day recapture window. See Fla. R. Crim. P. 3.191(p)(3) (providing the State a total of fifteen days after a notice of expiration is filed to bring a defendant to trial).

The trial court agreed and cited Newkirk v. State, 947 So. 2d 548 (Fla. 4th DCA 2006), where this court rejected just such a claim under similar circumstances. This court explained as follows: “[Appellant's] allegations with respect to failure to request a speedy trial discharge also do not show that the proceeding was rendered fundamentally unfair or that the state could not have brought him to trial within the time periods allowed by the speedy trial rule.” Id. at 549; see also Dexter v. State, 837 So. 2d 595 (Fla. 2d DCA 2003) (holding that a defendant fails to establish prejudice if he does not allege that the State could not have brought him to trial within the recapture window).

Hammond, by contrast, relies on First District cases in which the court has required evidentiary hearings on this type of claim. See, e.g., Gee v. State, 13 So. 3d 68 (Fla. 1st DCA 2009); Burke v. State, 855 So. 2d 207 (Fla. 1st DCA 2003); Brown v. State, 829 So. 2d 975 (Fla. 1st DCA 2002). The movants in the above cases, however, specified some reasonable basis to conclude that the failure to move for speedy trial discharge caused prejudice.

Hammond’s claim is insufficient. A claim of ineffective assistance of counsel based on a failure to seek discharge because of a violation of the speedy trial rule is extremely tenuous where the State had available the recapture window of Rule 3.191(p)(3). Cf. Wells v. State, 881 So. 2d 54, 55 (Fla. 4th DCA 2004) (finding that prejudice was sufficiently alleged because the State may not have been entitled to a recapture period). In almost all cases, an allegation of prejudice on this type of claim is speculative. We suspect that it is almost always impossible to reconstruct the circumstances that existed when the speedy trial issue arose (often years earlier), what the State could and could not have done at that time, and “what might have been.” Absent peculiar circumstances, such a claim is likely not subject to reasonable proof.

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A conclusory allegation of ultimate fact is not enough to establish a basis for the extraordinary relief authorized by Strickland. An unelaborated allegation that “the State could not have brought the movant to trial within the recapture window” would be nothing more than bald conjecture. Evidentiary hearings (on an issue not typically subject to reasonable proof) are not required any time a defendant incants these words.

To be entitled to an evidentiary hearing, the movant must allege specific facts that establish a “reasonable probability” of prejudice. In a speedy trial claim, the movant would need to show that the State could not have brought the movant to trial within the recapture time. A conclusory claim is insufficient to warrant an evidentiary hearing. Oquendo v. State, 2 So. 3d 1001, 1004 (Fla. 4th DCA 2008). Unless the movant alleges a specific factual basis and establishes a prima facie basis for concluding that the State could not have brought the defendant to trial within the recapture window, such a claim should be denied.

Newkirk and other opinions affirming denials of claims that failed to allege that the State could not have brought the movant to trial within the recapture period issued before the Florida Supreme Court’s decision in Spera. In Spera, the Court held that a movant must be afforded at least one opportunity to amend a legally insufficient postconviction motion that fails to meet pleading requirements. 971 So. 2d at 761. As we have noted, however, Spera does not require remand of conclusory claims. Mancino v. State, 10 So. 3d 1203 (Fla. 4th DCA 2009).

Further, Spera holds that an opportunity to amend is required “only if [the claim] can be amended in good faith.” 971 So. 2d at 762; See also Montero v. State, 996 So. 2d 888, 890 (Fla. 4th DCA 2008) (affirming denial of insufficient claim because it could not reasonably be amended in good faith).

In post-Spera cases, the Second District has reversed denials of insufficient claims such as the one Hammond raises and remanded for the trial court to follow the Spera procedure by striking the claim and permitting an opportunity to amend. Gamble v. State, 996 So. 2d 946, 948 (Fla. 2d DCA 2008); Smith v. State, 988 So. 2d 693, 694 (Fla. 2d DCA 2008). To the extent these cases suggest that remand is required under Spera or that an evidentiary hearing is required based on conclusory allegations of prejudice, we certify conflict.

Hammond has not demonstrated either error requiring reversal or a basis for relief under Spera. He has not shown that he has a good faith

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basis to amend his claim. While aware that the State was arguing that his claim was insufficient, Hammond filed a reply in the trial court but did not seek an opportunity to amend. This alone might not be sufficient to preclude relief under Spera. See Hartwell v. State, 12 So. 3d 892, 893 (Fla. 5th DCA 2009). Hammond filed an initial brief in this appeal. Patently aware that his claim was, however, insufficient and that the claim has already been denied as such, Hammond did not raise Spera or argue that he has any good faith basis for amending his motion to state a sufficient claim.

The First District has held that if a defendant files a brief in a Rule 3.850 appeal and does not raise Spera, then any claim for relief under Spera is waived. Watson v. State, 975 So. 2d 572, 573 (Fla. 1st DCA 2008). We adopt Watson’s holding on this point and further note that, because Spera requires an opportunity to amend only if the motion can be amended in good faith, the appellant maintains the burden of establishing in the initial brief that a good faith basis exists for amending the motion. Where an appellant fails to show any good faith basis for amendment, and no reasonable good faith basis for amendment appears in the record, we will not remand the matter.

Affirmed.

HAZOURI, CIKLIN and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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A.D., a juvenile, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-804.

District Court of Appeal of Florida, Third District.

Opinion filed March 24, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Marcia B. Caballero, Judge, Lower Tribunal Nos. 08-4407 & 08-4408.

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

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

Before SHEPHERD, SUAREZ, and LAGOA, JJ.

LAGOA, J.

A.D., a juvenile, appeals from a withhold of adjudication and judicial warning for third degree grand theft. Because there is insufficient proof that the

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value of the stolen items was more than $300, we are compelled to reverse and remand with instructions to reduce the finding of guilt for third degree grand theft to petit theft.

I. FACTUAL AND PROCEDURAL HISTORY

In case no. 08-4408, the State charged A.D. with burglary of an unoccupied conveyance, burglary of an occupied dwelling, criminal mischief, and grand theft in the third degree. The trial court found him not guilty of burglary of an occupied dwelling and criminal mischief. The trial court found him guilty of burglary of an unoccupied conveyance and grand theft. This appeal ensued.

II. ANALYSIS

On appeal, A.D. argues that the trial court erred in denying his motion for judgment of acquittal on the offense of grand theft in the third degree. A.D. contends that the State failed to establish that the market value of the items stolen was more than $300. We agree.

In order to establish a violation of the third-degree grand theft statute, § 812.014(2)(c)1., Fla. Stat. (2008), the State must prove that the property stolen was valued at $300 or more, as defined by section 812.012(10)(a)1., Florida Statutes (2008). “Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)1. The State may present direct testimony as to the fair market value, testimony

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establishing cost minus depreciation pursuant to the test set forth in Negron v. State, 306 So. 2d 104 (Fla. 1974),¹ or testimony as to replacement cost if market value cannot be satisfactorily ascertained. See K.W. v. State, 13 So. 3d 90 (Fla. 3d DCA 2009); Bloodsaw v. State, 994 So. 2d 378 (Fla. 3d DCA 2008). Because the value of the stolen items is an essential element of the offense, the value must be established beyond a reasonable doubt. See Jackson v. State, 23 So. 3d 206 (Fla. 4th DCA 2009); Smith v. State, 955 So. 2d 1227 (Fla. 5th DCA 2007); Toler v. State, 779 So. 2d 594 (Fla. 2d DCA 2001). An estimate of the value of the items, without more, is insufficient. See Jones v. State, 958 So. 2d 585 (Fla. 2d DCA 2007); Sellers v. State, 838 So. 2d 661 (Fla. 1st DCA 2003); Gilbert v. State, 817 So. 2d 980 (Fla. 4th DCA 2002); Toler, 779 So. 2d at 595.

Because the State concedes that insufficient evidence was presented as to the value of the cell phone, fishing rods, and I-pod, we address only the evidence presented as to the truck radio and the boat battery charger. We conclude that the record does not contain sufficient evidence establishing the value of the radio and boat battery charger. The State failed to present any evidence of the value of the truck radio or the boat charger at the time and place of the offense. As such, the State failed to prove that the property stolen was valued at $300 or more as defined by section 812.012(10)(a)1. Instead, the victim testified solely as to the

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replacement cost of these items. Replacement cost, however, is not appropriate under the theft statute² unless the State first presents evidence that the market value could not be satisfactorily ascertained. “This step [is] necessary to justify the value of the loss being ascertained by the cost of replacement of the property.” Robinson v. State, 686 So. 2d 1370, 1373 (Fla. 5th DCA 1997) (holding that trial court properly adjudicated defendant guilty of petit theft, rather than grand theft, where state “made [no] effort of showing that it could not `satisfactorily ascertain’ the market value of the smoke detectors removed from the walls”). Here, the State failed to present any evidence that it could not “satisfactorily ascertain” the market value.

We next address the State’s argument that the finding of guilt may stand based on a finding that the minimum value of the items is self-evident. § 812.012(10)(b), Fla. Stat. (2008). “[S]uch a discretionary assessment of value is permissible only in `those rare cases where the minimum value of an item of property is so obvious as to defy contradiction.’” K.W., 13 So. 3d at 92 (quoting Weatherspoon v. State, 419 So. 2d 404, 405 (Fla. 2d DCA 1982)). See also Sylvester v. State, 766 So. 2d 1223, 1223-24 (Fla. 5th DCA 2000) (aggregate value of stolen items in excess of $300 “`is so obvious as to defy contradiction’”

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(quoting Jackson, 413 So. 2d 112, 114-115 (Fla. 2d DCA 1982) (reasonable persons could not doubt that value of less than one-year old, operable 37-foot sail boat was $100 or more)); Randolph v. State, 608 So. 2d 573, 574 (Fla. 5th DCA 1993) (“There are, of course, cases in which the minimum value of an item of property is `so obvious as to defy contradiction.’” (quoting Jackson v. State, 413 So. 2d at 114-115)). We decline the State’s invitation to find that the minimum value of the items is self-evident given the paucity of information on the record regarding the conditions of the items at issue.

Because the State failed to establish the value of the property, we reverse the disposition order and remand with directions to reduce the finding of guilt for grand theft to petit theft.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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J.O., a juvenile, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-3119.

District Court of Appeal of Florida, Third District.

Opinion filed March 24, 2010.

An Appeal from the Circuit Court for Monroe County, Sandra Taylor, Judge, Lower Tribunal No. 08-124.

Carlos J. Martinez, Public Defender, Maria E. Lauredo and Michael T. Davis, Assistant Public Defenders, for appellant.

Bill McCollum, Attorney General, Nikole Hiciano, Assistant Attorney General, for appellee.

Before GERSTEN, SHEPHERD, and LAGOA, JJ.

SHEPHERD, J.

J. O., a juvenile, appeals an adjudication of guilt of the crime of grand theft. Because this crime was not charged in the petition filed against him, we reverse the adjudication.

This case arises out of the theft of a motor scooter. On March 5, 2008, the victim, Joe Weatherby, reported his scooter stolen from his home in Key West, Florida. About two-and-one-half-months later, Officer Keohane of the Key West Police Department saw a juvenile driving the scooter. The juvenile told the officer he had borrowed the scooter from J.O.

Officer Keohane went to J.O.’s house and questioned him. J.O. confirmed he lent the scooter to the juvenile, and explained he had purchased it from an individual named Danny for $1200. Weatherby testified that after the scooter was returned to him, J.O. went to Weatherby’s house and told him his brother had stolen the scooter. J.O. then asked permission to retrieve his baseball cap and computer discs left inside the scooter seat. Officer Keohane admitted there was no evidence suggesting J.O. ever intended to sell the scooter, or that J.O. did anything with the scooter other than possess it and loan it to a friend.

J.O. was charged with “traffic[king] in, or endeavor[ing] to traffic in, a scooter, which was property [of] Joe Weatherby, [which J.O.] knew or should have known was stolen, contrary to Florida Statute 812.019(1).” The trial court concluded the evidence was insufficient to establish J.O. trafficked in stolen

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property. However, the court proceeded to find him guilty of grand theft, a category two lesser-included offense of trafficking, which was not charged in the petition. In so doing, the court reversibly erred.

A conviction based upon a category two lesser-included offense is sustainable over a proper objection¹ only if: (1) the charging document includes all of the elements of the lesser; and (2) the evidence admitted would support a conviction on the lesser. See Brown v. State, 206 So. 2d 377, 383 (Fla. 1968); Pittman v. State, 22 So. 3d 862 (Fla. 3d DCA 2009); see also Neals v. State, 962 So. 2d 926, 928 (Fla. 4th DCA 2007) (finding no merit in defendant’s assertion that trial judge reversibly erred in refusing to charge jury on the offense of theft under section 812.014, where information only charged defendant with trafficking under section 812.019(1) because “the elements of [theft] were not included within the charging document”) (citing Moore v. State, 932 So. 2d 524, 527 (Fla. 4th DCA 2006). In this case, although it is arguable that the second of this two-pronged test is met, the first is not.

The statute under which J.O. was charged, § 812.09(1), Fla. Stat. (2008), states that “[a]ny person who traffics in, or endeavors to traffic in, property that he or she knows was stolen shall be guilty of a felony of the second degree,

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punishable as provided in ss. 775.082, 775.083, and 775.084.” As used in this section, “traffic” means:

(a) To sell, transfer, distribute, dispense, or otherwise dispose of property, or

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

§ 812.012(8).

The theft statute, set forth in section 812.014, provides, in relevant part:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with the intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property, or

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

§ 812.014(1), Fla. Stat. (2008) (emphasis added).

A careful review of the charging petition in this case reveals the State generally alleged a violation of the trafficking statute, without specifically setting forth any of the aforementioned elements of the offense. Thus, the petition naturally fails to set forth the elements substantiating a lesser charge of grand theft, and the crime therefore fails as a permissible lesser-included offense in this circumstance. See Townsley v. State, 443 So. 2d 1072, 1073 (Fla. 1st DCA 1984) (holding “evidence was sufficient to create an inference that appellant was guilty

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of theft . . . however appellant was not charged with theft under section 812.014, but instead was charged under section 812.019 with dealing in stolen property”).

As we have reaffirmed recently, no principle of procedural due process is more clearly established than notice of the specific charge and the opportunity to be heard in trial on the issues raised by that charge, if desired. See Pittman v. State, 22 So. 3d 859, 861 (Fla. 3d DCA 2009) (citing Ray v. State, 403 So. 2d 956 (Fla. 1981)). These are among the constitutional rights of everyone accused in a criminal proceeding in all courts, state or federal. Pittman, 22 So. 3d at 861. The order of the trial court adjudicating the defendant delinquent on the offense of grand theft in this case violates that basic principle.

Reversed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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STEVEN MATA, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4544.

District Court of Appeal of Florida, Fourth District.

March 24, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Jeffrey R. Levenson, Judge, L.T. Case No. 07-16248 CF10A.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, J.

In this case, the State filed an Affidavit of Violation of Probation, charging that Steven Mata violated his probation as follows: committing the criminal offense of leaving the scene of an accident without giving information (count I); failure to report a crash (count II); reckless driving (count III); failing to have a valid driver’s license (count IV); driving with a suspended license (count V); failure to provide proof of insurance (count VI); and failure to remove an obstructing vehicle (count VII). At the conclusion of the VOP hearing, the trial court dismissed count V, as the State failed to present any evidence that the defendant’s license was suspended, found the defendant guilty of the remaining violations, and revoked Mata’s probation. In this appeal, Mata challenges the sufficiency of the evidence (point I), claims that the trial court abused its discretion by relying upon uncharged misconduct, i.e., the theft of a cell phone, in revoking probation (point II), and asserts the trial court erred by failing to enter a written order of revocation (point III). We affirm the revocation of Mata’s probation, writing only to address the arguments raised in points I and III.

At the VOP hearing, Janet Raether testified that she was driving westbound on I-595 when she was struck by another vehicle. After the collision, Raether observed a black SUV on the exit ramp and a green Honda, which had apparently gone through the fence and come to rest on State Road 84. According to Raether, both the SUV and the Honda were damaged and in “real bad shape.” Raether spoke to the driver of the SUV, FBI Agent Patrick Brodsky; she did not see or speak with the driver of the Honda.

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Paula Strong was driving on State Road 84 that evening and heard squealing tires. She pulled over and saw that a green car had come through the fence from I-595 and was resting on State Road 84 about 100 feet behind her. The green car had body damage. A man that Strong identified as the defendant knocked on her car window and asked to use her cell phone. Strong gave the man her phone. He took the phone and fled.

FBI Agent Dustin Blount, called to investigate the accident, arrived about twenty to thirty minutes after the crash. Brodsky reported to him that the Honda had caused the accident, that the driver of the Honda exited the car and fled west on State Road 84 on foot, and that the driver failed to stop despite his calling out “police, stop.” Agent Blount testified that Brodsky “made an identification of the defendant.” The driver of the green Honda was not on the scene and not found that evening. Agent Blount testified, however, that they found a cell phone in the car, that the phone rang on the evening of the accident, that agents answered the phone and that the caller was David Mata, the defendant’s brother. According to Blount, he later spoke with the defendant and the defendant inquired as to whether he could get his phone back. Finally, Agent Blount testified, without any objection, that agents spoke to the green Honda’s registered owner, Melissa Conroy, and that Conroy reported that the defendant’s brother had called and told her the defendant had taken the car and been in an accident.

To sustain a violation of probation, the State must prove, by a preponderance of the evidence, that the defendant willfully and substantially violated the terms of his probation. See, e.g., Limbaugh v. State, 16 So. 3d 954, 955 (Fla. 5th DCA 2009). In meeting this burden, the State may rely upon hearsay testimony, but hearsay alone is insufficient to sustain a revocation of probation. See, e.g., Smith-Curles v. State, 24 So. 3d 702, 702-03 (Fla. 1st DCA 2009). The non-hearsay evidence, however, need not independently establish the violation. See Russell v. State, 982 So. 2d 642, 646 (Fla.), cert. denied, 129 S. Ct. 272 (2008). Rather, the non-hearsay evidence “need only support the hearsay evidence.” Kalmbach v. State, 988 So. 2d 1279, 1280 (Fla. 5th DCA 2008).

Each of the six violations Mata was found guilty of required that the State prove he was the driver of the green Honda. Mata insists that the evidence offered by the State was insufficient to establish such fact because (1) Raether, the driver who was struck, did not see the driver of the green Honda; (2) Strong identified the defendant only as the man who

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knocked on her car window; and (3) while Agent Blount did provide hearsay testimony that Agent Brodsky identified the defendant, he did not expressly testify that Brodsky identified the defendant as the driver of the green Honda. Addressing the latter of these arguments first, when Agent Blount’s testimony concerning Brodsky’s identification of the defendant is considered in context, it is clear that he was stating that Brodsky identified the defendant as the driver of the green Honda. The combination of Strong’s testimony and Agent Blount’s hearsay testimony that the defendant was the driver of the green Honda and fled, on foot, toward State Road 84 is sufficient to establish, by a preponderance of the evidence, that the defendant was, in fact, the driver of the green Honda.

Next, Mata asserts that the evidence was wholly insufficient to establish count III, charging reckless driving, as there was no evidence that he was driving with a willful and wanton disregard for the safety of persons and property; to establish count IV, driving without a valid driver’s license, as there was no evidence that he did not have a valid driver’s license; and to establish count VII, charging the failure to remove an obstructing vehicle, as there was no evidence that the green Honda was obstructing the flow of traffic. Each of Mata’s arguments is welltaken as there was no evidence that he committed these violations.

Despite our conclusion that a finding of guilt as to counts III, IV, and VII cannot be sustained, we nonetheless affirm the trial court’s decision to revoke Mata’s probation and the sentence imposed as it is clear from the record that the trial court would have revoked probation and imposed the same sentence based solely upon the remaining counts, i.e., counts I, II, and VI.¹ See, e.g., Green v. State, 23 So. 3d 820, 821 (Fla. 4th DCA 2009); Green v. State, 19 So. 3d 449, 450 (Fla. 2d DCA 2009). As asserted by Mata in point III, remand is nonetheless required so that the trial court may enter a written order of revocation specifying the conditions violated. See, e.g., Green, 23 So. 2d at 821; Watts v. State, 688 So. 2d 1018 (Fla. 4th DCA 1997). The order of revocation entered on remand should specify that the revocation is predicated solely upon the three remaining charges, i.e., counts I, II, and VI.

Affirmed in part; Reversed in part; and Remanded.

WARNER and POLEN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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Edward Locascio, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-1272.

District Court of Appeal of Florida, Third District.

Opinion filed March 24, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Norman S. Gerstein, Judge, Lower Tribunal No. 01-34564.

Peter Raben, for appellant.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.

PER CURIAM.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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SHEPHERD, J., dissenting.

I respectfully dissent. Because the State impermissibly made evidence of Appellant Edward Locascio’s other misdeeds throughout the course of the marriage and divorce proceedings a feature of the trial, I would reverse the convictions below.

Edward Locascio was charged as a principal and co-conspirator to his brother Michael’s killing of Defendant’s soon-to-be ex-wife, Silvia. The State’s theory of this wholly circumstantial case was, because the divorce proceedings between Edward and Silvia were so hotly contested, Edward was motivated to have his wife killed in order to avoid parting with his assets. In support of its theory, the State introduced voluminous testimony evidencing Defendant’s failures as a father, his unlawful tactics as a certified public accountant and investor, and his contemptuous behavior during the family law case. Along with the testimony of two divorce attorneys, spanning over three days of trial, the State presented documented evidence of Locascio’s acts of perjury, forgery, and subordination of perjury during the course of the divorce proceedings. The State highlighted this extrinsic evidence in both its opening and closing arguments, propagating to the jury that Locascio engaged in acts of “lying, frauding,” and “[behaving as a] CPA at his finest.”

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It is well-settled law in this State that where evidence of an uncharged crime is inextricably intertwined with the charged offense, the extrinsic evidence is admissible “where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime.” See Simmons v. State, 790 So. 2d 1177, 1178 (Fla. 3d DCA 2001) (quoting Nickels v. State, 106 So. 479, 488 (Fla. 1925)). However, this Court recently has reaffirmed the rule of law which commands that such evidence shall not become a feature of the trial. See Morrow v. State, 931 So. 2d 1021, 1022 (Fla. 3d DCA 2006) (citing Bryan v. State, 533 So. 2d 744, 746 (Fla. 1988)). Whether the collateral crimes have become a feature of the trial is not measured simply by the number of references; however, “voluminous references to the collateral crime are evidence of a prohibited transgression.” Morrow, 931 So. 2d at 1023. A careful review of the record in this case reveals this is indeed a case of voluminous references. As recognized by the Fourth District:

The danger in making extrinsic evidence the feature of the trial is that the proceeding is transformed from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant, whose character is insulated from attack unless he introduces the subject.

Sutherland v. State, 849 So. 2d 1107 (Fla. 4th DCA 2003).

Although I can agree with the State’s assertion that some of the extrinsic evidence was necessary to establish Defendant’s motive, I cannot agree that all of

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it was, especially in light of the characterizations of Locascio as a fraud, a liar, a tax evader, and “a CPA at his finest.” As it appears the surplus was directed primarily at impermissibly attacking the defendant’s character, I would reverse the defendant’s convictions and remand for a new trial, heavily directing the State to apply an editing eye to its case-in-chief.

Courtesy of David Edelstein

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KENNETH M. DAVIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-1222.

District Court of Appeal of Florida, Fourth District.

March 24, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michael G. Kaplan, Judge, L.T. Case No. 05-18078 CF10A.

Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

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

STEVENSON, J.

Kenneth Davis was adjudicated guilty of third-degree felony DUI. Though a jury found Davis guilty of driving under the influence, the record is devoid of any evidence of the predicate prior offenses necessary to sustain a conviction for felony DUI, so we reverse.

Davis was charged by information with felony DUI pursuant to sections 316.193(1) and 316.193(2)(b)1., Florida Statutes (2005), which provide that a defendant is guilty of a felony DUI if he “is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section.” Defense counsel filed a motion for a bifurcated trial, asking that the jury determine Davis’s prior convictions, if they find him guilty of the instant DUI. Subsequently, prior to the commencement of voir dire, defense counsel orally stated that he had previously filed a motion for a bifurcated trial and for the court to determine Davis’s prior convictions. The State did not object, and the trial court granted the request.

The facts surrounding the instant DUI were presented to the jury. Before the jury returned its verdict, the trial court clarified that the parties had stipulated that if there was a guilty verdict, the priors would be determined by the court. Davis was present, and all of the parties agreed. The jury returned a guilty verdict. Defense counsel requested that the parties return on a later date to address the priors and conduct sentencing. He indicated that the defense may stipulate to the priors, but they were not yet prepared to do so. At the subsequent sentencing hearing, Davis’s prior DUI offenses were never mentioned, and no

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stipulation was presented, but Davis was nonetheless adjudicated guilty of felony DUI and sentenced to 364 days in jail, followed by thirty-six months of probation.

The requirement of prior DUI offenses is considered an element of felony DUI, which the State is required to prove beyond a reasonable doubt. See Johnson v. State, 994 So. 2d 960, 963 (Fla. 2008) (citing State v. Finelli, 780 So. 2d 31, 33 (Fla. 2001)); State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 2000). Because the instant record lacks any findings about Davis’s prior DUI offenses or evidence establishing Davis’s prior DUI offenses, we agree with Davis that the State failed to satisfy this element. In order to cure this defect, findings about the predicate prior offenses would need to occur in the circuit court.

In State v. Rodriguez, 575 So. 2d 1262, 1266 (Fla. 1991), our supreme court held that when a defendant is charged with felony DUI, if he elects to be tried by a jury, the court must conduct a jury trial on the elements of the single incident of DUI at issue without allowing the jury to learn of the alleged prior offenses, and, if the jury returns a guilty verdict, the trial court would then conduct a separate proceeding to determine if the defendant had been convicted of the requisite prior offenses. In Harbaugh, our supreme court modified this process, holding that the jury, unless waived by the defendant, must decide the issue of the defendant’s prior convictions as well. See 754 So. 2d at 694. A valid waiver is either a written waiver signed by the defendant or an oral waiver preceded by a proper colloquy during which the trial judge focuses on the value of a jury trial and provides a full explanation of the consequences of a waiver. Johnson, 994 So. 2d at 963. A defendant’s silence does not establish a valid waiver. Id.

In the instant case, Davis never validly waived his right to a jury trial as to his prior offenses. This court cannot deem such an error harmless because there is no record evidence of the prior offenses to show that if a jury trial had occurred during the second phase, Davis would most likely have been convicted of felony DUI, as the jury would have likely found the existence of the priors. See id. at 965. Moreover, in the absence of a valid waiver, Davis was entitled to have the same jury decide whether the State proved beyond a reasonable doubt all elements of the crime charged, meaning the prior offenses portion cannot be considered on remand. See Harbaugh, 754 So. 2d at 694 n.5. Alternatively, subjecting Davis to retrial as to the instant DUI would violate double jeopardy. See Warthen v. State, 988 So. 2d 154, 156 (Fla. 4th DCA 2008). Even if this court concluded that Davis validly waived his right to a jury trial as to his prior offenses, the record does not reflect evidence of these prior

Page 3

offenses on which to base a conviction for felony DUI. Thus, we reverse and remand, directing the trial court to vacate Davis’s adjudication and sentence for felony DUI and adjudicate him as to only the instant DUI of which the jury found him guilty.

Reversed and remanded.

WARNER and POLEN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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VANNIE NEWTON, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4611.

District Court of Appeal of Florida, Fourth District.

March 24, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No. 562007CF004841A.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

Per Curiam.

The state filed a nine-count information against appellant, Vannie Newton, Jr. He was charged with one count of organized scheme to defraud and three counts of third degree grand theft, all of which were alleged to have occurred on June 28, 2007, and upon the property of Newton’s employer. Newton was also charged with three counts of uttering a forged instrument on June 28, 2007, and two more counts which occurred on July 31, 2007. Newton pleaded to all the charges. He was sentenced to five years in prison on the charge of organized scheme to defraud with credit for 191 days time served. For one of the counts of grand theft, he was sentenced to five years with credit for 191 days time served to run consecutively to the first five years. On the rest of the counts, he was sentenced to five years probation to run consecutively to the two prison terms.

Newton argues that his convictions for both organized scheme to defraud and the three grand thefts violate his double jeopardy protections. “A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.” Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006). “It is undisputed that double jeopardy principles preclude convictions for both grand theft and organized fraud based upon the same conduct.” Id. See also Pineda v. State, 3 So. 3d 1289 (Fla. 4th DCA 2009). The grand thefts, which were facilitated by his forgeries of his employer’s checks, are the same conduct upon which the organized scheme to defraud charge was based. See Donovan v. State, 572 So. 2d 522 (Fla. 5th DCA 1990) (holding defendant’s convictions for organized fraud, forgery, and uttering false

Page 2

instruments were proper, but that he cannot also be lawfully convicted of theft).

Newton’s convictions for grand theft are a double jeopardy violation and, therefore, the lesser offenses must be reversed. We remand for resentencing for organized scheme to defraud due to the possibility that the reversal of the grand theft counts thwarts the intentions of the trial court’s sentencing plan. Donovan, 572 So. 2d at 527 (reversal of convictions for lesser offenses allows for resentencing on the greater offense).

Newton also argues that the trial court erred in not vacating from his order of probation the portion of a standard condition of supervision requiring him to submit at any time to warrantless searches by a law enforcement officer. He submits that this is a special condition that must be orally pronounced at sentencing. The condition not orally pronounced was: “(14) You shall submit your person, property, place of residence, vehicle or personal effects to a warrantless search at any time, by any probation, or community control officer or any law enforcement officer.”

“[A] condition of probation which is statutorily authorized or mandated, see, e.g., section 948.03-.034, Florida Statutes (1993), may be imposed and included in a written order of probation even if not orally pronounced at sentencing.” Cole v. State,932 So. 2d 1123 (Fla. 4th DCA 2006). “With regard to a special condition not statutorily authorized, however, the law requires that it be pronounced orally at sentencing before it can be included in the written probation order.” Id. (quoting Nank v. State, 646 So. 2d 762, 763 (Fla. 2d DCA 1994)).

Section 948.03(1)(b), Florida Statutes (2007), provides that a probationer shall “[p]ermit such supervisors to visit him or her at his or her home or elsewhere.” Condition (9) of the probation order form found in Florida Rule of Criminal Procedure 3.986(e) provides: “You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site, or elsewhere, and you will comply with all instructions your officer may give you.” Neither the statute nor the rule authorizes a law enforcement officer to visit a probationer for an administrative search without the presence of his or her probation officer. Therefore, a condition which so provides must be orally pronounced.

The state asserts that the standard condition satisfies the spirit of section 948.03(1)(b) because a law enforcement officer is permitted to

Page 3

accompany a probation officer on an administrative search for the protection of probation personnel. Although we agree that a law enforcement officer is permitted to accompany a probation officer on an administrative search, Condition 14 authorizes a law enforcement officer to visit a probationer without his probation officer and this is not statutorily authorized. Because it was not orally pronounced as a special condition, this portion of Condition 14 must be stricken.

Reversed and Remanded with instructions.

Farmer, Hazouri and Damoorgian, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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STATE OF FLORIDA, Appellant,
v.
JORGE ALONSO, Appellee.

No. 4D08-5176.

District Court of Appeal of Florida, Fourth District.

March 24, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Pedro E. Dijols, Judge; L.T. Case No. 07-15705 CF10A.

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

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.

Stevenson, J.

Jorge Alonso was charged with and entered a nolo contendere plea to robbery with a deadly weapon. Alonso’s lowest permissible sentence was forty-eight months in prison. Pursuant to section 921.0026(2)(j), Florida Statutes (2007), which provides “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse,” the trial court imposed a downward departure sentence of two years of community control, followed by three years of probation. We find the trial court’s determination that the offense was unsophisticated is not supported by competent substantial evidence and reverse.

A decision to impose a downward departure is a two-step process. State v. Jerry, 19 So. 3d 1167, 1169 (Fla. 1st DCA 2009) (citing State v. Owens, 848 So. 2d 1199, 1201 (Fla. 1st DCA 2003)). First, the trial court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support. Id. (citing Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999)). If a valid ground exists and it is adequately supported by the record, then the sentencing court proceeds to the second step where it must determine whether it should depart, i.e., whether departure is the best sentencing option for the defendant. Id. (citing Banks, 732 So. 2d at 1068).

In the instant case, on appeal, the State contested only whether the trial court could depart, asserting that there was not competent substantial evidence to support a finding of unsophistication. Alonso drove the get-away car after his masked codefendant robbed, at

Page 2

knifepoint, a store manager, leaving work for the night. Two witnesses to the robbery saw the license plate number on the get-away car, so police were able to apprehend Alonso and his codefendant, who both gave detailed confessions. At sentencing, Alonso admitted knowing his codefendant was wearing a mask during the robbery but denied knowing he had a knife. Alonso also admitted driving the get-away car, which contained a pair of walkie-talkies that the men planned to, but never used, in the robbery. He admitted to storing the contraband taken from the victim in a safe at his home upon his codefendant’s request.

Because Alonso knew that his codefendant wore a mask and the men possessed and intended to use walkie-talkies, we cannot agree with the trial court that the offense was unsophisticated. See Staffney v. State, 826 So. 2d 509, 512 (Fla. 4th DCA 2002) (using the phrase “‘artless, simple and not refined’” to define unsophisticated (quoting State v. Merritt, 714 So. 2d 1153, 1154 n.3 (Fla. 5th DCA 1998))). Though we hold that Alonso does not qualify for a departure under subsection (j), the defense supported its motion for a downward departure by contending that Alonso also qualified under sections 921.0026(2)(b) and (e). Because the trial court never specifically made a ruling as to these alternative grounds submitted by the defense, the trial court may consider them in resentencing Alonso.

Reversed and remanded for resentencing.

Warner and Polen, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Jimmy Lee Barnes, a/k/a, Jimmy Lee Harris, Appellant,
v.
The State of Florida, Appellee.

No. 3D10-373.

District Court of Appeal of Florida, Third District.

Opinion filed March 24, 2010.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Stanford Blake, Judge. Lower Tribunal Nos. 75-5643, 71-7754.

Jimmy Lee Barnes a/k/a, Jimmy Lee Harris, in proper person.

Bill McCollum, Attorney General, for appellee.

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

PER CURIAM.

This is an appeal of an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Defendant-appellant Jimmy Lee Barnes a/k/a Jimmy Lee Harris, acknowledges that he previously filed the same claims and the denial of the motion was affirmed in Barnes v. State, 3D09-1909, 20 So. 3d 857 (Fla. 3d DCA 2009). The defendant argues, however, that his claim should be considered under the manifest injustice exception to the res judicata doctrine. See State v. McBride, 848 So. 2d 287, 291 (Fla. 2003). We see no basis on which to revisit the earlier decision.

The defendant maintains that his consecutive sentences in Miami-Dade County circuit court case number 75-5643 are impermissible and that his sentences on those two counts should be concurrent. This issue was decided against the defendant on his direct appeal in Harris v. State, 338 So. 2d 880, 882 (Fla. 3d DCA 1976).

The defendant argues alternatively that the sentencing court erred by allowing 161 days credit for jail time served on count one, but not the consecutive sentence on count two. The defendant’s argument is in error. See Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986); Steadman v. State, 23 So. 3d 811 (Fla. 2d DCA 2009). No manifest injustice has been shown.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Christopher Harris, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-319.

District Court of Appeal of Florida, Third District.

Opinion filed March 24, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin, Judge, Lower Tribunal No. 92-41749.

Christopher Harris, in proper person.

Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

Before WELLS, SHEPHERD, and ROTHENBERG, JJ.

WELLS, Judge.

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Christopher Harris appeals from an order denying his motion for return of property taken from him at the time of his arrest on December 12, 1992. While we dismiss the instant appeal as untimely filed, we note that the motion was properly denied on the merits. See Fla. R.App. P. 9.420(a)(2) (“A document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing.”); Davis v. State, 867 So. 2d 539, 539 (Fla. 1st DCA 2004) (dismissing appeal where appellant “failed to demonstrate that the notice of appeal was placed into the hands of prison officials for mailing within 30 days of the date of the final order sought to be reviewed.”); Harris v. State, 667 So. 2d 1006 (Fla. 3d DCA 1996) (concluding the matter in which the items claimed concededly were seized); see also § 705.105, Fla. Stat. (2009) (providing that title to unclaimed evidence or personal property lawfully seized and in the custody of the clerk or law enforcement agency vests permanently in the law enforcement agency 60 days after conclusion of the proceeding); Proux v. State, 985 So. 2d 1191, 1192 (Fla. 4th DCA 2008) (stating that the court could “discern no reason not to apply [to a motion for return of property] section 95.11(3), Florida Statutes, mandating a four year civil statute of limitations for actions to recover personal property”).

Dismissed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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