Florida Criminal Law Opinions

DANUREL DAFFIN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-6367.

District Court of Appeal of Florida, First District.

Opinion filed March 17, 2010.

An appeal from the Circuit Court for Washington County, Allen L. Register, Judge.

Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

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

BENTON, J.

On direct appeal, Danurel Daffin contends the trial court erred by denying his request for credit, on each of three concurrent sentences, for all the time he spent in county jail before the concurrent sentences were pronounced. We reverse and remand for award of credit on each concurrent sentence for the time he spent in jail before sentencing.

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Mr. Daffin was arrested on June 11, 2008, on charges of violating conditions of probation which had been imposed for resisting an officer without violence, a misdemeanor. An affidavit alleged that he had violated probation by committing new crimes: sale of cocaine in case number 08-20CF; and battery on a law enforcement officer (count I), resisting arrest with violence (count II), and petit theft (count III) in case number 08-29CF. Inasmuch as the new law violations were the basis alleged for revocation, he was arrested for the new law violations themselves at the same time.

At first appearance the following day, Mr. Daffin admitted violating probation. The trial court thereupon revoked probation, and sentenced him to 180 days in jail on the initial, underlying offense (resisting an officer without violence). Bond was set on the new law violation charges, but he never posted bond, remaining in jail instead, serving his sentence for resisting an officer without violence and awaiting disposition of the new law violation charges pending in cases numbers 08-20CF and 08-29CF.

On October 28, 2008, he pleaded no contest to all new law violations charged in exchange for concurrent sentences of four years and six months’ imprisonment in case number 08-20CF; and, in case number 08-29CF, four years and six months’ imprisonment on both Counts 1 and 2, and one month’s imprisonment on count 3. On the sentencing forms, the box next to “original jail

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credit” was checked for each sentence, although the number of days’ credit was not specified,¹ except on the petit theft count, where a credit of 30 days (deemed the length of the whole sentence) was specified. All sentences were ordered to run concurrently with one another as well as concurrently with “any active sentence being served,” which necessarily included the jail sentence imposed upon revocation of probation.

On November 3, 2008, Mr. Daffin filed a motion styled “Defendant’s Motion to Correct Sentence.” The motion recited that it was being filed “pursuant to Rule 3.800 Florida Rules of Criminal Procedure,” and alleged that the “fact that he was sentenced on the violation of probation before he was sentenced on the new charges does not affect his entitlement to jail credit on the sentence for the new charges.” The trial court entered an order denying the motion; and amended the written sentencing papers to reflect one day’s credit² for the sentence imposed in case number 08-20CF and for each of the sentences imposed on counts 1 and 2 in case number 08-29CF.

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Filed less than a week after entry of judgments of conviction for, and imposition of sentences on, the new law violations, Mr. Daffin’s motion was a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(1) (“During the time allowed for the filing of a notice of appeal of a sentence, a defendant or the state may file a motion to correct a sentencing error.”). Such a motion preserves alleged sentencing errors for review on direct appeal. See Amendments to Fla. Rule of Appellate Procedure 9.020(g) & Fla. Rule of Criminal Procedure 3.800, 675 So. 2d 1374, 1375 (Fla. 1996) (explaining the purpose of Rule 3.800(b) “is to ensure that a defendant will have the opportunity to raise sentencing errors on appeal”); Whitehead v. State, 21 So. 3d 157, 160 (Fla. 4th DCA 2009) (“A defendant must preserve a sentencing error by objecting at the time of sentencing or in a motion under Florida Rule of Criminal Procedure 3.800(b).” (citing Fla. R. App. P. 9.140(e))).

“Because a motion to correct a sentencing error involves a `purely legal issue,’ an appellate court’s standard of review for such a motion is de novo.” Willard v. State, 22 So. 3d 864, 864 (Fla. 4th DCA 2009) (citing T.L.S. v. State, 949 So. 2d 290, 291 (Fla. 5th DCA 2007)). Here as below, Mr. Daffin asserts a

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right to credit for the time he spent in jail³ between June 12, 2008, and October 28, 2008, on each of his concurrent sentences, relying on this statutory language:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

§ 921.161(1), Fla. Stat. (2008). Our supreme court has made unmistakably clear that, pursuant to this provision, when “a defendant receives pre-sentence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.” Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986) (emphasis in original).

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The trial court did award pre-sentence jail-time credit on the sentence it imposed for petit theft, and the credit covered part of the time during which Mr. Daffin was serving the sentence that began when probation was revoked. A similar credit should have been awarded on each of the other concurrent sentences.⁴ Concurrent sentences have been defined as “[t]wo or more sentences of jail time to be served simultaneously.” Black’s Law Dictionary 1367 (7th ed. 1999). See generally State v. Rabedeau, 2 So. 3d 191, 193 (Fla. 2009). But “[c]oncurrent sentences do not necessarily begin at the same time, and unless they are ordered to be coterminous, they will expire on different dates.” Llerena v. State, 953 So. 2d 31, 33 (Fla. 3d DCA 2007) (citing Knight v. State, 832 So. 2d 172, 172 (Fla. 3d DCA 2002)). In the present case, the concurrent sentences for the new law violations began later than the sentence pronounced upon revocation of probation to which they were all concurrent; and the petit theft sentence expired before any of the other sentences.

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A defendant is not, of course, entitled to jail credit for concurrent sentences when the defendant was not actually in jail before sentencing in connection with the offenses for which the concurrent sentences are imposed. See, e.g., Gethers v. State, 838 So. 2d 504, 505 (Fla. 2003) (holding “that absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant”). If, for example, a defendant posts bond on one charge and is released, only to be reincarcerated later on other charges, he is then being held only on the charges occasioning the later arrest, until and unless the bond posted on the initial charge is revoked.⁵ See Clifton v. State, 905 So. 2d 1042, 1043 (Fla. 2d

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DCA 2005) (holding that, after defendant was released on bond in one case, when he was returned to jail on subsequent charges, he was only entitled to jail credit on sentences imposed in the subsequent cases from the date bond was revoked); Blake v. State, 807 So. 2d 772, 773 (Fla. 2d DCA 2002) (holding that, where defendant was out on bond in two cases when he was arrested in a third case he was not entitled to jail credit on the sentences imposed in the first two cases unless his bond had been revoked).

In the present case, however, no bond was ever posted and the prisoner was detained in a single jail. The state does not argue otherwise. He was therefore entitled to credit under section 921.161(1) for the time he spent in jail between June 12, 2008, and October 28, 2008, awaiting sentencing for the new law violations. That he was simultaneously serving the sentence imposed upon revocation of probation in the prior misdemeanor case was expressly taken into account. When Mr. Daffin pleaded no contest to the new law violation charges, his sentences were ordered to run concurrently not only with one another but also with

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“any active sentence being served,” including the misdemeanor sentence he was then serving.

Reversed and remanded with directions to award credit for the time appellant spent in jail between June 12, 2008, and October 28, 2008, on each concurrent sentence.

KAHN and ROBERTS, JJ., CONCUR.

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

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Notes:

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Courtesy of David Edelstein

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M.D., a child, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-806.

District Court of Appeal of Florida, Fourth District.

March 17, 2010.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Peter D. Blanc, Judge, L.T. Case No. 502008CJ005845XXX.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

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

DAMOORGIAN, J.

M.D. timely appeals his adjudication of delinquency and sentence for possession of marijuana (less than twenty grams), arguing that the State did not produce sufficient evidence that he had dominion and control over the marijuana found in proximity to him at the time of his arrest. We agree and reverse.

M.D. was charged by juvenile petition with possession of marijuana (less than twenty grams) and loitering and prowling. At trial, the State presented the following evidence. On the night of M.D.’s arrest, the police responded to a report of possible loitering at a vacant residence. Upon arriving at the scene, one of the officers observed that the door to a small utility room at the back of the residence was open. About two or three feet from the door, the officer smelled marijuana, at which point he looked inside the utility room and observed four individuals, including M.D. Although none of the individuals were observed smoking marijuana, the room, as well as M.D., smelled like marijuana.

Two of the individuals (not M.D.) dropped bags containing a leafy green substance, which the officer suspected to be marijuana. Additional bags of marijuana were recovered from the room and from one of the other individuals. No marijuana was found in M.D.’s actual possession. The officer also found loose tobacco in the corner of the utility room. He testified that, from his experience, he believed that the tobacco had been removed from a cigar so that the tobacco leaves could be used to wrap marijuana. No cigarettes or packages of loose tobacco were found in the room. All of the individuals had lighters.

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After M.D. was read his Miranda¹ rights, he told one of the officers that he was “there to smoke.” The officer testified that “smoking” is a street term for smoking marijuana. The other officer asked M.D. if he had broken into the house, to which M.D. replied, “we just used the shed to smoke.”

After the State rested its case, M.D. moved for a judgment of dismissal on both counts. The trial court granted the motion on the loitering and prowling charge, denied it on the possession of marijuana charge, and ultimately found M.D. guilty of the possession charge.

On appeal, M.D. argues that the State’s case was entirely circumstantial and that its evidence did not rebut his theory that he was smoking tobacco, not marijuana. He pointed out that one of the officers found loose tobacco on the ground, and that his statement that he “was there to smoke” did not necessarily indicate that he was there to smoke marijuana.

We begin by noting that, because M.D. was not in actual possession of any of the marijuana, the State must prove that he had constructive possession of the marijuana. See J.G. v. State, 881 So. 2d 25, 26 (Fla. 4th DCA 2004). “In order to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the same.” Martoral v. State, 946 So. 2d 1240, 1242 (Fla. 4th DCA 2007). When the premises on which the drugs are found is not in the defendant’s exclusive possession, the defendant’s mere proximity to the drugs is not enough to prove that he constructively possessed them. Id. at 1242-43; Earle v. State, 745 So. 2d 1087, 1089 (Fla. 4th DCA 1999). The State must present independent proof of the defendant’s knowledge and ability to control the drugs. Martoral, 946 So. 2d at 1242-43. This proof may consist of “actual knowledge of the [drug's] presence, evidence of incriminating statements or actions, or other circumstances from which a jury might lawfully infer the defendant’s actual knowledge of the presence of the [drugs].” Earle, 745 So. 2d at 1089 (emphasis added).

“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So. 2d 187, 188 (Fla. 1989). The evidence must be viewed in the light most favorable to the State. Id. at 189. A trial court’s ruling on a motion for judgment of dismissal is de novo. See

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Tillman v. State, 21 So. 3d 163, 165 (Fla. 4th DCA 2009) (noting that “rulings on motions for judgment of acquittal are reviewed de novo”); J.P. v. State, 855 So. 2d 1262, 1264 n.1 (Fla. 4th DCA 2003) (stating that the standard of review for a judgment of dismissal is the same as that for a judgment of acquittal).

The question here is whether M.D.’s statements, in combination with the other evidence in the case, conclusively refute his theory that he was smoking tobacco, not marijuana. The State’s case depends on M.D.’s statement that he was “there to smoke.” In the absence of this statement, the State’s circumstantial evidence would be insufficient to prove that M.D. constructively possessed the marijuana. See, e.g., J.S.M. v. State, 944 So. 2d 1143 (Fla. 2d DCA 2006) (evidence insufficient where the defendant was found with three other people in a hotel room redolent of burnt marijuana and three bags of marijuana were found in plain view); J.J.N. v. State, 877 So. 2d 806 (Fla. 5th DCA 2004) (evidence insufficient where an officer found a baggie of marijuana on the ground near the defendant’s foot); J.A.C. v. State, 816 So. 2d 1228 (Fla. 5th DCA 2002) (evidence insufficient where the defendant was a passenger in a car that smelled like marijuana, marijuana residue was found in the car, and a small marijuana cigar was found in an ashtray on the passenger’s door); K.L. v. State, 787 So. 2d 236 (Fla. 2d DCA 2001) (evidence insufficient where the State proved that the defendant was in the vicinity of the marijuana, an officer smelled a strong odor of burnt marijuana, marijuana was found on another individual and in a nearby vehicle, and the defendant admitted that he had “chipped in” to purchase the marijuana).

In Dubose v. State, 560 So. 2d 323 (Fla. 1st DCA 1990), the First District upheld the defendant’s convictions for possession of cocaine and marijuana. At the time of his arrest, the defendant was in another person’s apartment, standing within arm’s reach of crack cocaine and marijuana. Id. at 324. After being advised that he was under arrest for possession of cocaine and marijuana, the defendant stated that the drugs were not his, “but that he had just gone to the apartment to smoke.” Id. Later, the defendant stated that a woman had invited him to the apartment to smoke crack and that he would not pass up such an opportunity. Id. at 324-25. At trial, the defendant testified that his purpose in going to the apartment might have been to smoke drugs, but he denied that he had gone for that reason. Id. at 325. The First District held that the defendant’s proximity to the drugs and his incriminating statements were sufficient to prove constructive possession. Id.

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Dubose is distinguishable from this case because the defendant in Dubose admitted that he had been invited to the apartment to smoke crack and that he might have seized that opportunity. In this case, M.D. was unclear about what he had smoked in the utility room, he never made any statement about marijuana, and one of the officers found tobacco in the room. Thus, his theory that he was smoking tobacco, not marijuana, was reasonable.

The State tried to rebut M.D.’s theory of innocence by arguing that neither officer found tobacco cigarettes (burnt or otherwise) in the room, and that the room smelled strongly of marijuana. However, the State fails to point out that there was no evidence of any type of cigarette or smoking device in the room even though it was clear that something had been smoked in the room. The fact that tobacco cigarettes were not found does not carry much significance. Moreover, the smell of marijuana does not foreclose the possibility that M.D. was smoking tobacco while the other individuals were smoking marijuana, and that the smell of the marijuana masked the tobacco odor. Finally, the officer’s theory that a tobacco cigarette was hollowed out to make room for marijuana is not inconsistent with M.D.’s theory that he was only smoking tobacco.

Because the State’s circumstantial evidence was not inconsistent with M.D.’s reasonable hypothesis of innocence, the trial court erred in denying the motion for judgment of dismissal on the charge of possession of marijuana.

Reversed.

FARMER and HAZOURI, 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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MICHELLE ANN PATRIZI, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-5206.

District Court of Appeal of Florida, First District.

Opinion filed March 17, 2010.

An appeal from the Circuit Court for Alachua County, Peter K. Sieg, Judge.

Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.

CLARK, J.

The defendant below appeals her convictions of both resisting an officer without violence and resisting a different officer with violence. She asserts that these convictions constitute double jeopardy and thus fundamental error. In

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addition, she challenges her legal, bottom- of- range guidelines sentence, imposed after the trial court denied her request for a downward departure. For the following reasons, the convictions and sentence are affirmed.

After a traffic stop, Appellant was arrested and transported to the police station by Officer Michael Henagan. When Officer Henagan parked in the police station parking lot, the appellant attempted to escape on foot but was promptly apprehended by Officer Henagan and escorted to the breath test room. Once inside, the appellant refused to remain seated, struggled with Officer Steven Jones, and “stomped on” Officer Jones’ foot as she resisted his efforts to restrain her in her seat. Appellant was charged with various crimes, including resisting officer Jones with violence (Count II) and resisting Officer Henagan without violence (Count VI). She entered a plea of nolo contendere and was adjudicated guilty of all charges.

Appellant’s characterization of her convictions for both resisting an officer with violence and resisting an officer without violence as double jeopardy and fundamental error must fail. Appellant’s acts resisting Officer Henagan and later, Officer Jones, were not part of a single criminal episode. “The test for determining whether two crimes occurred in the same criminal episode is whether there was a temporal break between the crimes, such that the defendant had an opportunity to pause, reflect, and form a new criminal intent. . . . If there was such a break, then

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the crimes occurred in separate criminal episodes and may be punished separately.” Beahr v. State, 992 So. 2d 844, 846 (Fla. 1st DCA 2008).

Here, the appellant had an opportunity, after her flight in the parking lot was thwarted by Officer Henagan, to pause, reflect, and decide not to physically resist Officer Jones with violence in the breath test office. Accordingly, the crimes occurred in separate criminal episodes, the convictions were not fundamental error, and Appellant was not “twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const.

Regarding the trial court’s denial of a downward departure and entry of the legal, guidelines sentence, this sentence is not subject to appeal by the defendant under section 924.06, Florida Statutes. See also, Fla. R. App. P. 9.140(b)(1). “Subdivision (b)(1) lists the only matters that may be appealed by a criminal defendant, and it is intended to supersede all other rules of practice and procedure.” Fla. R. App. P. 9.140, Comm. Notes to subdiv. (1)(b), 1977 Amdmt. (emphasis supplied). The sentences which a defendant may appeal are limited to: an illegal sentence, a sentence which exceeds the statutory maximum for the offense, and as “otherwise provided by law.” § 924.06(1)(d) & (1)(e), Fla. Stat.; Fla. R. App. P. 9.140(b)(1)(E) & (b)(1)(F).

This court has recognized that “[t]he courts of Florida have consistently held that the statutory scheme does not give the appellate courts the authority to review

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a trial court’s decision to deny a request for a downward departure sentence.” Stancliff v. State, 996 So. 2d 259, 260 (Fla. 1st DCA 2008); see also, Wyden v. State, 958 So. 2d 540 (Fla. 3d DCA 2007); Jorquera v. State, 868 So. 2d 1250 (Fla. 4th DCA 2004); Patterson v. State, 796 So. 2d 572 (Fla. 2d DCA 2001); Melton v. State, 678 So. 2d 434, 435 (Fla. 1st DCA 1996).

The state candidly disclosed to this court the opinions in Hines v. State, 817 So. 2d 964 (Fla. 2d DCA 2002) and McCorvey v. State, 872 So. 2d 395 (Fla. 1st DCA 2004). In those cases, the appellate courts did consider defendants’ appeals of their lowest-permissible guidelines sentences, imposed after the trial courts declined to depart downward. To the extent that these opinions “otherwise provided by law” an avenue for a defendant’s appeal of a guidelines sentences, the cases are distinguishable.

In both Hines and McCorvey, the trial courts assumed that under the circumstances of those cases, they were precluded as a matter of law from considering facts which might have qualified the defendants for mitigating circumstances to support downward departures. In contrast, the trial court in this case heard testimony and evaluated evidence to determine if the defense had established the mitigating factor provided in section 921.0026(2)(d), Florida Statutes. The court’s application of the statute to the facts presented was not “a misconception about its discretion in sentencing,” as was the case in both Hines

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and McCorvey. The guidelines sentence entered here is not subject to appeal by the appellant/defendant.

AFFIRMED.

VAN NORTWICK and MARSTILLER, JJ., CONCUR.

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

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DEVIN BLOUNT, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4620.

District Court of Appeal of Florida, Fourth District.

March 17, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Paul L. Backman, Judge, L.T. Case No. 08-1688 CF10A.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

Devin Blount (“defendant”) appeals his conviction for third-degree grand theft and battery. We affirm defendant’s battery conviction, but reverse his grand theft conviction and remand for the trial court to adjudicate him guilty of the lesser-included offense of petit theft and resentence him accordingly.

On January 25, 2008, defendant was arrested at a retail store for the theft of a 15-inch LCD TV, a DVD player, and three pairs of Dickie pants. At trial, the store’s loss-prevention officer, who detained defendant with another employee, testified that the TV’s price was about “$200, $300″ and the DVD player’s price was about “$80.” The loss-prevention officer did not testify as to the price of the three pairs of pants; however, he stated that the TV, DVD player, and pants were undamaged after the incident. The investigating police officer subsequently testified, based off his probable cause affidavit, that the total of the TV, DVD player, and pants was $479.96. After the State rested, defendant moved for judgment of acquittal, contending that the State failed to present sufficient evidence regarding the value of the TV, DVD player, and pants. The trial court denied defendant’s motion, finding that the State made a prima facie showing on the elements of grand theft. On appeal, defendant asserts that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence that the TV, DVD player, and pants were valued at $300 or more.

A trial court’s denial of a motion for judgment of acquittal is subject to

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de novo review. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Id. To establish grand theft, the State must prove beyond a reasonable doubt that the value of stolen property is “$300 or more, but less than $5,000.” See § 812.014(2)(c)1., Fla. Stat. (2008). Evidence is generally insufficient to prove the value of stolen property is $300 or more, where the property’s value is estimated. See Gilbert v. State, 817 So. 2d 980, 982-83 (Fla. 4th DCA 2002).

In this case, the loss-prevention officer testified that the TV and DVD player’s prices were about “$200, $300″ and “$80,” respectively, and did not provide a price for the three pairs of pants. The loss-prevention officer’s estimates are insufficient evidence to prove the value of the TV and DVD player. See id. The investigating police officer’s testimony that the TV, DVD player, and pants totaled $479.96 is also insufficient evidence of value, even when viewed in conjunction with the loss-prevention officer’s testimony. The police officer did not provide any basis for the $479.96 total, such as the specific values of the TV, DVD player, and pants, or how or when the total was calculated, or who calculated it. See Evans v. State, 452 So. 2d 1040, 1041 (Fla. 2d DCA 1984) (holding that the State failed to prove value for grand theft, where there was no evidence of the specific values and price tags for the stolen retail property in the defendant’s possession).

Accordingly, we affirm defendant’s battery conviction. However, because the State failed to prove beyond a reasonable doubt that the TV, DVD player, and pants were worth $300 or more, we reverse defendant’s conviction for grand theft and remand for the trial court to adjudicate defendant guilty of the lesser-included offense of petit theft and resentence him accordingly.

Affirmed in part, Reversed in part, and Remanded.

FARMER and HAZOURI, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

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STATE OF FLORIDA, Appellant,
v.
TYLER GOOD, Appellee.

No. 4D09-227.

District Court of Appeal of Florida, Fourth District.

March 17, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Richard Y. Feder, Senior Judge, L.T. Case No. 08-15784 CF10A.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.

No brief filed on behalf of appellee.

CIKLIN, J.

The State appeals the trial court’s order withholding adjudication following the defendant’s no contest plea to two third degree felonies (possession of oxycodone and possession of alprazolam) and one misdemeanor (possession of cannabis). Both before the trial judge and now on appeal, the State argues that the trial court erred in withholding adjudication on the two third degree drug felony charges as being in violation of section 775.08435(1)(c), Florida Statutes (2008). Because the State is simply not honing in on the wording of the applicable statute, we must disagree and affirm.

At the plea hearing, the State recommended that the defendant be adjudicated and objected to a withhold pursuant to section 775.08435(1)(c), because, the State urged, the defendant had “several prior felony convictions.”

But this is not what section 775.08435(1)(c) provides. Section 775.08435(1)(c) prohibits a court from withholding adjudication of guilt upon a defendant for “[a] third degree felony offense if the defendant has a prior withholding of adjudication for a felony offense that did not arise from the same transaction as the current felony offense.”

The State did not argue or present any evidence that the defendant had prior withholds of adjudication. The statute plainly reads that a court may not withhold adjudication of guilty upon a defendant for a third degree felony offense if the defendant has a “prior withholding of adjudication for a felony offense.” A similar situation occurred in State v.

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Barfield, 995 So. 2d 1138 (Fla. 5th DCA 2008). In Barfield, the State appealed the trial court’s decision to withhold adjudication for three third degree felony charges, arguing that the trial court could not withhold adjudication when the defendant had adjudication withheld on a prior felony charge in Texas. Id. at 1138-39. In affirming, the Fifth District found:

[T]he State still has the burden of proving that a defendant was previously charged with a felony for which adjudication was withheld. In this case, the trial court withheld adjudication for the Florida felony charges because “[t]here’s no indication in writing whether or not it’s a felony or a misdemeanor”—the State failed to produce evidence of a prior felony withholding.

Id. at 1139. (alteration in original). Simply put, the State failed to provide sufficient evidence for section 775.08435(1)(c) to be applied.

Affirmed.

GROSS, C.J., and MAY, J., concur.

Not final until disposition of timely filed motion for rehearing.

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ERIC V. ROSS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3292.

District Court of Appeal of Florida, Fourth District.

March 17, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Marc H. Gold, Judge, L.T. Case Nos. 06-18645 CF10A, 07-22018 CF10B and 07-23545 CF10A.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Eric Ross entered a no contest plea to 2006 and 2007 possession of cocaine charges filed in three lower court case numbers. He then sought the imposition of an alternative sentence pursuant to section 948.20, Florida Statutes (2007),¹ authorizing the trial court to withhold the imposition of sentence and to place the defendant on “drug offender probation” if the defendant is “a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a).” The State insisted Ross’s multiple prior, non-drug felony convictions precluded the imposition of sentence under section 948.20, relying upon State v. Langdon, 978 So. 2d 263 (Fla. 4th DCA 2008), where this court held that a defendant with prior, non-drug felony convictions could not receive a sentence of probation under section 948.034, Florida Statutes. The trial court accepted the State’s argument and denied Ross’s motion for alternative sentencing. Ross appealed.

Subsequent to the imposition of sentence, this court held that Langdon does not control the imposition of sentence pursuant to section 948.20 and that a defendant’s prior, non-drug felony convictions do not bar the imposition of a drug offender probation sentence under section 948.20. See Nelson v. State, 16 So. 3d 286 (Fla. 4th DCA 2009); see also State v. Cox, 19 So. 3d 1183 (Fla. 4th DCA 2009); Nelson v. State, 17 So. 3d 911 (Fla. 4th DCA 2009). We thus reverse the trial court’s denial of Ross’s motion for imposition of an alternative sentence pursuant to

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section 948.20 and remand the case so that the trial court may reconsider the matter.

Reversed and Remanded.

WARNER, POLEN and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Manuel Walters, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-1518.

District Court of Appeal of Florida, Third District.

Opinion filed March 17, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Julio E. Jimenez, Judge, Lower Tribunal No. 04-2111.

Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender (Tampa), for appellant.

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

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

PER CURIAM.

Page 2

Manuel Walters appeals his conviction for second-degree murder, asserting fundamental error in the standard manslaughter by act instruction given to the jury.¹ See Fla. Std. Jury Instr. (Crim.) 7.7. We affirm the conviction. See Valdes-Pino v. State, 23 So. 3d 871, 872 (Fla. 3d DCA 2009). However, to preserve the defendant’s rights, we certify direct conflict with Montgomery v. State, ___ So. 2d __ __, 2009 WL 350624 (Fla. 1st DCA 2009), which currently is pending review before the Florida Supreme Court. State v. Montgomery, 11 So. 3d 943 (Fla.2009).

Conviction affirmed, conflict certified.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

Courtesy of David Edelstein

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

No. 4D08-3006.

District Court of Appeal of Florida, Fourth District.

March 17, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Cynthia G. Imperato, Judge, L.T. Case No. 07-17685 CF10B.

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

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

PER CURIAM.

Richard Myshrall timely appeals his judgment of conviction and sentence for criminal conspiracy to commit bank robbery. “[I]n order to establish the corpus delicti of conspiracy, the state must present substantial evidence that the defendant and a coconspirator agreed to commit a crime and that the defendant intended to commit the offense.” Baxter v. State, 586 So. 2d 1196, 1199 (Fla. 2d DCA 1991). “Admissions or confessions of a defendant may not be admitted in evidence absent independently established corpus delicti.” Chaparro v. State, 873 So. 2d 631, 633 (Fla. 2d DCA 2004) (citing Burks v. State, 613 So. 2d 441, 444 (Fla. 1993)). Based on the testimony presented at trial, we find that there was no evidence introduced which would allow for the conclusion that a corpus delicti of conspiracy to commit bank robbery existed so as to permit the admittance of Myshrall’s statement to the police. As such, we find the trial court should have granted Myshrall’s motion for judgment of acquittal as to the conspiracy charge, and we must reverse the conviction and sentence. See Brown v. State, 800 So. 2d 697, 698 (Fla. 1st DCA 2001) (reversing conviction of conspiracy to commit armed robbery because trial court should have granted defendant’s motion for judgment of acquittal where prosecutor failed to present sufficient evidence, independent of appellant’s self-incriminating statement, to establish corpus delicti of the crime).

Reversed.

WARNER, POLEN and STEVENSON, JJ., concur.

Page 2

Not final until disposition of timely filed motion for rehearing.

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The State of Florida, Appellant,
v.
Terrance McCray, Appellee.

No. 3D09-278.

District Court of Appeal of Florida, Third District.

Opinion filed March 17, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Dennis Murphy, Judge, Lower Tribunal No. 08-3374.

Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellee.

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

RAMIREZ, C.J.

Page 2

The State of Florida appeals the defendant Terrence McCray’s downward departure sentence. We reverse, finding that the trial court erred in imposing a sentence that was below the sentencing guidelines, over the State’s objection, without filing written reasons for the downward departure and without any orally stated reasons for a downward departure.

McCray and his co-defendant were charged with burglary of an unoccupied dwelling and criminal mischief. He pled nolo contendere and scored out to twenty-one (21) months in state prison.

At the sentencing hearing, the State objected to McCray being placed on probation because he had scored twenty-one months in state prison. In addition, the State conveyed to the trial court that one of the victims in the case, as well as the victim’s husband, objected to McCray being placed on probation. The State further objected to McCray being placed on probation because he had another open misdemeanor case, resisting an officer without violence. As such, the State argued, McCray was not an appropriate candidate for probation.

In reply, the defense argued that the co-defendant in this case received probation as a youthful offender. The defense further argued that the community would be protected if McCray was placed on probation. The State pointed out to the trial court that the co-defendant was substantially younger than McCray.

Page 3

The trial court thereafter withheld adjudication and sentenced McCray to two years probation, one-hundred community service hours, participation in a jobs program, and restitution in the amount of $205. The State again objected. McCray entered his plea and was sentenced accordingly. The State now appeals.

We agree with the State that the trial court erred when it imposed a sentence, after a plea offer, that constituted a downward departure from the sentencing guidelines, over the State’s objection, without filing written reasons for the downward departure and without any orally stated reasons for the downward departure. When a trial court enters a sentence containing a downward departure from the sentencing guidelines, the trial court must provide valid written reasons for doing so. State v. Green, 932 So. 2d 365 (Fla. 3d DCA 2006). If the trial court does not do so, however, a downward departure sentence may be affirmed if the trial court orally pronounces on the record a valid basis for the sentence. Pease v. State, 712 So. 2d 374 (Fla. 1997); Fla. R. Crim. P. 3.704(d)(27)(A).

In McCray’s case, the trial court did not render written findings. Moreover, a review of the January 13, 2009 plea and sentencing transcript does not indicate that any orally announced basis for the sentence was given.

A plea agreement between the State and a defendant is a valid reason for a departure from the sentencing guidelines, but if the State objects to a plea offer made by the trial court to a defendant, the trial court cannot make such an offer

Page 4

unless it provides clear and convincing reasons for its departure. State v. Johnson, 512 So. 2d 1116, 1116-17 (Fla. 3d DCA 1987).

Accordingly, the plea is vacated and the case is remanded so that McCray may either withdraw his plea or be resentenced within the sentencing guidelines. Franquiz v. State, 682 So. 2d 536 (Fla. 1996).

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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JAMES WIGFALS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-5177.

District Court of Appeal of Florida, Second District.

Opinion filed March 12, 2010.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County, Edward J. Volz, Jr., Judge.

James Wigfals, pro se.

NORTHCUTT, Judge.

After pleading no contest to criminal charges, James Wigfals was sentenced to twenty-seven months’ imprisonment as a habitual offender. Wigfals timely moved to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850, contending that he had been improperly sentenced as a habitual offender. The postconviction court summarily denied his motion. We reverse and remand for further proceedings.

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Wigfals’s motion maintained that his habitual offender sentence was improper under Ashley v. State, 614 So. 2d 486 (Fla. 1993), and its progeny because the State had not notified him of its intent to seek habitual offender sentencing and because the sentencing court had accepted Wigfals’s plea without determining that he was personally aware of the consequences of habitualization. The postconviction court denied the motion on the merits, attaching to its order copies of the State’s notice that it intended to seek habitualization and of Wigfals’s plea agreement.

The attached notice conclusively refuted Wigfals’s assertion that the State had not notified him that it was seeking an enhanced sentence. But the postconviction court did not attach any documents that refuted Wigfals’s second assertion, that when accepting Wigfals’s plea the sentencing court had not ensured that he understood the consequences of a habitual offender sentence. If anything, the plea agreement attached to the postconviction court’s order lent some credence to Wigfals’s allegation. It reflected Wigfals’s understanding that “my sentence will be imposed within the sentencing guidelines.” A habitual offender sentence is not a guidelines sentence. See § 775.084(4)(h), Fla. Stat. (2006); cf. State v. Matthews, 891 So. 2d 479, 489-91 (Fla. 2004) (discussing the differences between guidelines and habitual sentences). Accordingly, because the documents attached to the postconviction court’s order did not conclusively establish that Wigfals was not entitled to relief, we must reverse and remand for further proceedings. See Fla. R. App. P. 9.141(b)(2)(D).

Another issue must be addressed before the postconviction court revisits this matter on remand: Wigfals’s motion was facially insufficient because he did not describe how he was prejudiced by the alleged Ashley violation. See Newsome v.

Page 3

State, 704 So. 2d 213, 214 (Fla. 2d DCA 1998) (holding that an allegation of prejudice is essential when seeking postconviction relief based on an Ashley error; the defendant must allege that he would not have entered the plea if he had understood the consequences of habitualization). Therefore, the postconviction court should not have reached the merits of Wigfals’s claim, but instead should have stricken the motion and given Wigfals an opportunity to amend it. See Agent v. State, 19 So. 3d 1114, 1115 (Fla. 2d DCA 2009) (citing Spera v. State, 971 So. 2d 754 (Fla. 2007)).

To summarize, we reverse and remand for further proceedings. On remand, the postconviction court must first allow Wigfals an opportunity to amend his pleading to allege a facially sufficient claim. If he does so, the postconviction court either may grant an evidentiary hearing on the claim or, if the record shows conclusively that Wigfals is entitled to no relief, may again summarily deny the claim and attach the documents that support the denial.

Reversed and remanded.

WALLACE and CRENSHAW, JJ., Concur.

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

Courtesy of David Edelstein

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