Florida Criminal Law Opinions

MARCELLUS DESMOND CALLOWAY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-2987.

District Court of Appeal of Florida, First District.

Opinion filed April 29, 2010.

An appeal from the Circuit Court for Wakulla County, N. Sanders Sauls, Judge.

Edward T. Bauer of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Appellant.

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

HAWKES, C.J.

The defendant in this direct criminal appeal challenges his conviction for aggravated battery on a law enforcement officer. Specifically, the defendant argues the trial court committed fundamental error by instructing the jury on an uncharged alternative theory of aggravated battery. We disagree. We affirm the

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defendant’s conviction holding section 784.045, Florida Statutes (2008), creates two, not four, distinct aggravated battery crimes and that the trial court properly instructed the jury under the first of the two distinct crimes.

Defendant’s Argument

The defendant raises a detailed argument that reversal is warranted because he may have been convicted of a crime he was not charged with committing. His argument is: (1) Section 784.045 creates four separate crimes of aggravated battery; (2) The information charged the defendant with committing “great bodily harm aggravated battery,” one of the four separate crimes, not “permanent disability aggravated battery,” another of the crimes; (3) At trial, the State introduced unobjected-to evidence that was probative of this “permanent disability aggravated battery”; (4) At the close of trial, the trial judge read, without objection, the standard jury instruction for aggravated battery. Contained within the standard instruction was the uncharged crime of “permanent disability aggravated battery”; (5) Because the jury may have convicted the defendant for committing this “permanent disability aggravated battery” rather than the charged “great bodily harm aggravated battery,” the instruction was erroneous; and (6) Such an error is per se reversible. We disagree. There are at least five flaws in the defendant’s logic which we have set out below. In the first section, we explain that the statute creates two, not four aggravated battery offenses. In the last four sections, we

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explain why we would affirm the defendant’s conviction even if he were correct in arguing the statute created four aggravated battery offenses.

First, section 784.045 creates only two aggravated battery crimes, not four. Both the structure of the statute and the case law interpreting the statute support this premise.

Second, the information sufficiently placed the defendant on notice as to what conduct he was being prosecuted for, rendering any error harmless.

Third, the evidence presented supports a finding of great bodily injury, the crime charged. The fact that the evidence could also support another uncharged crime is inconsequential.

Fourth, the standard jury instruction did not result in fundamental error, under these facts.

Fifth, existing case law prohibits reversal. On two separate occasions, the defendant acquiesced and agreed to the use of the allegedly erroneous jury instruction. Accordingly, the error was invited and cannot result in reversal.

We discuss each of these five points in turn.

The Statute Consists of Two Subsections and Creates Only Two Offenses of Aggravated Battery

Section 784.045 sets forth only two crimes of aggravated battery. Evidence that the statute creates two crimes can be found in the simple fact that the statute contains two subsections. The first subsection, 784.045(1)(a)1, sets forth a crime

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that focuses on the harm suffered by the victim. Included in this crime are acts resulting in what the statute describes as great bodily harm, permanent disability, or permanent disfigurement. The second subsection, 784.045(1)(a)2, sets forth a crime that focuses on the weapon the defendant used to commit the battery. Only the first subsection is relevant to the instant case.

Not only does the structure of section 784.045 logically suggest two crimes, but the Florida Supreme Court has interpreted the statute as creating only two crimes. See State v. Warren, 796 So. 2d 489 (Fla. 2001). In Warren, the Court held “[t]he term aggravated battery refers to the touching or striking (battery) of another which causes great bodily injury [the first crime — subsection 1] or where a deadly weapon is used [the second crime — subsection 2].” Id. at 490-91. (emphasis added). The phrase “great bodily injury” is not a phrase found in the statute; it is the phrase the Supreme Court used when interpreting the statute. Consistent with the language and structure the Legislature used in drafting section 784.045(1)(a)1, the Supreme Court condensed the terms great bodily harm, permanent disfigurement and permanent disability into the single, logical phrase “great bodily injury” to describe the first crime.

Here, the State based its charge, as set forth in the information, on the “great bodily injury” the defendant caused the victim, Deputy Page. The evidence showed Deputy Page was driven to the ground by the defendant, his elbow was

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ripped open to the bone, his wound required internal and external stitches and he still suffers numbness as a result of the injury. Deputy Page’s doctors told him that the injury was so severe (or great) he would suffer its consequences for the rest of his life. It is obvious Deputy Page suffered “great bodily injury” as discussed by the Supreme Court in Warren. That is the offense that was charged and that is the offense that was proven. There was no error in the evidence or in the instructions.

The Information Sufficiently Placed the Defendant on Notice of the Criminal Conduct He was Charged with Committing

Even if we accepted the defendant’s argument that the statute created four separate aggravated battery crimes, the conviction would still be affirmed. The information placed the defendant on sufficient notice of the conduct for which he was being prosecuted. Florida courts have consistently held that when an information cites a specific statute, the defendant is put on notice that he is charged with each of the elements of the offense contained in that statute. See DuBoise v. State, 520 So. 2d 260, 265 (Fla. 1988); see also Jacques v. State, 1 So. 3d 1112 (Fla. 4th DCA 2009) (holding an information that references a specific section of the criminal code is sufficient to charge the defendant with committing the crime contained in that section); and see State v. Covington, 392 So. 2d 1321 (Fla. 1981) (holding an information citing a specific statute will be invalid only where it is “so imprecise as to leave the defendant entirely unable to reasonably discern what conduct the prosecution relies upon”).

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Any concern, that the information did not put the defendant on notice that he might be convicted of “permanent disability aggravated battery,” is completely unsupported. The information specifically charged the defendant with violating section 748.045 — the aggravated battery statute. Therefore, the defendant had sufficient notice that he could be convicted of any of the crimes listed in that specific section of the criminal code. The case law has mandated that a criminal defendant must establish an information was so imprecise that it left him entirely unable to discern the actions he is being prosecuted for. Here, there is no dispute that the information placed the defendant on notice that he could be convicted based on the permanent (or great) harm he did to Deputy Page’s elbow.¹ Thus, because the defendant was charged with violating the aggravated battery statute, there can be no error in reading the standard jury instruction for that statute.

The State’s Evidence Was Probative of the Charged Offense

Assuming arguendo that sub-section 784.045(1)(a)1 should be interpreted as containing three separate crimes of aggravated battery, the defendant unpersuasively argues the State sought to convict him for the uncharged crime of, “permanent disability aggravated battery.” The fact that some of the State’s evidence could have proven “permanent disability aggravated battery” (if there

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were such a crime), does not preclude this evidence from being offered to prove Deputy Page suffered great bodily harm.

Relevant and material evidence is always admissible. This is true even if it would also support some uncharged crime. See McLean v. State, 934 So. 2d 1248 (Fla. 2006) (holding “relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime; the test of admissibility of collateral crime evidence is relevancy, and the test of inadmissibility is a lack of relevancy”).

Under any theory, the State had the burden of proving the victim suffered great bodily harm. To do so, the State presented evidence regarding the extent of Deputy Page’s injuries. Evidence of the extent of the injuries is always critical for the jury to determine if they resulted in great bodily harm.

Obviously, if the victim suffers only minor injury, a charge of “great bodily harm aggravated battery” could not be proven. A determination that the injury was only “minor” would include consideration of such factors as how long the injury took to heal and how long the injury impacted the victim’s quality of life. Using the same criteria, a victim that took a long time to heal and suffered adverse impacts for a long period of time could reasonably be found to have suffered “great bodily harm.” However, if the defendant’s logic is correct, once the injury becomes permanent it can no longer be found to be “great.” This means that if a

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victim suffered the loss of a leg, for instance, the State could not convict the defendant of inflicting great bodily harm because the injury would be permanent. Clearly, that cannot be the rule.

Put simply, the fact that Deputy Page’s injuries were so severe that they resulted in his permanent disability is relevant evidence of great bodily harm. Thus, because the State’s evidence was relevant, probative and material to the charged offense, there was no error.

The Unobjected-To Jury Instruction Does Not Result in Fundamental Error

The defendant did not object to the alleged error in the jury instruction. Because unobjected-to, the error was unpreserved. Because unpreserved, the error is of no consequence here unless it is found to be fundamental. Fundamental error results only when an unobjected-to error “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Cardenas v. State, 867 So. 2d 384, 390 (Fla. 2004); see also Walls v. State, 957 So. 2d 586, 588 (Fla. 2007). Obviously, the only way to determine if error is fundamental is to engage in a weighing process. The defendant would have us circumvent this process and find his proposed error in the jury instructions to be fundamental per se.

The Florida Supreme Court has never ruled that all jury instruction errors constitute fundamental error. See Martinez v. State, 981 So. 2d 449 (Fla. 2008).

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Even in cases concerning an uncharged offense — the defendant’s argument here — the Supreme Court has refused to adopt a per se reversal rule. See Weaver, 957 So. 2d at 586. Weaver does not stand as a narrow exception to a well-established rule. Instead, Weaver stands for the proposition that in determining if a jury instruction error is fundamental, appellate courts will evaluate the impact an erroneous instruction had on the trial.

Under Weaver, this evaluation has two prongs. Both of these prongs must be satisfied before a defendant can have a conviction reversed. The first prong requires a showing that the State introduced evidence to prove the uncharged crime. The second prong requires a showing that the State made arguments based on the uncharged crime. Neither prong is met here.

The defendant argues the first prong was satisfied because some of the State’s evidence could have proven “permanent disability aggravated battery.” As previously discussed, this is incorrect. The evidence was completely admissible to prove Deputy Page suffered great bodily harm. Therefore, definitionally, it was not offered to prove an uncharged offense.

In deciding whether the second prong is met, the Supreme Court examines what issues were contested or disputed at trial. See Weaver. In evaluating this record, it is clear the State did not argue that the jury could convict the defendant based solely on Deputy Page’s permanent disability. The record is even clearer

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that the defense did not “dispute” or “contest” Deputy Page’s injuries. The defense made no challenge to the assertion that the victim suffered great bodily harm. Rather, the defense based its entire trial strategy on the defendant’s lack of the requisite intent to harm Deputy Page. Thus, the defendant’s intent, and not the extent or permanence of the injury, was the sole issue in dispute at trial.

Further record evidence that the State did not argue the uncharged crime can be found by examining the closing argument. See Weaver. The closing argument in this case comprises about sixteen pages of transcript. These sixteen pages include the State’s close, the defense’s close and the State’s rebuttal. Neither the State in its close, nor the defense in its close, made any reference to Deputy Page’s injuries. The entire argument is focused on intent and different aspects of the evidence that would support a finding either that the defendant intended his actions or that he did not.

Not until the State’s rebuttal argument is there any reference to the actual injuries Deputy Page suffered. These comments comprise fewer than sixty words, and under any fair analysis, speak only to the issue of great bodily harm, the charged offense. After telling the jury that Deputy Page suffered “serious bodily harm,” the prosecution then just simply lists the injuries to support the allegation. The argument reads:

This is serious bodily harm, I would submit to you. He’s permanently disabled, 2 percent, has lost some feeling in

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his hand. His ulnar nerve on his elbow after a year is still not where it should be. He had internal stitches and external stitches. Had gravel in the wound. Had several marks and cuts around his elbow.

The State argued that these facts elicited during trial were sufficient to convict the defendant of inflicting “serious bodily harm.” Here, as in Weaver, the State did not rely upon an uncharged crime or theory in its prosecution and the allegedly erroneous instruction did not concern a critical or disputed jury issue. Thus, using a proper analysis, it is clear the court’s reading of the standard jury instruction did not “reach down into” the validity of the trial and vitiate the verdict. Therefore there was no fundamental error.

Acceptance of the Defendant’s Argument Would Create a Bizarre Incentive for Defense Counsel to Agree to Incorrect Jury Instructions

The defendant requests we reverse a verdict even though the trial court read a standard jury instruction the defendant expressly agreed to on two separate occasions. The general rule in criminal law is that where a trial court has extended counsel an opportunity to cure an error, and counsel fails to take advantage of such an opportunity, the error is considered acquiesced to and does not warrant reversal. See Ray v. State 403 So. 2d 956, 960 (Fla. 1981). Here, the defendant did not object to the instruction he argues was so faulty that it “reached down into the validity of the trial.” In fact, at both the charge conference and immediately after the instructions were read to the jury, the defendant specifically agreed to the

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instructions and stated he had no objections to them as proposed and as read.

To reverse under these facts would guarantee a defendant a new trial anytime there was any error in an instruction. The consequence of such a rule would essentially obligate a defense attorney to stand mute and, if necessary, agree to an erroneous instruction where, as here, the allegedly faulty instruction does not involve an issue in dispute. In fact, under such precedent, an attorney who brings a faulty jury instruction to the court’s attention or refuses to agree to an instruction that misstates the law would sacrifice his client’s opportunity for a second trial and would risk being found incompetent as a consequence.

We affirm the trial court’s ruling.

AFFIRMED.

ROBERTS AND CLARK, JJ., CONCUR.

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

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Notes:

1. If the defendant was confused as to what the information charged, he had the option of moving for a statement of particulars. See Fla. R. Crim. P. 3.140(n) (2008).

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Courtesy of David Edelstein

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TERRANCE MACK CURTIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-3775.

District Court of Appeal of Florida, Second District.

Opinion filed April 28, 2010.

Appeal from the Circuit Court for Lee County; Mark A. Steinbeck, Judge.

James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Terrance Mack Curtis challenges his judgments and sentences for possession of cocaine, possession of a controlled substance, and possession of drug paraphernalia. Curtis entered no contest pleas to the charges while appearing pro se.

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On appeal, he argues that the trial court failed to make an adequate Faretta¹ inquiry before allowing him to proceed pro se and that this was fundamental error requiring reversal. We agree.

The trial court originally appointed counsel to represent Curtis in the case. However, as the case proceeded, Curtis filed a motion to dismiss his attorney, alleging that the attorney had failed to perform an adequate pretrial investigation. After conducting a Nelson² hearing, the trial court denied this motion. The trial court then conducted a hearing on a motion to suppress filed by defense counsel. After this motion was denied, Curtis filed a pro se motion requesting a Faretta hearing, seeking to discharge his appointed counsel and proceed pro se. In that motion Curtis also set forth new allegations of ineffectiveness on the part of his appointed counsel based on counsel’s failure to call necessary witnesses at the suppression hearing and to adequately prepare for the hearing. Curtis specifically requested that he be allowed to represent himself and identified the need for the trial court to conduct a Faretta hearing.

Curtis and his appointed counsel appeared before the trial court on July 16, 2007. At the outset, the trial court noted that while the motion only requested a Faretta hearing, the allegations of ineffectiveness raised issues requiring a second Nelson hearing. After inquiring of Curtis regarding his dissatisfaction with his attorney, the trial court concluded that although counsel was not ineffective, a breakdown of the attorney-client relationship had occurred. Based on this breakdown, the trial court

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discharged appointed counsel and advised Curtis that conflict-free counsel would be appointed.

Curtis objected because the appointment of new counsel would cause delay in the proceedings, during which he would remain in jail. He then advised the trial court that he would accept the State’s previous plea offer. Curtis’ original, discharged counsel, who was still present at the hearing, made it clear that he was not appearing as counsel for the purpose of the plea hearing. Thus Curtis represented himself during the plea colloquy, which was conducted by the State rather than the trial court.³ During the colloquy, the State sought to establish the voluntary nature of the plea and Curtis’ awareness and understanding of the trial rights he was forfeiting by making the requisite inquiries regarding Curtis’ age, education, and mental capacity. However, no formal Faretta inquiry was ever conducted.

Pursuant to Florida Rule of Criminal Procedure 3.111(d)(2), “[a] defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver.” In conducting a hearing pursuant to Faretta and rule 3.111, the trial court is “required to inquire about [the defendant's] age, education, mental condition, and experience and knowledge of criminal proceedings. Further, the trial court [is] required to inform [the defendant] of the disadvantages and dangers of self-representation.” Watkins v. State, 959 So. 2d 386, 388 (Fla. 2d DCA 2007) (citing

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Jones v. State, 658 So. 2d 122, 125 (Fla. 2d DCA 1995)). It is only after the court is satisfied that the accused has made a knowing and intelligent waiver of counsel that the accused should be allowed to proceed pro se. Id.

On appeal, the State argues that the plea colloquy itself not only reflects that Curtis entered his plea knowingly and intelligently but also that he knowingly and intelligently waived counsel despite the fact that a separate, formal Faretta hearing was never conducted. We do not agree. The record shows that during the plea colloquy, neither the State nor the trial court advised Curtis of the disadvantages and dangers of self-representation and that no inquiry was made regarding his familiarity with the legal system. These are the inquiries required by Faretta before the trial court may allow self-representation. Watkins, 959 So. 2d at 387.

We note that the record before us does reflect that Curtis expressed a desire to waive counsel and enter a plea that day. Nevertheless, we must reverse because the trial court committed fundamental error by failing to fully comply with the Faretta requirements and not ensuring that Curtis’ decision was made knowingly and intelligently. See State v. B.P., 810 So. 2d 918, 919 (Fla. 2002) (“[E]ven absent a motion to withdraw a plea, failure to advise . . . of [the] right to counsel . . . is reviewable and correctable on appeal.”); Clary v. State, 818 So. 2d 686, 688 (Fla. 5th DCA 2002) (concluding that even if the accused waives counsel on the record, the trial court must make the inquiries required by Faretta and rule 3.111(d) in order to ensure that such waiver is knowingly and intelligently made, otherwise “[the] plea . . . is fatally flawed”). Accordingly, we reverse the judgments and sentences and remand for the trial court to

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set aside the plea and properly advise Curtis of his right to the assistance of counsel before proceeding.

Reversed and remanded with instructions.

KHOUZAM and CRENSHAW, JJ., Concur.

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

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Notes:

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Courtesy of David Edelstein

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TERRANCE MACK CURTIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-3775.

District Court of Appeal of Florida, Second District.

Opinion filed April 28, 2010.

Appeal from the Circuit Court for Lee County; Mark A. Steinbeck, Judge.

James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Terrance Mack Curtis challenges his judgments and sentences for possession of cocaine, possession of a controlled substance, and possession of drug paraphernalia. Curtis entered no contest pleas to the charges while appearing pro se.

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On appeal, he argues that the trial court failed to make an adequate Faretta¹ inquiry before allowing him to proceed pro se and that this was fundamental error requiring reversal. We agree.

The trial court originally appointed counsel to represent Curtis in the case. However, as the case proceeded, Curtis filed a motion to dismiss his attorney, alleging that the attorney had failed to perform an adequate pretrial investigation. After conducting a Nelson² hearing, the trial court denied this motion. The trial court then conducted a hearing on a motion to suppress filed by defense counsel. After this motion was denied, Curtis filed a pro se motion requesting a Faretta hearing, seeking to discharge his appointed counsel and proceed pro se. In that motion Curtis also set forth new allegations of ineffectiveness on the part of his appointed counsel based on counsel’s failure to call necessary witnesses at the suppression hearing and to adequately prepare for the hearing. Curtis specifically requested that he be allowed to represent himself and identified the need for the trial court to conduct a Faretta hearing.

Curtis and his appointed counsel appeared before the trial court on July 16, 2007. At the outset, the trial court noted that while the motion only requested a Faretta hearing, the allegations of ineffectiveness raised issues requiring a second Nelson hearing. After inquiring of Curtis regarding his dissatisfaction with his attorney, the trial court concluded that although counsel was not ineffective, a breakdown of the attorney-client relationship had occurred. Based on this breakdown, the trial court

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discharged appointed counsel and advised Curtis that conflict-free counsel would be appointed.

Curtis objected because the appointment of new counsel would cause delay in the proceedings, during which he would remain in jail. He then advised the trial court that he would accept the State’s previous plea offer. Curtis’ original, discharged counsel, who was still present at the hearing, made it clear that he was not appearing as counsel for the purpose of the plea hearing. Thus Curtis represented himself during the plea colloquy, which was conducted by the State rather than the trial court.³ During the colloquy, the State sought to establish the voluntary nature of the plea and Curtis’ awareness and understanding of the trial rights he was forfeiting by making the requisite inquiries regarding Curtis’ age, education, and mental capacity. However, no formal Faretta inquiry was ever conducted.

Pursuant to Florida Rule of Criminal Procedure 3.111(d)(2), “[a] defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver.” In conducting a hearing pursuant to Faretta and rule 3.111, the trial court is “required to inquire about [the defendant's] age, education, mental condition, and experience and knowledge of criminal proceedings. Further, the trial court [is] required to inform [the defendant] of the disadvantages and dangers of self-representation.” Watkins v. State, 959 So. 2d 386, 388 (Fla. 2d DCA 2007) (citing

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Jones v. State, 658 So. 2d 122, 125 (Fla. 2d DCA 1995)). It is only after the court is satisfied that the accused has made a knowing and intelligent waiver of counsel that the accused should be allowed to proceed pro se. Id.

On appeal, the State argues that the plea colloquy itself not only reflects that Curtis entered his plea knowingly and intelligently but also that he knowingly and intelligently waived counsel despite the fact that a separate, formal Faretta hearing was never conducted. We do not agree. The record shows that during the plea colloquy, neither the State nor the trial court advised Curtis of the disadvantages and dangers of self-representation and that no inquiry was made regarding his familiarity with the legal system. These are the inquiries required by Faretta before the trial court may allow self-representation. Watkins, 959 So. 2d at 387.

We note that the record before us does reflect that Curtis expressed a desire to waive counsel and enter a plea that day. Nevertheless, we must reverse because the trial court committed fundamental error by failing to fully comply with the Faretta requirements and not ensuring that Curtis’ decision was made knowingly and intelligently. See State v. B.P., 810 So. 2d 918, 919 (Fla. 2002) (“[E]ven absent a motion to withdraw a plea, failure to advise . . . of [the] right to counsel . . . is reviewable and correctable on appeal.”); Clary v. State, 818 So. 2d 686, 688 (Fla. 5th DCA 2002) (concluding that even if the accused waives counsel on the record, the trial court must make the inquiries required by Faretta and rule 3.111(d) in order to ensure that such waiver is knowingly and intelligently made, otherwise “[the] plea . . . is fatally flawed”). Accordingly, we reverse the judgments and sentences and remand for the trial court to

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set aside the plea and properly advise Curtis of his right to the assistance of counsel before proceeding.

Reversed and remanded with instructions.

KHOUZAM and CRENSHAW, JJ., Concur.

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

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Notes:

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Courtesy of David Edelstein

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TAYLOR PETERS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3299.

District Court of Appeal of Florida, Fourth District.

April 28, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 05-576 CF10A.

Carey Haughwout, Public Defender, and Christine C. Geraghty, 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.

LEVINE, Judge.

The issue we consider is whether the trial court should have given a special jury instruction regarding “mere presence” at a crime scene or whether the standard jury instruction regarding principal or independent acts was sufficient. We find the standard jury instruction given in this case was sufficient and affirm the conviction for first degree murder.

In May 2003, appellant went to a lounge in Miramar with three other individuals: Jason, Claud, and “Jaja.” When the four men left the lounge hours later, an incident took place in the lounge parking lot. Appellant was struggling with a man, and Claud walked over to them with a gun. Appellant released the man, who got into a car and started to drive in reverse. Claud asked the man where he was going and then fired four to six shots at the driver. Appellant asked Claud, “What the hell are you doing?”

Jaja also had a gun and held a second individual in a chokehold with appellant’s help. Jaja then shot the other man when he tried to break free. Claud walked over, shot this second individual again, and took a gold necklace from around the victim’s neck. Claud was identified as using an AK-47, and at no time was appellant seen holding or using a firearm of any type. Claud then threatened to shoot Jason when Jason could not find the keys to the vehicle. Appellant found the keys and drove Claud, Jaja, and Jason away from the lounge. Later, appellant told Claud to “handle the situation” if Jason got “any funny ideas.” Jason subsequently avoided appellant, Jaja, and Claud, and eventually Jason moved to the Tampa area about four to five months after the

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shooting.

As a result of the shooting, victim Amrall Johnson was in a coma for three to five months, and victim Lloyd Bartley died as a result of being shot in the chest. After a jury trial, appellant was convicted of first degree murder of Bartley and acquitted of attempted felony murder of Johnson. Appellant was sentenced to life in prison, and this appeal ensues.

At the charge conference during the jury trial, appellant moved for a special jury instruction that stated that the “mere presence of Taylor Peters at the scene of the crimes and knowledge that those crimes were being committed is not sufficient . . . to establish that Taylor Peters aided and abetted the criminal offenses charged.” The trial court declined to give the special instructions requested by appellant and instead read Florida Standard Jury Instruction (Criminal) 3.5(a):

If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did if:

1. the defendant had a conscious intent that the criminal act be done and

2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime.

To be a principal the defendant does not have to be present when the crime is committed or attempted.

Standard jury instructions are “presumed correct and are preferred over special instructions.” Brown v. State, 11 So. 3d 428, 432 (Fla. 2d DCA 2009) (quoting Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001)). Using “standard jury instructions does not relieve the trial court of its obligation to determine whether the standard instructions accurately and adequately state the law.” Id. If the trial court determines that the instruction is “erroneous or inadequate,” the court may then modify the standard jury instruction as the “trial judge shall determine to be necessary to instruct the jury accurately and sufficiently.” Fla. R. Crim. P. 3.985.

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We review the refusal of the trial court to give the defendant’s special instruction under the abuse of discretion standard. “When a trial court denies a defendant’s request for a special instruction, the defendant has the burden of showing on appeal that the trial court abused its discretion in giving the standard instruction.” Brickley v. State, 12 So. 3d 311, 313 (Fla. 4th DCA 2009).

A trial court’s failure to give a requested jury instruction is error if the following three elements are satisfied: “(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.”

Id. (quoting Stephens, 787 So. 2d at 756).

The parties contest whether the standard jury instruction on “principals” adequately explained the law and appellant’s theory of defense. Appellant claims that the standard jury instruction did not adequately explain that “mere presence” at a crime is insufficient to prove criminal complicity.

This court has previously stated when “faced with a defense request to give a `mere presence’ instruction . . . that the matter was `well covered’ by the instruction on principals.” Parker v. State, 795 So. 2d 1096, 1100 (Fla. 4th DCA 2001) (quoting Wolack v. State, 464 So. 2d 587, 588 (Fla. 4th DCA 1985)). In McGuire v. State, 639 So. 2d 1043, 1047 (Fla. 5th DCA 1994), the defendant requested a special instruction in a first degree murder trial that stated that mere presence at the scene of a crime does not mean that an “accused knew a crime was going to be committed.” The court found that the standard jury instruction was not error, and in fact, “[i]t is preferable that the standard jury instruction be given if it explains the law.” Id. Thus, the refusal to give proposed instructions is not error “when the proposed instructions add nothing to the standard instructions.” Williams v. State, 492 So. 2d 1388, 1389 (Fla. 1st DCA 1986).

For all the foregoing reasons, we affirm the conviction and sentence.

Affirmed.

Taylor and Gerber, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

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JOHN KEVIN HOLT, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4227.

District Court of Appeal of Florida, Fourth District.

April 28, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Lawrence Mirman, Judge; L.T. Case No. 472006CF000103A.

Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, Judge.

John Kevin Holt appeals his convictions and sentences for capital sexual battery (count I), lewd, lascivious or indecent act (count II), lewd or lascivious molestation on a person under twelve by a person over eighteen (count III), and lewd or lascivious molestation on a person twelve to sixteen by a person over eighteen (count IV). After a jury found him guilty of all charges, the trial court imposed life imprisonment on counts I and III and fifteen years on counts II and IV, all to run consecutive. We affirm Holt’s convictions on the four counts but vacate his sentences and remand for resentencing before a different judge.

In this case, Holt has repeatedly denied committing the crimes charged and has persisted in maintaining his innocence. As such, the established law compels us to conclude that it was improper for the trial court to consider Holt’s protestations of innocence and failure to show remorse in determining what sentence to impose.

A trial court generally has discretion to impose any sentence within the minimum and maximum allowed by law. Nusspickel v. State, 966 So. 2d 441, 444 (Fla. 2d DCA 2007); see also § 921.002(1)(f), (g), Fla. Stat. (2008). This discretion is limited, however, by constitutional principles of due process and the right not to incriminate oneself. See Holton v. State, 573 So. 2d 284, 292 (Fla. 1990); Donaldson v. State, 16 So. 3d 314, 314 (Fla. 4th DCA 2009); Johnson v. State, 948 So. 2d 1014, 1017 (Fla. 3d DCA 2007); Gilchrist v. State, 938 So. 2d 654, 657-58 (Fla. 4th DCA 2006); Soto v. State, 874 So. 2d 1215, 1217 (Fla. 3d DCA 2004); Aliyev v. State, 835 So. 2d 1232, 1234 (Fla. 4th DCA 2003); Lyons v. State, 730

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So. 2d 833, 834 (Fla. 4th DCA 1999); A.S. v. State, 667 So. 2d 994, 996 (Fla. 3d DCA 1996); Exposito v. State, Dep’t of Bus. Regulation, 508 So. 2d 451, 452 (Fla. 3d DCA 1987); Hubler v. State, 458 So. 2d 350, 353 (Fla. 1st DCA 1984); Harden v. State, 428 So. 2d 316, 317 (Fla. 4th DCA 1983).

Even in the face of overwhelming evidence, a person in Holt’s position is constitutionally entitled to plead not guilty, demand a trial, and despite a unanimous jury verdict, continue to decline to incriminate himself. See Holton, 573 So. 2d at 292.

Convictions affirmed; sentences vacated and remanded for resentencing before a different judge.

May, J., concurs.

Gross, C.J., concurs specially with opinion.

Gross, C.J., concurring specially.

I acknowledge the line of cases cited by the majority opinion. It is the law. The effect of this law is to require judges to be careful what they say in sentencing.

Whether a criminal defendant is remorseful for what he or she has done has long been a proper factor for a judge to consider in imposing sentence. As we wrote in St. Val v. State, 958 So. 2d 1146, 1146-47 (Fla. 4th DCA 2007),

[i]f a defendant is remorseful, it means that he is sorry he committed the crime for which he is to be sentenced. One who so regrets his acts may not commit such acts in the future. This is the type of factor that judges have historically taken into consideration in imposing sentence.

Given the state of the case law, careful judges will not discuss a defendant’s lack of remorse during a sentencing hearing.

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Not final until disposition of timely filed motion for rehearing.

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GEORGINA SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-3547.

District Court of Appeal of Florida, Second District.

Opinion filed April 28, 2010.

Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge.

James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Georgina Smith appeals the judgments and sentences imposed after she entered no contest pleas to charges of grand theft and scheming to defraud. Ms.

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Smith’s counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and In re Anders Briefs, 581 So. 2d 149 (Fla. 1991). After a careful review of the record, we find no error in Ms. Smith’s judgments and the probationary sentences imposed. However, we reverse and remand with directions to correct the amended judgment for fines and costs by striking a $20 cost for the Crime Stoppers Trust Fund.

The original written judgment for fines and costs included a $175 fine under section 775.083, Florida Statutes (2006). In addition, the written judgment for fines and costs included a $20 cost for the Crime Stoppers Trust Fund in accordance with section 938.06, Florida Statutes (2006). The $175 fine was a discretionary fine that should have been orally pronounced at sentencing but was not. See Masengale v. State, 969 So. 2d 1218, 1219 (Fla. 2d DCA 2007). Ms. Smith filed a motion to correct sentencing error in which she sought relief from both the $175 fine and the $20 surcharge under Masengale. The trial court ordered the State to respond but only directed the State’s attention to the $175 fine. The State responded, conceding error. The trial court then entered an order directing the clerk of the circuit court to strike the $175 fine, and an amended judgment for fines and costs was subsequently entered, deleting the $175 fine. However, the order failed to address the $20 surcharge, and the amended judgment for fines and costs still contains this surcharge.

On appeal, Ms. Smith argues that the trial court erroneously failed to strike the $20 cost in addition to the $175 fine. Ms. Smith is correct, and the State properly concedes error. Section 938.06(1) authorizes the additional $20 cost as “an additional surcharge” “to any fine prescribed by law.” Because the $175 fine was not properly imposed, the trial court could not impose the additional $20 surcharge. Perdue v. State,

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17 So. 3d 1283, 1283 (Fla. 2d DCA 2009); Masengale, 969 So. 2d at 1219. Therefore, this cost should have been stricken as well.

Accordingly, we affirm the judgments and sentences imposed on Ms. Smith, but we remand for the entry of a second amended judgment for fines and costs striking the $20 surcharge.

Affirmed and remanded with instructions.

KHOUZAM and CRENSHAW, JJ., Concur.

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

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KENNETH L. INGRAHAM, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D06-4541.

District Court of Appeal of Florida, Second District.

Opinion filed April 28, 2010.

Appeal from the Circuit Court for Pinellas County; W. Douglas Baird and Jack Day, Judges.

James Marion Moorman, Public Defender, and Lisa B. Lott, Special Assistant Public Defender, Bartow, for Appellant.

Kenneth L. Ingraham, pro se.

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

WALLACE, Judge.

Kenneth L. Ingraham challenges the judgments and sentences imposed on him after a jury found him guilty of unlawful possession of a concealed handcuff key,

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a violation of section 843.021(2), Florida Statutes (2004), and felony vending machine theft, a violation of section 877.08(3), (4), Florida Statutes (2004).¹ The trial court sentenced Mr. Ingraham to five years in the state prison on each offense. The sentences were designated to run concurrently with each other and consecutively to Mr. Ingraham’s sentence in another case.

On appeal, Mr. Ingraham addresses four points. First, he argues that he was improperly convicted of felony vending machine theft when the information omitted to state an essential element of that offense, to wit: that he intended to commit larceny. Second, with respect to the felony vending machine theft charge, the trial court committed fundamental error by failing to instruct the jury on the element of the requisite intent to commit larceny. Third, the trial court failed to conduct adequate Nelson² and Faretta³ inquiries before permitting Mr. Ingraham to discharge his court-appointed counsel and represent himself at his trial and at his sentencing. Fourth, the trial court erred in imposing investigative costs in the amount of $225 in the absence of appropriate documentation from the State.

We reject Mr. Ingraham’s first and second arguments for the reasons discussed below. We grant relief in part to Mr. Ingraham with respect to his third argu-ment, vacate his sentences, and remand for resentencing after a proper Faretta inquiry. Because we are vacating Mr. Ingraham’s sentences, his fourth argument is moot.

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I. THE FACTS

In the early morning hours of February 20, 2005, a citizen informant was working late at his real estate office in Palm Harbor, Florida, when he heard a loud banging noise coming from a nearby automotive business. The informant went outside to investigate and saw a man swinging “a sledge hammer or something like that” at a beverage machine outside the automotive business. A brown panel van was parked near the man. The informant immediately returned to his office and called 911. While talking to the dispatcher, the informant continued to watch as events unfolded outside. When a Pinellas County Sheriff’s patrol car approached the scene, the man attacking the beverage machine jumped into the passenger seat of the van. The driver, a woman, immediately pulled away and began travelling south on U.S. Highway 19.

Pinellas County deputies stopped the van and had the occupants, Mr. Ingraham and the driver, get out of the van. Mr. Ingraham was dressed in combat fatigues and boots. Some of the keys on the key ring he carried were of the type commonly used to open vending machines. The deputies found numerous tools in the van, including two crowbars. One of the crowbars showed signs of recent use. The deputies also found a lock beneath the front passenger seat of the van that was similar to locks used on vending machines. Notably, one of the items the deputies found in the van was a money bag.

Mr. Ingraham admitted to the deputies that he had come from the location of the automotive business. At the scene, the deputies inspected the vending machine and found that it had sustained damage of the sort consistent with an attempt to break

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into it or pry it open. The damage to the machine appeared to be recent; there were still pieces of the machine on the ground. In addition, the lock for the machine was missing.

A pat-down search of Mr. Ingraham revealed that he was carrying a set of handcuffs in a case. One of the deputies asked Mr. Ingraham about the location of the key to the handcuffs. Mr. Ingraham replied that he had left the key at home. After Mr. Ingraham was handcuffed and placed in the back of one of the patrol cars, the deputies observed him “squirming” and “fidgeting.” Mr. Ingraham’s behavior aroused the deputies’ suspicions, and they removed him from the patrol car. A search of the back compartment of the patrol car revealed a handcuff key beneath the seat cushion. The deputy responsible for that patrol car testified that he had checked the vehicle the day before and had pulled the seat out to look beneath it. Since checking the vehicle the day before, no one but Mr. Ingraham had been in the back seat.

Mr. Ingraham represented himself at trial with the assistance of standby counsel.⁴ Although he did not take the stand in his own defense, Mr. Ingraham played an active role in the trial. He participated in jury selection, cross-examined the State’s witnesses, called three defense witnesses, and made a brief closing argument to the jury.

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The jury returned verdicts finding Mr. Ingraham guilty as charged on both counts of the information. After the jury returned its verdicts, the State presented proof that Mr. Ingraham had a prior conviction for vending machine theft.

II. THE DEFECT IN THE INFORMATION

Section 877.08 defines offenses relating to coin-operated vending machines and parking meters. Section 877.08 provides, in pertinent part, as follows:

(2) Whoever maliciously or mischievously molests, opens, breaks, injures, damages, or inserts any part of her or his body or any instrument into any coin-operated vending machine or parking meter of another, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(3) Whoever molests, opens, breaks, injures, damages, or inserts any part of her or his body or any instrument into any coin-operated vending machine or parking meter of another with intent to commit larceny is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(4) Whoever violates the provisions of subsection (3) a second time, and is convicted of such second separate offense, either at the same term or a subsequent term of court, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added.) Thus the offense of vending machine tampering or damaging under section 877.08(2) does not require proof of intent to commit larceny. This offense is categorized as a second-degree misdemeanor. On the other hand, the offense of vending machine theft under section 877.08(3) does require proof of intent to commit larceny. Vending machine theft is also defined as a second-degree misdemeanor. However, in accordance with section 877.08(4), a second offense of vending machine theft constitutes a felony of the third degree.

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In this case, count two of the information charged that on February 20, 2005, Mr. Ingraham

did maliciously or mischievously molest, open, break, injure or damage a coin-operated vending machine, the property of that certain business entity known as Ace Auto Repair, the said KENNETH L. INGRAHAM having been previously convicted of molestation of a coin machine on April 28, 1994; contrary to Chapter 877.08(4), Florida Statutes, and against the peace and dignity of the State of Florida.

The caption of the information designated the crime charged in count two as “MOLESTATION OF A COIN MACHINE, 3° F.” Thus the State apparently intended to charge Mr. Ingraham with the crime of felony vending machine theft under section 877.08(3) and (4) but omitted to allege the required element of intent to commit larceny. However, Mr. Ingraham failed to move to dismiss count two of the information in the trial court. He raises the sufficiency of the information to charge the crime of felony vending machine theft for the first time on appeal.

In assessing Mr. Ingraham’s argument about the sufficiency of count two of the information to charge vending machine theft, we must address the distinction between an information that is fundamentally defective and one that is merely incomplete or imprecise.

There is a difference between an information that completely fails to charge a crime and one where the charging allegations are incomplete or imprecise. The former is fundamentally defective. However, where the information is merely imperfect or imprecise, the failure to timely file a motion to dismiss under Rule 3.190(c) waives the defect and it cannot be raised for the first time on appeal. The test to determine if an information is fatally defective is whether there is a total omission of an essential element of the crime, or whether the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or

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expose him after conviction or acquittal to the substantial danger of a new prosecution for the same offense.

Jones v. State, 415 So. 2d 852, 853 (Fla. 5th DCA 1982) (citations omitted); see also State v. Wimberly, 459 So. 2d 456, 458-59 (Fla. 5th DCA 1984) (quoting Jones for the foregoing proposition). Having this distinction in mind, we turn to an examination of count two of the information in this case.

As noted above, the information reflects that the State charged Mr. Ingraham with a third-degree felony in accordance with section 877.08(4), which requires two convictions under section 877.08(3) to prove the felony offense. A second or successive conviction for vending machine tampering or damaging under section 877.08(2) is never a felony, and thus Mr. Ingraham was on notice that the State sought to establish his violation of section 877.08(3) to meet the prerequisite for conviction under section 877.08(4).

Moreover, count two of the information recites the appropriate statute, section 877.08(4), alleged to be violated. Subsection (3)—which is incorporated into subsection (4) by reference—clearly includes the omitted words, “with intent to commit larceny,” and the information’s allegation that Mr. Ingraham acted “maliciously or mischievously” can be disregarded as mere surplusage. Under the circumstances, the omission of the required element of intent to commit larceny from count two of the information did not prejudice Mr. Ingraham in his defense. See Jones, 415 So. 2d at 853 (“If the information recites the appropriate statute alleged to be violated, and if the statute clearly includes the omitted words, it cannot be said that the imperfection of the information prejudiced the defendant in his defense.”). Thus, because the information

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was not fundamentally defective and because Mr. Ingraham failed to move to dismiss count two, it follows that Mr. Ingraham is not entitled to relief on his first argument.

III. THE OMISSION TO CHARGE THE JURY ON AN ELEMENT OF THE CRIME

When the trial court instructed the jury, it mistakenly read the standard jury instruction for vending machine tampering or damaging under section 877.08(2) instead of the instruction for vending machine theft under section 877.08(3). Thus the jury was not instructed on the element of intent to commit larceny. However, Mr. Ingraham did not object to the defective jury instruction in the trial court. On appeal, Mr. Ingraham argues that the trial court’s failure to instruct the jury on the required element of intent to commit larceny constituted fundamental error.

With regard to jury instructions, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” State v. Delva, 575 So. 2d 643, 645 (Fla. 1991) (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982)). Accordingly, the failure to instruct the jury on an element of the crime is fundamental only when that particular element is disputed at trial. Reed v. State, 837 So. 2d 366, 369 (Fla. 2002). “Where an element of the crime is not accurately defined but is undisputed at trial, `the error is not fundamental error.’” Barrientos v. State, 1 So. 3d 1209, 1216 (Fla. 2d DCA 2009) (quoting Reed, 837 So. 2d at 369). Thus, for an error in instructing the jury to reach the level of fundamental error, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Delva, 575 So. 2d at 644-45 (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)).

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Mr. Ingraham’s conduct evidenced a methodical and businesslike approach to the conduct in which he was engaged before his flight and subsequent arrest. Mr. Ingraham acted at an hour when he was unlikely to be observed or attract the attention of others. His attire of combat fatigues and boots was appropriate for someone who intended to work with tools and machinery rather than to engage in casual activities. The presence of a driver improved Mr. Ingraham’s chances for a speedy getaway if detected and provided him with a lookout while he was engaged in his work. Mr. Ingraham had keys of the type that could be used to open vending machines. His van carried an array of tools, including two crowbars. The money bag found in the van could be used to hold coins taken from vending machines. Taking these facts into account, the State introduced ample evidence from which the jury could have reasonably concluded that Mr. Ingraham had the intent to commit larceny and was not merely engaged in malicious mischief.

In addition, the element of intent to commit larceny was not a disputed issue at Mr. Ingraham’s trial. With respect to the vending machine theft charge, the only disputed element at trial was the identity of Mr. Ingraham as the perpetrator. The citizen informant did not identify Mr. Ingraham at trial as the man whom he had seen attacking the beverage machine. In his closing argument, Mr. Ingraham contended only that the State had not proven his identity as the perpetrator beyond a reasonable doubt. He did not raise the issue of his intent. In the absence of any dispute at trial concerning the element of intent, Mr. Ingraham has failed to demonstrate that the State could not have obtained his conviction for vending machine theft but for the defect in the jury

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instructions. Accordingly, the error in instructing the jury on the elements of vending machine theft does not rise to the level of fundamental error.

IV. THE NELSON AND FARETTA ISSUES

Mr. Ingraham also argues that the trial court committed error by failing to conduct adequate Nelson and Faretta inquiries after Mr. Ingraham expressed dis-satisfaction with his court-appointed counsel and requested to represent himself. After a thorough review of the record, we conclude that the trial court gave Mr. Ingraham multiple opportunities to articulate the reasons for his dissatisfaction with court-appointed counsel.⁵ Despite these opportunities, Mr. Ingraham never articulated a reason which would have warranted discharging his court-appointed counsel and appointing substitute counsel. Thus the trial court complied with its obligations under Nelson and properly denied Mr. Ingraham’s requests to replace his court-appointed counsel with substitute counsel. See Maxwell v. State, 892 So. 2d 1100, 1102 (Fla. 2d DCA 2004) (“If the reasons for the request [to discharge counsel] do not indicate ineffective assistance of counsel, then no further inquiry is required. If no further inquiry is required, or if after further inquiry there is no reasonable cause to believe that court-appointed counsel is not rendering effective assistance, and the defendant persists in a desire to discharge counsel, then the court must inform the defendant that he is not entitled to a court-appointed substitute counsel and that he would be exercising his right to represent himself.” (citations omitted)).

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We also conclude that the trial court adequately informed Mr. Ingraham of the disadvantages of representing himself.⁶ The record demonstrates that Mr. Ingraham knowingly and voluntarily waived his right to be represented by counsel at his trial. See Potts v. State, 718 So. 2d 757, 759 (Fla. 1998) (“[O]nce a court determines that a competent defendant of his or her own free will has `knowingly and intelligently’ waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented.” (quoting State v. Bowen, 698 So. 2d 248, 251 (Fla. 1997))); Rogers v. Singletary , 698 So. 2d 1178, 1180 (Fla. 1996) (“Faretta requires that once a defendant asserts the right of self-representation, the court must conduct an inquiry to determine whether the defendant knowingly and intelligently waived the right to counsel.”). The trial court also appointed standby counsel to assist Mr. Ingraham at his trial, and Mr. Ingraham availed himself of standby counsel’s advice during the trial.

However, the trial court erred by failing to renew its offer of counsel to Mr. Ingraham at his sentencing proceeding. Florida Rule of Criminal Procedure 3.111(d)(5) provides that “[i]f a waiver [of counsel] is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” “Sentencing is a critical stage of a criminal proceeding, and a trial court must renew the offer of counsel even if the defendant has previously waived counsel.” Beard v. State, 751 So. 2d 61, 62 (Fla. 2d DCA 1999). Accordingly, we must vacate Mr. Ingraham’s sentences and

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remand for resentencing after a proper Faretta inquiry. Beard, 751 So. 2d at 62; Descault v. State, 20 So. 3d 990, 991 (Fla. 1st DCA 2009); Travis v. State, 969 So. 2d 532, 533 (Fla. 1st DCA 2007).

V. INVESTIGATIVE COSTS

Mr. Ingraham argues that the $225 fee imposed on him for “investigative costs” under section 938.27(1), Florida Statutes (2004), should be struck because the State failed to provide any documentation for these costs.⁷ This is a moot point because, as discussed above, the sentences imposed on Mr. Ingraham must be vacated. If the State seeks to reimpose these costs on remand, it must comply with the applicable statute.

VI. CONCLUSION

Accordingly, we affirm Mr. Ingraham’s judgments for carrying a concealed handcuff key and for vending machine theft. We vacate the sentences imposed on him for these offenses, and we remand for resentencing after a proper Faretta inquiry.

Judgments affirmed, sentences vacated, and case remanded.

KELLY, J., and GALLEN, THOMAS M., ASSOCIATE SENIOR JUDGE, Concur.

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

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Eddie Brown, Petitioner,
v.
The State of Florida, Respondent.

Case No. 3D09-86.

District Court of Appeal of Florida, Third District.

Opinion filed April 28, 2010.

A Case of Original Jurisdiction — Prohibition. Lower Tribunal No. 08-3961.

Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for petitioner.

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

Before WELLS, SHEPHERD, and LAGOA, JJ.

LAGOA, J.

The Petitioner, Eddie Brown (“Brown”), seeks the issuance of a writ of prohibition and an order discharging him in criminal case number F08-3961. For the following reasons, we deny Brown’s petition for a writ of prohibition.

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I. FACTUAL AND PROCEDURAL HISTORY

On January 31, 2008, Brown was arrested for an alleged sale of cocaine. On February 21, 2008, the State of Florida announced a “no action” on the case and Brown was discharged. On May 5, 2008, the State filed a new information charging Brown with the same sale of cocaine, and the trial court issued a warrant for Brown’s arrest. Brown was not re-arrested, pursuant to the May 5^th warrant, until December 4, 2008. On December 9, 2008, counsel for Brown filed a motion for final discharge under the State’s procedural speedy trial rule, arguing that Brown was entitled to final discharge, without application of the rule’s 15-day window or recapture period, because the State did not re-arrest or otherwise notify Brown that charges had been filed against him until after the 175-day speedy trial period had expired.

II. APPLICATION OF RULE 3.191

Florida Rule of Criminal Procedure 3.191 sets forth the procedural speedy trial rule. Rule 3.191′s time limit, however, is not a constitutional one. See State v. Naveira, 873 So. 2d 300, 308 (Fla. 2004); State v. Bivona, 496 So. 2d 130, 133 (Fla. 1986) (“Florida’s speedy trial rule is a procedural protection and, except for the right to due process under the rule, does not reach constitutional dimension.”). Indeed, a defendant who waives rule3.191′s time limits still retains the constitutional right to a speedy trial, which is measured in terms of reasonableness

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and prejudice, not number of days since arrest.¹ Here, Brown has not alleged a constitutional speedy-trial violation.

On appeal, Brown asserts that he must be automatically discharged, and need not file a Notice of Expiration of the speedy trial period. Indeed, during oral argument, counsel for Brown argued that if the State filed its information on the 175^th day following Brown’s arrest, he would be entitled to an automatic discharge on the 176^th day if a trial had not yet commenced. Brown misconstrues the time limits set forth in rule 3.191.

Rule 3.191 requires the State to try a defendant on short notice if the defendant voluntarily invokes this procedure. In Naveira, 873 So. 2d at 305-06, the Supreme Court set forth the speedy trial rule’s requirements:

Rule 3.191(a) provides that a person charged with a crime by indictment or information “shall be brought to trial . . . within 175 days if the crime charged is a felony.”

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The time periods established by rule 3.191(a) commence when the person is taken into custody as defined under subdivision (d). Subdivision (d) provides that for purposes of the rule, a person is taken into custody “(1) when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged.”

Although the rule requires the State to bring the defendant to trial within 175 days, the remedy for a violation (assuming the defendant is charged within the speedy trial period) is not an automatic discharge. Rather, when the deadline expires, a defendant may invoke the recapture provisions of rule 3.191(p). Rule 3.191(p)(2) provides that “[a]t any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled `Notice of Expiration of Speedy Trial Time,’ and serve a copy on the prosecuting authority.” The filing of such a notice invokes two deadlines. First, rule 3.191(p)(3) provides that no later than five days from the date of the filing of the notice, the trial court shall hold a hearing on the notice. The rule further provides that the defendant be brought to trial within ten days unless one of the reasons set forth in subdivision (j) exists. Only when the defendant is not brought to trial within ten days and none of the reasons set forth in subdivision (j) exists may the defendant be discharged. Fla. R. Crim. P. 3.191(p)(3). In fact, the rule emphasizes that “[n]o remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).” Fla. R. Crim. P. 3.191(p)(1).

* * * *[W]hen the 175-day speedy trial period expires, the defendant is not automatically entitled to a discharge. Rather, the defendant may then invoke the rule by filing a notice of expiration of the speedy trial time. At that point, the court must hold a hearing within five days and then schedule a trial within ten days. If a trial is not held during that period, the defendant must be discharged unless one of the circumstances in subdivision

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(j) applies. One of those circumstances is the defendant’s unavailability. Unavailability includes circumstances where either the defendant or defense counsel is not ready for trial on the date it is scheduled.

(emphasis added). In State v. Nelson, 26 So. 3d 570 (Fla. 2010), the Supreme Court reaffirmed the timetable set forth in Naveira.

Brown does not dispute that he was re-charged within the 175-day speedy trial period. As such, upon his re-arrest, Brown’s remedy for the expiration of the rule’s speedy trial period was to file a Notice of Expiration and thereby trigger the timetable described in Naveira, i.e., a trial within 15 days. This is consistent with the rule’s intent to secure a speedy trial, not to ensure a speedy discharge. See Nelson, 26 So. 3d at 574, 576 (“When a defendant is charged within the speedy trial period, the remedy for a violation of the rule is not an automatic discharge. Rather, the remedy for the State’s failure to try a defendant within the specified time is provided for in Florida Rule of Procedure 3.191(p). . . . [T]he recapture period illustrates the principle that a defendant has a right to speedy trial, not a right to speedy discharge without trial.”). Brown, however, chose not to file a “Notice of Expiration of Speedy Trial Time,” and, during oral argument, asserted that he was not required to file the notice because the 175th day had passed since his initial arrest without a trial. We find Brown’s argument without merit.

Under rule 3.191, a criminal defendant does not have a right to a trial within a certain number of days after arrest. The only demand a defendant can make upon

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the State (other than to file a demand pursuant to rule 3.191(b)), is to compel the State to bring him to trial within 15 days after he files a Notice of Expiration. The Notice of Expiration, however, must be filed after the 175-day speedy trial period runs. “This pleading invokes the defendant’s speedy trial rights and triggers the recapture window, which is an additional ten-day period for the State to bring the defendant to trial after the default speedy trial period expires.” Nelson, 26 So. 3d at 574.

Prior to 1984, criminal defendants had an explicit right to be tried within a certain number of days (180 days for a felony), and “if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime.” See Fla. R. Crim. P. 3.191(a)(1) (1983). Accordingly, if Brown’s case were governed by the old rule, he could assert that he had a “right” to be tried within a certain number of days from the date of arrest or be automatically discharged. The rule, however, was amended in 1984 and again in 1992.

In 1984, the Florida Supreme Court amended rule 3.191 to add the recapture provision. See Fla. Bar Re: Amendment to Rules-Criminal Procedure, 462 So. 2d 386 (Fla. 1984). Pursuant to the 1984 amendment, a defendant could move for discharge when the speedy-trial period (now 175 days for felony charges) expired, but could not be discharged unless the State failed to try the defendant within the 15-day recapture period.

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In 1992, the Court amended rule 3.191 to its current form prohibiting a defendant from even filing a motion for discharge until after he or she has filed a Notice of Expiration of the speedy-trial period and has not been tried within the recapture period. See In re Amendments to Florida Rules of Criminal Procedure, 606 So. 2d 227 (Fla. 1992).

Under the current rule, an individual charged with a felony no longer has a free-standing right to a trial within a certain number of days after arrest. The only right that a defendant charged with a felony possesses under rule 3.191 is to require the State to try him or her within 15 days of filing and serving the State with a Notice of Expiration (assuming, of course, that 175 days has passed since arrest). Because the speedy-trial rule is no longer self-executing, a defendant must take the affirmative step of filing a Notice of Expiration. See Nelson, 26 So. 3d at 574 (“Although all defendants are entitled to the benefit of the default rule, the rule is not self-executing and requires a defendant to take affirmative action to avail him-or herself of the remedies afforded under the rule based on the State’s failure to comply with the time limitations.”); State v. Gibson, 783 So. 2d 1155, 1158 (Fla. 5th DCA 2001) (“The provisions of rule 3.191 make it evident that the rule is not self executing: it requires the defendant to take certain steps to trigger application of rule 3.191(p)(3) which will either ensure a speedy trial or a discharge from the alleged crime.”); State v. Robinson, 744 So. 2d 1151, 1153 (Fla. 1st DCA 1999).

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Here, the State filed a timely information. Rather than filing a Notice of Expiration, as required by the rule, Brown filed a notice for automatic discharge.²

Because the State charged Brown within the 175-day speedy trial period from his initial arrest date, we find that Brown was not entitled to an automatic discharge. Rather, Brown was entitled to file a Notice of Expiration — a right which he declined to exercise. Accordingly, for the reasons stated, we deny the writ.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

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Courtesy of David Edelstein

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MICHAEL ANDREW NICHOLSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-1262.

District Court of Appeal of Florida, First District.

Opinion filed April 27, 2010.

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

Nancy A. Daniels, Public Defender; and Alice B. Copek, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General; Michael T. Kennett, Assistant Attorney General, Tallahassee; and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

KAHN, J.

Michael Andrew Nicholson (appellant) challenges his convictions for trafficking in illegal drugs (hydrocodone) in an amount 14 grams or more, but less

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than 28 grams (Count One); possession of a controlled substance (diazepam and cocaine in Counts Two and Three, respectively); and possession of drug paraphernalia (Count Four). Appellant contends the trial court erred by denying his motion for judgment of acquittal as to Counts One, Three, and Four; by giving misleading, confusing “and/or” jury instructions; and by imposing judgment and sentence on Count Two after the State nolle prossed it. We affirm the judgment and sentence for Counts Three and Four, vacate the judgment and sentence for Count Two, reverse the judgment and sentence for Count One with instructions to discharge appellant on that count, and remand for the trial court to enter a corrected judgment.

FACTS AND PROCEDURAL BACKGROUND

Two deputies responded to a 911 call reporting a possible armed burglary at a small mobile home familiar to them from previous visits. Appellant and his brother, Daniel Aaron Nicholson, were the only persons there. The brothers invited the deputies to enter the mobile home and explained they had been sitting on the couch with their girlfriends when they heard unusual noises and saw four or five armed men inside the trailer. The brothers asked the deputies to search the premises to ensure no intruders remained. Neither deputy found any evidence of a forced entry, an attempted break-in, or intruders. The deputies described the brothers as scared, confused, and intoxicated or high.

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While searching the master bedroom, Deputy Goodwin found a bottle of prescription pills in the name of Preston W. Thomas, who the deputy knew lived at the residence but was not present. As the deputy set the pill bottle on the living room coffee table, he observed what looked like a crack cocaine “rock” clearly visible atop a C.D. case, as well as several plastic baggies with torn or tied-up corners and a white, powdery residue, which subsequent lab analysis identified as cocaine. He also saw a small, dark zippered leather change purse on the coffee table, opened it, and found inside white pills and blue pills. A jar on the table held a baggy containing two razor “box cutter” knives, a folding “butterfly” knife, and additional baggies with apparent drug residue. The candlelight was bright enough to allow someone seated on the nearby couch to see all the items on the coffee table except the pills inside the purse. An F.D.L.E. analysis identified the white pills as 23.6 grams of hydrocodone, a controlled substance. § 893.03(2)(a)1.j., Fla. Stat. (2007). The State did not submit the blue pills, suspected diazepam, for analysis. The deputy observed appellant within a few feet of the contraband but never saw him actually touch any of it. A post-arrest search of their persons revealed no contraband on either of the brothers. Law enforcement did not submit any of the contraband to F.D.L.E. for fingerprint analysis.

The State tried appellant and his brother together on the same charges. During the trial, the State nolle prossed Count Two. At the close of the State’s

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case, the court denied appellant’s motion challenging the legal sufficiency of the State’s proof on the three remaining counts. Appellant and his brother elected not to testify, and the defense presented no witnesses. Without an objection the court read a series of jury instructions inserting “and/or” between the co-defendants’ names in the recitation of the elements of the charged offenses. The jury found appellant and his brother guilty as charged on Counts One, Three, and Four. The court adjudicated appellant guilty and sentenced him on all four counts despite the nolle prosequi of Count Two. This appeal ensued.

ANALYSIS

Appellant’s first two issues assert error in the denial of judgments of acquittal for legally insufficient evidence on Counts One, Three, and Four. We review de novo whether the evidence is legally sufficient to support the charge, considering the evidence and all reasonable inferences therefrom in a light most favorable to the State. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

Count One charged trafficking in hydrocodone, the 33 white pills found inside the change purse. § 893.135(1)(c)1.b., Fla. Stat. (2007). Certain rules of proof apply where the contraband is hidden and not in the defendant’s actual control, and the premises are jointly occupied. “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

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reasonable hypothesis of innocence.” State v. Law, 559 So. 2d 187, 188 (Fla. 1989). Without proof that appellant actually possessed the drugs and paraphernalia, the State had to rely upon constructive possession. See Robinson v. State, 936 So. 2d 1164, 1166 (Fla. 1st DCA 2006). The rules governing constructive possession are well-known. “Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance.” Hively v. State, 336 So. 2d 127, 129 (Fla. 4th DCA 1976); see Hargrove v. State, 928 So. 2d 1254, 1256 n.3 (Fla. 2d DCA 2006) (noting the 2002 enactment of section 893.101(2), Florida Statutes, eliminated the requirement to show the defendant’s knowledge of the illicit nature of the contraband to prove constructive possession of contraband, but allowed an affirmative defense of lack of knowledge of illicit nature). Because appellant did not have exclusive possession of the premises, “knowledge of the contraband’s presence and the defendant’s ability to control the same will not be inferred and must be established by independent evidence.” Duncan v. State, 986 So. 2d 653, 655 (Fla. 4th DCA 2008).

The evidence most favorable to the State demonstrated the brothers and their girlfriends were sitting on the living room couch next to the coffee table shortly before the brothers called 911. Although appellant’s mere proximity to the

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contraband could not, by itself, prove possession, his location nearby was sufficient to imply his ability to exercise dominion and control over the premises where the deputy found the contraband. See State v. Reese, 774 So. 2d 948, 949-50 (Fla. 5th DCA 2001). The key question remains, then, whether the State made a prima facie showing appellant knew of the presence of the hidden hydrocodone. A change purse is an ordinary object commonly used for lawful purposes and not exclusively or primarily associated with illicit drugs and paraphernalia. Acknowledging the leather change purse itself was in plain view, we find no record evidence “that the incriminating nature of the packaged contraband was immediately apparent,” which is “one of the requirements of `plain view’” analysis. Chappell v. State, 457 So. 2d 1133, 1134-35 (Fla. 1st DCA 1984). “The mere fact that some contraband was in plain view does not permit the inference that the defendant knew of the presence of all quantities of hidden contraband ultimately found after searching the entire residence.” Santiago v. State, 991 So. 2d 439, 442 (Fla. 2d DCA 2008); see Hill v. State, 873 So. 2d 491, 493 (Fla. 1st DCA 2004). Because the State failed to prove, through circumstantial evidence or otherwise, that appellant knew the hydrocodone was hidden in the leather change purse, we reverse the conviction for Count One and remand for appellant’s discharge on that count.

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Counts Three and Four charged possession of a controlled substance (cocaine) and drug paraphernalia, respectively. §§ 893.03(2)(a)4., 893.13(6)(a), & 893.147(1), Fla. Stat. (2007). The cocaine rock, knives, and baggies were in the open and clearly visible to anyone near the couch and coffee table. Two deputies with special training and experience in recognizing illegal drugs and paraphernalia and drug packaging and distribution testified the corners of baggies are cut or torn and used to package narcotics for sale, and cocaine users often use razor knives to cut “rocks” for smoking. This evidence supports a conclusion that these common items were drug paraphernalia, as the jury found. The presence of the cocaine and paraphernalia in plain view next to where appellant had been sitting a short time earlier satisfied the “knowledge” element. See Brown v. State, 428 So. 2d 250, 252 (Fla. 1983); Sundin v. State, 27 So. 3d 675, 677 (Fla. 2d DCA 2009); Duncan, 986 So. 2d at 655; Mitchell v. State, 958 So. 2d 496, 500 (Fla. 4th DCA 2007).

We affirm the convictions on Counts Three and Four. Finding appellant’s claim that he was a mere visitor to the trailer to be a fact issue, the trial court observed that the presence of the co-defendants alone in the residence at 1:00 A.M., coupled with the 911 call and the invitation to law enforcement to search the premises, demonstrated greater authority and control of the premises than that of a visitor and were inconsistent with appellant’s hypothesis of innocence. Where conflicting inferences concerning appellant’s relationship to the mobile home

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raised questions for the jury to resolve, the trial court did not err in allowing Counts Three and Four to go to the jury. See Seay v. State, 190 So. 702, 703 (Fla. 1939); Jean v. State, 638 So. 2d 995, 997 (Fla. 4th DCA 1994). Because appellant did not preserve the issue of the trial court’s use of the conjunctions “and/or” between the co-defendants’ names in instructing the jury on the charges, he must show fundamental error. See Garzon v. State, 939 So. 2d 278, 282-83 (Fla. 4th DCA 2006), approved, 980 So. 2d 1039, 1045 (Fla. 2008); see Moton v. State, 8 So. 3d 483, 485 (Fla. 1st DCA 2009) (stating fundamental error results where the incomplete or inaccurate instruction “pertains to a genuinely disputed issue”). In some contexts such instructions pose the risk of misleading the jury to believe it can find one co-defendant guilty based solely on the other co-defendant’s conduct satisfying the elements of the crime. See Salas v. State, 972 So. 2d 941, 950 (Fla. 5th DCA 2007). The use of such instructions, however, does not necessarily meet the very high threshold for fundamental error. In Garzon, the Florida Supreme Court stated that absent a misinstruction or failure to instruct on a disputed element of a crime, the proper test for assessing the effect of the instruction is the one set forth in the Fourth District Court’s opinion in Garzon, which analyzed the instruction “in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case to decide whether the `verdict of guilty could not have been obtained without the assistance of the alleged error.’”

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939 So. 2d at 283 (quoting State v. Delva, 575 So. 2d 643, 645 (Fla. 1991)); see Hunter v. State, 8 So. 3d 1052, 1070 (Fla. 2008). We find no support for appellant’s suggestion the Garzon contextual analysis should be limited to cases involving a “principal” theory of guilt.

Applying the Garzon contextual analysis to the co-defendants’ trial, we discern seven factors acting to bar a finding of fundamental error: 1) the same theory of prosecution applied to each co-defendant, and the jury heard precisely the same evidence relating to the brothers, who presented identical theories of defense to the same charges; 2) neither co-defendant made an individualized statement to law enforcement or testified at trial, thereby avoiding a credibility contest between appellant and his brother, and both brothers told the deputies about the alleged armed intruders; 3) no observations of any witness or other evidence implicated one, but not the other, co-defendant; 4) the State’s evidence could not have been easily reconciled with a conclusion that only one co-defendant was guilty and the other was less guilty or not guilty at all; 5) in closing argument, defense counsel repeatedly reminded the jury its verdict for one co-defendant should not influence its verdict for the other one and the jury should not assume the brothers acted together (an argument seeking, at least ostensibly, a jury pardon); 6) at the close of instructions, the court read Florida Standard Jury Instruction (Criminal) 3.12(c), which states a finding of guilty or not guilty as to one defendant must not affect the

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verdict as to the other defendant; and 7) the co-defendants’ individualized verdict forms were identical in all material respects except for their different names, and the court read appellant’s verdict form using only his name, not “and/or.” The totality of this record eliminated any danger the “and/or” instructions misled or confused the jury. See Gerds v. State, 64 So. 2d 915, 916 (Fla. 1953) (recognizing that due process entitles a defendant to have the jury correctly and intelligently instructed “on the essential and material elements of the crime charged and required to be proven by competent evidence”); Bryant v. State, 35 Fla. L. Weekly D476 (Fla. 2d DCA Feb. 26, 2010); Barrientos v. State, 1 So. 3d 1209, 1219-20 (Fla. 2d DCA 2009).

We REVERSE the conviction on Count Two. The State properly concedes that once it nolle prossed that charge, the trial court should not have sentenced appellant on that count. We AFFIRM the judgment and sentence on Counts Three and Four, REVERSE the judgment and sentence on Count One, and REMAND for the court to correct the judgment.

PADOVANO and WETHERELL, JJ., CONCUR.

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

Courtesy of David Edelstein

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EDWIN MORGES, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-5325.

District Court of Appeal of Florida, First District.

Opinion filed April 27, 2010.

An appeal from the Circuit Court for Escambia County. Terry D. Terrell, Judge.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

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

VAN NORTWICK, J.

Edwin Morges challenges his convictions for robbery, arson, and grand theft of an automobile. Because the trial court erred in denying the motion for acquittal

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as to the charge of arson, we vacate that conviction and remand for resentencing. On the remaining convictions, we affirm.

On January 25, 2008, a van was stolen from a medical supply company in Pensacola. Later that day, that van was seen to be parked behind Advance America, a same-day loan business. The officer who spotted the van stayed to observe while back-up was en route. Two men wearing hooded sweatshirts were observed exiting the van and approaching the store. Shortly thereafter, these men were seen running from the store to the van with a cash drawer. The van fled away at a high rate of speed until coming to a stop at the end of a street in a residential neighborhood. The van had been set on fire. Witnesses directed law enforcement in the direction in which the van occupants were seen fleeing on foot. With the assistance of a police dog, law enforcement approached a residence. A man, a woman and a child were outside this residence in an automobile. When police approached, a gun was observed being held by the child in the back seat of the automobile. Also observed in the vehicle was a skull cap and black jacket. The surname given by the male occupant of the vehicle — Ayala — was found to match an outstanding warrant. According to police, appellant was located in the residence. A black ski mask was found in the residence as was ten pounds of marijuana. Over $600 was found in a bundle on top of the refrigerator.

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At the conclusion of the State’s case-in-chief, appellant moved for a judgment of acquittal arguing, in part, that the State produced “no evidence that links [appellant] to the robbery or the theft of the car or the arson.” The trial court denied the motion as to all three charges.

A judgment of conviction comes to an appellate court clothed with the presumption of correctness, and a defendant’s claim of insufficiency of evidence cannot prevail where there is competent, substantial evidence to support the judgment. Donaldson v. State, 722 So. 2d 177, 182 (Fla. 1998). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Troy v. State, 948 So. 2d 635 (Fla. 2006). A trial court’s denial of a motion for a judgment of acquittal raising the sufficiency of the circumstantial evidence on the issue of identity is reviewed de novo. Fowler v. State, 987 So. 2d 111 (Fla. 1st DCA 2008). Circumstantial evidence which creates nothing more than a strong suspicion that a defendant committed the crime is not sufficient to support a conviction. Cox v. State, 555 So. 2d 352 (Fla. 1989).

As to the arson charge, the State established that the stolen van was set on fire by use of gasoline before it was abandoned. Witnesses saw two males flee from the van and run in the direction where appellant and Mr. Ayala were

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apprehended. While it is likely one of the men poured the gas about the van before fleeing, there is no evidence of record suggesting who poured the gasoline or who lit the fire. While the State notes on appeal that Mr. Ayala’s girlfriend testified that she never smelled gasoline on his person, such a fact hardly supports appellant’s conviction for arson. Accordingly, the arson conviction is vacated.

We affirm as to the remaining issues raised on appeal, and we remand for entry of a scoresheet to reflect the vacation of the arson conviction and for resentencing as to the remaining convictions.

AFFIRMED in part, REVERSED in part, and REMANDED.

CLARK and MARSTILLER, JJ., CONCUR.

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

Courtesy of David Edelstein

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