Florida Criminal Law Opinions

TERRY CARSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-5698.

District Court of Appeal of Florida, First District.

Opinion filed April 26, 2010.

An appeal from the Circuit Court for Duval County, L. P. Haddock, Judge.

Terry Carson, pro se, Appellant.

Bill McCollum, Attorney General, Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee.

THOMAS, J.

In this case, we address an important issue, to wit: May a criminal defendant who accepts the benefits of a negotiated plea bargain collaterally attack his negotiated sentence years later as “illegal” under Florida Rule of Criminal Procedure 3.800(a)?

Page 2

Our answer is no, because Appellant’s felony drug offender probationary sentence does not exceed the maximum term authorized by the legislature for the second-degree felony of battery on a pregnant woman.

We hold that Appellant’s motion is without merit on both substantive and procedural grounds. To allow Appellant to accept the benefits of a plea bargain, and then years later collaterally attack his own negotiated sentence, would seriously compromise finality, discourage the use of negotiated pleas in the trial courts, deplete judicial resources, and “discourage the state from entering into future plea bargains with other defendants.” State v. Gutierrez, 10 So. 3d 158, 159 (Fla. 3d DCA 2009).

In 2007, Appellant agreed to serve three years of drug offender probation as part of his negotiated plea to battery on a pregnant woman, a second-degree felony punishable by up to 15 years in prison. In his motion filed under Florida Rule of Criminal Procedure 3.800(a), Appellant attaches no documents regarding his plea and sentence, but asserts that on the “face of his record,” he was sentenced to one year in the county jail followed by three years of drug offender probation for his “alleged crime.” Based on Appellant’s reply to the State’s response to his motion, however, we know that Appellant pled guilty to this offense when he finally disclosed that he did in fact enter a negotiated plea.

Page 3

The trial court summarily denied Appellant’s motion filed under Florida Rule of Criminal Procedure 3.800(a), and Appellant filed a notice of appeal. This court ordered the State to respond and to show cause “why the summary denial of the appellant’s claim that his drug offender probation is illegal should not be reversed and remanded,” and cited Ackermann v. State, 962 So. 2d 407 (Fla. 1st DCA 2007) (holding that defendant may not be sentenced to drug offender probation unless he has been convicted of an enumerated chapter 893 offense or he has specifically agreed to such probation in a plea agreement).

We now conclude that our order was premature and should not have been issued, because Appellant’s motion was facially insufficient due to his failure to disclose his plea agreement with the State. It is not the duty of the State, the trial court, or this court to assist Appellant in his plea for relief under rule 3.800(a). We affirm the summary denial of Appellant’s motion based on his failure to file a facially sufficient claim.

We also reject Appellant’s claim on the merits. In the State’s response to our show cause order, it correctly cited this court’s case law holding that a person who “bargained for [an] obligation [has] thereby waived any objection to the legality of the sentence containing [a] condition of probation.” Allen v. State, 642 So. 2d 815, 816 (Fla. 1st DCA 1994). The State further cited case law holding that because a plea agreement is a contract, Appellant contracted for drug offender

Page 4

probation. See Gutierrez, 10 So. 3d at 159 (holding that trial court is without authority to mitigate sentence imposed pursuant to negotiated plea); see also State v. Simons, 22 So. 3d 734 (Fla. 1st DCA 2009) (holding that it is a settled principle of criminal procedure that courts may force the government to honor a plea agreement). As we stated in Allen, “Having accepted the benefits of his plea bargain, [Appellant] will not be relieved of his burdens under the contract.” 642 So. 2d at 816.

Once a defendant receives the very real benefit of probation in a plea agreement and then violates that probation, it is too late to consider an argument that he should not have received the probationary sentence. In our view, it is not “illegal” to allow a defendant to agree to serve a special type of probation, e.g., because of a substance abuse problem, even though the trial court could not impose such a condition on an unwilling defendant convicted at trial. Ackermann, 962 So. 2d at 408. As the State noted in its response, courts have recognized that “once a defendant has enjoyed the benefits of probation without challenging the legality of [the] sentence, the defendant is thereafter precluded from an order revoking probation.” Matthews v. State, 736 So. 2d 72, 75 (Fla. 4th DCA 1999) (quoting Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992), overruled on other grounds, State v. Powell, 703 So. 2d 444 (Fla. 1997)). In Gaskins, we stated in clear terms that a defendant who accepts the benefits of a probationary sentence will not be

Page 5

heard to claim the sentence was improper after the probationary sentence is revoked. Id. at 476.

Appellant cites Williams v. State, 500 So. 2d 501 (Fla. 1986), and Wright v. State, 743 So. 2d 103 (Fla. 1st DCA 1999), in his reply, arguing that he could not enter a plea to an unlawful sentence. These holdings are neither controlling nor persuasive. In Quarterman v. State, 527 So. 2d 1380, 1382 (Fla. 1988), the supreme court receded from its perceived holding in Williams that a court could not exceed the then-controlling sentencing guidelines based on a legitimate plea bargain. The court explained that the facts of Quarterman presented a different issue, to wit: Can the trial court depart from the sentencing guidelines based solely on the defendant’s failure to appear? Id. The court explained that any reference to departures based on plea agreements in Williams was dicta: “Since our decision in Williams, this Court has recognized that a plea bargain can constitute a valid reason for departure.” Id. Thus, what would constitute an unlawful departure sentence under the guidelines becomes a lawful sentence pursuant to a negotiated plea that is accepted by the trial court because “the conditions which Quarterman agreed to were not imposed after the plea bargain had been accepted, but were accepted as `an integral part of the bargain itself.’” Id. (citations omitted).

In Wright, this court held that a defendant who pled guilty to cocaine trafficking could not receive a sentence of 17 years’ imprisonment as an habitual

Page 6

offender. 743 So. 2d at 103. We held that section 893.135(1)(b), Florida Statutes, required that such an offense “shall be sentenced pursuant to the sentencing guidelines.” Id. We further held that Wright’s “habitual offender sentence for a violation of this section fails to comport with statutory limitations and constitutes an illegal sentence.” Id. Citing Williams, we then stated, “A trial court is not authorized to impose an illegal sentence, even pursuant to a plea agreement.” Id. This court failed to note that in Quarterman, the Florida Supreme Court receded from this proposition in Williams. Thus, our decision in Wright is not controlling on this statement of law because it directly conflicts with the contrary statement the Florida Supreme Court pronounced in Quarterman ten years earlier.

Here, the dissenting opinion states that our opinion “misstates the holding” of Quarterman because that opinion only receded from the view that a plea bargain cannot constitute a valid departure from sentencing guidelines and does not address an “illegal” sentence. We quote from the Williams decision that Quarterman receded from: “Nor are we persuaded that the defendant’s `acquiescence’ to the conditions imposed by the trial judge makes a difference. A trial court cannot impose an illegal sentence pursuant to a plea bargain.” Williams, 500 So. 2d at 503 (emphasis added). Thus, in Williams, the Florida Supreme Court held that it is an illegal sentence to impose a departure sentence pursuant to a plea bargain that requires the defendant to appear at sentencing. Id. In Quarterman, the Florida

Page 7

Supreme Court receded from this principle, stating that “the plea bargain itself serves as a clear and convincing reason for departure and [we] recede from any language in Williams to the contrary.” 527 So. 2d at 1382.

While a departure sentence challenged on direct appeal does not equate to a collateral challenge to an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a), the principle is the same, to wit: May a court lawfully impose a negotiated sentence that does not exceed the statutory maximum term, but includes terms that the court could not otherwise impose on a defendant without his acquiescence? We think that a trial court has that authority, and we think that the State and the defendant can agree to such terms. Thus, a defendant cannot later collaterally attack his own negotiated sentence.

The dissenting opinion also cites Larson v. State, 572 So. 2d 1368, 1371 (Fla. 1991), for the proposition that a defendant cannot plead to an “illegal sentence.” However, even the cited proposition in Larson notes that the Florida Supreme Court’s statement refers to a sentence that would “exceed the penalties established by law.” Id. The dissenting opinion here does not apparently disagree with this court’s recognition, long after the Larson decision, that felony drug offender probation can be imposed on a defendant who would otherwise not qualify for such a sentence, if the defendant asks to receive that probationary sentence. Ackermann, 962 So. 2d at 408. In our view, such a sentence is not an

Page 8

“illegal sentence” that exceeds the statutory maximum, such that it can be collaterally attacked at any time under Florida Rule of Criminal Procedure 3.800(a). Furthermore, in Larson, the issue was whether the contemporaneous objection rule applied at sentencing where a trial court imposed an illegal condition. Larson, 572 So. 2d at 1370. Because the court found the condition was not unlawful, it found the rule applied. Id. This holding does not establish a rule that a criminal defendant can agree to receive felony drug offender probation as part of a negotiated sentence and then collaterally attack such a sentence at any time.

This case raises the issue of whether a criminal defendant can ask for and receive a type of probation that assists those with substance abuse problems and then, years later, collaterally attack his own negotiated sentence, draining limited public resources. To make matters worse, Appellant was not even honest and forthcoming about his own negotiated sentence, forcing the State and this court to expend considerable resources to review his meritless claim and discover the truth. The public does not have unlimited financial wealth to countenance such unprincipled exploitation of its judiciary, which deprives more deserving criminal defendants and other litigants of the proper review that they deserve under the law.

We AFFIRM the summary denial of Appellant’s motion filed under Florida Rule of Criminal Procedure 3.800(a).

Page 9

KAHN, J., CONCURS; DAVIS, J., DISSENTS WITH WRITTEN OPINION.

Page 10

DAVIS, J. dissenting.

I respectfully dissent. The issue in this case is not whether a defendant may enjoy the benefits of probation and later complain about its burdens. The issue before this Court is whether there is sufficient evidence in the record on appeal to determine whether the trial court properly denied Appellant’s claim of an illegal sentence.

Pursuant to Florida Rule of Criminal Procedure 3.800(a), Appellant filed a motion alleging that the imposition of drug offender probation was improper because he was not convicted of the purchase or possession of a controlled substance. The trial court summarily denied Appellant’s motion without making any factual findings or legal conclusions and without attaching any portions of the record conclusively refuting Appellant’s claim. Contrary to the assertion in the majority opinion, Appellant asserted a facially sufficient claim that his sentence was illegal.

“In order to allege a facially sufficient rule 3.800(a) motion, the appellant must allege: (1) he is serving an illegal sentence; (2) the error appears on the face of the record; and (3) how and where the record demonstrates an entitlement to relief.” Lauramore v. State, 949 So. 2d 307, 308 (Fla. 1st DCA 2007); see also Teague v. State, 26 So. 3d 616, 617 (Fla. 1st DCA 2009). Appellant alleged that his drug offender probation was illegal, that the illegality of the sentence was

Page 11

apparent from the face of the record, and that his conviction for aggravated battery showed that he did not qualify for drug offender probation. Thus, Appellant’s claim is facially sufficient. Beals v. State, 14 So. 3d 286, 287 (Fla. 4th DCA 2009) (holding that the issue of whether a trial court has the authority to impose drug offender probation is cognizable in a rule 3.800(a) motion). However, it is impossible to determine from the record on appeal whether Appellant’s claim is meritorious.

The only items included in the record on appeal were Appellant’s two-page motion for relief, the lower court’s order denying the motion without any explanation, and the notice of appeal. This Court has long held that the trial court is required to attach portions of the record conclusively refuting facially sufficient claims for relief in rule 3.800(a) motions. Webb v. State, 642 So. 2d 782, 783 (Fla. 1st DCA 1994). The lack of any record attachments in this case is the sole reason this Court was forced to “expend considerable resources” to review Appellant’s motion. Without the plea colloquy or a written plea agreement, it is impossible to determine whether Appellant’s claim has merit. Thus, as conceded by the State, this case should be remanded back to the trial court with directions to attach portions of the record to conclusively refute Appellant’s claim or for resentencing.

Contrary to the majority’s assertion, if the court imposed statutory drug offender probation, even pursuant to a negotiated plea, then Appellant’s claim

Page 12

would have merit. Epperson v. State, 955 So. 2d 642, 643 (Fla. 4th DCA 2007). A trial court may order a probationer to complete a drug treatment program as a special condition of ordinary probation, as a condition of drug offender probation pursuant to sections 948.034 and 948.20, Florida Statutes, or as part of a treatment based drug court program pursuant to section 397.334, Florida Statutes. Lawson v. State, 969 So. 2d 222, 231 (Fla. 2007). Appellant alleged that he was sentenced to statutory drug offender probation which, if true, would be an illegal sentence because he was not convicted of one of the enumerated chapter 893 offenses. §§ 948.034(1), 948.20, Fla. Stat. (2006); Ellis v. State, 816 So. 2d 759, 762 (Fla. 4th DCA 2002). While Appellant could have agreed to special conditions of probation similar to those imposed in drug offender probation, the trial court did not attach relevant portions of the record to establish that this was the case. See Beals, 14 So. 3d at 287 (reversing the imposition of drug offender probation, but remanding with leave for the trial court to substitute, for the drug offender probation, a term of probation with or without special conditions related to substance abuse); Andrews v. State, 988 So. 2d 158 (Fla. 4th DCA 2008) (same).

The majority also misstates the holding and application of the supreme court’s decision in Quarterman v. State, 527 So. 2d 1380 (Fla. 1988), when it asserts that the supreme court has receded from its holding that a trial court is not authorized to impose an illegal sentence pursuant to a plea agreement. In

Page 13

Quarterman, the defendant agreed to appear for sentencing at a later date as a part of his plea agreement because he wanted to visit a sister who was hospitalized. Id. at 1381. When the defendant failed to appear for sentencing, the trial court imposed a sentence greater than the agreed upon sentence and in excess of the recommended guidelines range. Id. The trial court provided multiple reasons for departure, including the defendant’s failure to appear for sentencing. Id. The supreme court held that the plea bargain was a clear and convincing reason for a departure sentence because the defendant’s presence at a later date was an integral part of the agreement. Id. at 1382. The supreme court distinguished the facts in Quarterman from its previous decision in Williams v. State, 500 So. 2d 501 (Fla. 1986), by stating that it perceived the issue in Williams to be whether it was permissible to deviate from the guidelines based on the defendant’s failure to appear, which was a crime for which the defendant was not convicted. Id. Thus, the court clarified that under the circumstances in Quarterman, the plea bargain itself served as a clear and convincing reason for departure and the court receded from any language in Williams contrary to that proposition. Id.

The statement in Williams that a trial court cannot impose an illegal sentence pursuant to a plea bargain is not contrary to the holding in Quarterman because a departure sentence is not necessarily an illegal sentence. White v. State, 816 So. 2d 820, 821 (Fla. 5th DCA 2002) (holding that a departure sentence is not

Page 14

an illegal sentence as long as the sentence does not exceed the statutory guidelines). Moreover, the definition of an illegal sentence is not limited to when the sentence exceeds the statutory maximum. The supreme court has defined an illegal sentence as “one that imposes a punishment or penalty that no judge under the entire body of sentencing statutes and laws could impose under any set of factual circumstances.” Williams v. State, 957 So. 2d 600, 602 (Fla. 2007). Thus, when the supreme court receded from its holding in Williams that implied that a plea bargain could not be a valid reason for a departure sentence, it did not recede from its previous holding that a defendant cannot plead to an illegal sentence.

The majority also overlooks the fact that in a more recent opinion the supreme court reaffirmed its statement in Williams that a defendant cannot plead to an illegal sentence. Larson v. State, 572 So. 2d 1368, 1371 (Fla. 1991) (“A defendant cannot confer on others a right to do something the law does not permit. For example, a defendant cannot by agreement confer on a judge authority to exceed the penalties established by law.”). Additionally, the supreme court has favorably cited to Williams to support its holding that a trial court cannot impose an illegal sentence pursuant to a plea bargain. Bates v. State, 750 So. 2d 6, 11 (Fla. 1999). The entry of a plea agreement does waive some of a defendant’s constitutional rights; however, it does not waive a defendant’s right to challenge an illegal sentence. Amendments to Florida Rules of Appellate Procedure, 685 So. 2d

Page 15

773 (Fla. 1996) (holding that one of the issues that may be raised on appeal after a defendant pleads guilty or no contest is the illegality of a sentence). Additionally, the majority also disregards numerous cases from this Court and all of the other districts holding that a plea bargain cannot justify the imposition of an illegal sentence. See generally Darling v. State, 886 So. 2d 417, 418 (Fla. 1st DCA 2004) (holding that a defendant cannot plead to an illegal sentence); Bruno v. State, 837 So. 2d 521, 523 (Fla. 1st DCA 2003) (same); Wright v. State, 743 So. 2d 103, 103 (Fla. 1st DCA 1999) (same); Taylor v. State, 899 So. 2d 1191, 1192 (Fla. 1st DCA 2005) (same); Leavitt v. State, 810 So. 2d 1032, 1033 (Fla. 1st DCA 2002) (same); Kinney v. State, 808 So. 2d 1285, 1285 (Fla. 1st DCA 2002) (same); Debord v. State, 802 So. 2d 528 (Fla. 1st DCA 2001) (same); Blanchette v. State, 620 So. 2d 258 (Fla. 1st DCA 1993) (same); Hebert v. State, 600 So. 2d 1293, 1294 (Fla. 1st DCA 1992) (same); see also Walters v. State, 812 So. 2d 457, 458 (Fla. 5th DCA 2002) (holding that a defendant may not plead to an illegal sentence); Hollybrook v. State, 795 So. 2d 1012, 1013 (Fla. 2d DCA 2001) (same); Gifford v. State, 744 So. 2d 1046, 1048 (Fla. 4th DCA 1999) (same); Brister v. State, 622 So. 2d 552, 553 (Fla. 3d DCA 1993) (same).

In this case, it is unclear from the record whether Appellant’s sentence is illegal. I, therefore, would reverse the trial court’s summary denial of Appellant’s

Page 16

motion and remand for the attachment of portions of the record conclusively refuting Appellant’s allegations or for resentencing.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

MICHAEL A. ROGERS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-4234.

District Court of Appeal of Florida, First District.

Opinion filed April 26, 2010.

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

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

Bill McCollum, Attorney General; and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Michael A. Rogers (appellant) appeals his conviction of one count of capital sexual battery on D.B., a child under 12 years of age, by a defendant age 18 or older, in violation of section 794.011(2)(a), Florida Statutes (2004). Appellant also challenges the trial court’s orders designating him a “sexual predator” and imposing restitution. Because the record demonstrates neither a misapplication of

Page 2

the law nor an abuse of discretion by the trial court in ruling on evidentiary matters, we affirm the conviction without further discussion. We also affirm the order designating appellant a sexual predator. We reverse the restitution order on jurisdictional grounds and remand that issue.

After adjudicating appellant guilty on August 14, 2008, the trial court sentenced appellant to life in prison without eligibility for parole. At the State’s request, the court orally designated appellant a “sexual predator” under section 775.21, Florida Statutes (2008), without a contemporaneous objection. Upon the State’s further request, the court orally ordered restitution, reserving jurisdiction to determine the appropriate payees and amounts once the State presented specific evidence. Appellant appealed on August 27, 2008. On September 3, 2008, the trial court entered written orders finding appellant’s conviction was for a qualifying offense, designating appellant a sexual predator, and imposing $468.00 in restitution. On May 19, 2009, appellant filed a rule 3.800(b)(2), Florida Rules of Criminal Procedure, motion to strike the sexual predator classification order and restitution order on the ground his filing the notice of appeal divested the trial court of jurisdiction over these matters before the issuance of the written orders. The court denied the motion.

We review de novo the issue of law whether the trial court had jurisdiction, after appellant filed his notice of appeal, to issue written orders memorializing its

Page 3

prior oral pronouncements on appellant’s designation as a sexual predator and restitution. See Lande v. Lande, 2 So. 3d 378, 380 (Fla. 4th DCA 2008). On the matter of “sexual predator” classification, appellant does not contend he is ineligible. Indeed, his conviction of a capital felony under chapter 794, Florida Statutes (2004), mandated his designation as a sexual predator. See § 775.21(4)(a)1., Fla. Stat. He bases his challenge solely on the jurisdictional argument and on Schardt v. State, 10 So. 3d 139 (Fla. 2d DCA 2009), a materially distinguishable case in which the State conceded error in the initial designation of Schardt as a sexual predator. “The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.” § 775.21(3)(d), Fla. Stat.; Kelly v. State, 795 So. 2d 135, 138 (Fla. 5th DCA 2001). The circuit court has concurrent jurisdiction with the district court of appeal to decide a “collateral, ministerial and procedural matter” under rule 9.600(a), Florida Rules of Appellate Procedure. We conclude the trial court correctly denied appellant’s challenge to the mandatory sexual predator classification under rule 9.600(a) and Breitberg v. State, 14 So. 3d 1253 (Fla. 4th DCA 2009).

The trial court did not have the benefit of the Breitberg decision, which was issued a month after the denial of appellant’s motion to strike the designation. Even so, the trial court’s ruling is consistent with the analysis of this issue in

Page 4

Breitberg. As in appellant’s case, Breitberg made no claim he did not meet the statutory criteria for designation as a sexual predator. See id. at 1254. Instead, Breitberg sought to void his sexual predator designation because the trial court entered the order after he filed a notice of appeal from his qualifying judgment and sentence. After determining Breitberg’s record did not facially establish that his case fell within the narrow rule in Saintelien v. State, 990 So. 2d 494, 495 (Fla. 2008), allowing a rule 3.800(a) movant to challenge his sexual predator classification, the Fourth District Court directly addressed the jurisdictional challenge and concluded the filing of the notice of appeal did not divest the trial court of jurisdiction to designate Breitberg a sexual predator. See Breitberg, 14 So. 3d at 1254-55. In Kimmel v. State, 629 So. 2d 1110, 1111 (Fla. 1st DCA 1994) (order on appellee’s motion to dismiss), we acknowledged “[t]he general rule is that an appeal of an order divests the trial court of jurisdiction except for those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal.” Citing Kimmel, the court in Breitberg determined that because sexual predator classification is not “a sentence or punishment” under the “sexual predator” statute and Saintelien, the designation order would not interfere with the appellate court’s power to dispose of issues relating to the judgment and sentence. Thus, the filing of Breitberg’s, and likewise appellant’s, notice of appeal did not divest the trial court of jurisdiction to issue a designation

Page 5

order. See 14 So. 3d at 1254-55. Appellant can show no error in the denial of this part of his rule 3.800(b)(2) motion.

In challenging the trial court’s jurisdiction to enter the written restitution order after the filing of the notice of appeal, appellant properly relies on the similar facts in Pearson v. State, 686 So. 2d 721 (Fla. 2d DCA 1997). There, the court held Pearson’s notice of appeal, after the trial court reserved jurisdiction on the amount of restitution, divested the trial court of jurisdiction to enter a restitution order. Pearson observed that on remand, the trial court could conduct another hearing and re-impose restitution. See id. at 721-22; see also Horan v. State, 990 So. 2d 1264 (Fla. 1st DCA 2008) (stating the filing of the notice of appeal divested the trial court of jurisdiction to enter an order determining restitution, reversing the restitution order, and remanding with an acknowledgment the trial court could hold another restitution hearing). The State’s answer brief neither cites Pearson or Horan nor attempts to distinguish their consistent holdings. We reverse the restitution order on jurisdictional grounds, recognizing that upon remand returning jurisdiction to the lower tribunal, the court may revisit the subject of restitution and (if necessary to resolve any factual disputes involving the amount) hold a restitution hearing.

Page 6

We AFFIRM the judgment and sentence and the order designating appellant a sexual predator; we REVERSE the restitution order and REMAND the matter to the trial court.

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

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

HOUSTON WHITFIELD, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-3360.

District Court of Appeal of Florida, Fifth District.

Opinion filed April 23, 2010.

Appeal from the Circuit Court for Osceola County, Scott Polodna, Judge.

James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

Houston Whitfield ["Whitfield"] appeals his judgment and sentence for trafficking in over twenty-eight grams of cocaine. He pled nolo contendere to the charge, reserving his right to appeal the denial of his motion to suppress evidence of the cocaine seized during the search of an automobile. Whitfield contends that the cocaine was discovered in his vehicle pursuant to an illegal detention, and thus should have been suppressed. We agree and reverse.

Page 2

The evidence and testimony presented at the suppression hearing revealed that the arresting officer, Florida Highway Patrolman, James Barley ["Trooper Barley"], initiated a traffic stop for unlawful speed on the turnpike in Osceola County.¹ Whitfield was driving a rental car with his son as a passenger. They were on their way back to Georgia from the South Florida area. Upon stopping Whitfield, Trooper Barley asked Whitfield to step out of the car and asked for his driver’s license. He had Whitfield return with him to the trooper’s vehicle. Though not apparent from the video, Trooper Barley testified that Whitfield was nervous throughout the encounter. Trooper Barley said that he engaged Whitfield in idle conversation to calm him down. This consisted of a series of rapid-fire questions on a wide range of topics, beginning with, “What are you up to today?”² While he waited for dispatch to report back on the status of Whitfield’s driver’s license and warrants check, Trooper Barley asked Whitfield his occupation. Whitfield answered that he was in the commercial lawn care business. Trooper Barley asked him about the type of equipment Whitfield used in his business. Trooper Barley testified that he did not believe Whitfield owned his own business because Whitfield gave him common brand names of equipment, not brands Trooper Barley knew were used for commercial purposes.

Page 3

After checking Whitfield’s license, at approximately six to seven minutes³ into the traffic stop, Trooper Barley, for the first time, inquired about the car’s registration. He required Whitfield to remain by his police vehicle while he went up to the passenger side of Whitfield’s car and asked the son to give him the papers. As he did so, he proceeded to ask the son a series of questions similar to those he had been asking Whitfield.

When Trooper Barley’s review of the rental car documents revealed that Whitfield was not the renter of the vehicle, Whitfield told Trooper Barley that his friend, “Terry,” had rented it because Whitfield did not have a credit card. Whitfield said he went to Avis and was added as an additional driver. The rental agreement did have a page attached that listed Whitfield as an authorized driver. At approximately twelve minutes into the stop, Trooper Barley ran a check to verify the car was not reported stolen.

Fifteen minutes into the stop, Trooper Barley inquired whether Whitfield had a criminal record. Whitfield admitted to numerous past arrests. The next several minutes were then taken up with questions about which crimes he had been arrested for, which were the most serious, which were the most minor, whether any were homicides, and the like. Then, eighteen minutes into the traffic stop, Trooper Barley asked Whitfield a series of questions about whether he had any contraband, narcotics, weapons, or large sums of cash in the car. Whitfield answered “no” to all of his questions. Trooper Barley then asked Whitfield for consent to search his car. Whitfield declined, citing the delay and the rain. As a result, at 19:55 minutes into the traffic stop, Trooper Barley called for a K-9 unit.

Page 4

Immediately thereafter, although Trooper Barley had confirmed that the rental car was not stolen, he resumed examining the authorized driver documentation, expressing doubt about its authenticity because it was a carbon copy with writing on it. He suggested that “anyone” could attach an authorized driver form to a rental contract. He then informed Whitfield that he was going to verify that he was an authorized driver of the vehicle.⁴ At 24:53 minutes into the traffic stop, Trooper Barley gave dispatch the long distance number for Avis located on the rental agreement and asked them to find out whether Whitfield was an authorized driver. At 26:13, Trooper Barley can be heard on the video telling dispatch or another officer that “the guy doesn’t want me to search so I am waiting on Harold,” presumably, the K-9 unit. At 26:45 on the video, the K-9 unit is seen driving past their location on the opposite side of the turnpike.⁵

Trooper Barley gave Whitfield a completed written warning at 27:26. It was undisputed at the hearing, however, that Whitfield was still not free to leave because Trooper Barley had not yet received confirmation that Whitfield was an authorized driver of the rental car. At 27:55, Trooper Barley instructed Whitfield’s son to exit the vehicle for the canine sniff. At 28:36, dispatch informed Trooper Barley that Whitfield was an authorized driver. At 28:44 into the stop, the dog cannot be seen in the video and had not begun to search.⁶ The canine does not appear in the video until 28:57 to begin his

Page 5

sniff search. Shortly, thereafter, the canine alerted, the officers conducted a search and drugs were discovered.

The trial court rendered a written order denying Whitfield’s motion to suppress. Although the trial court found that the stop of Whitfield lasted approximately thirty minutes, because the K-9 unit arrived within a minute of the verification that Whitfield was an authorized driver, he found the delay in conducting the canine search was not unreasonable and Whitfield was not entitled to suppress the evidence.⁷ Whitfield contends on appeal that the charges against him stemmed from an unreasonably prolonged traffic stop and, therefore, the trial court erred in denying his motion to suppress.

There is no issue in the case concerning the propriety of the traffic stop. A traffic violation creates probable cause to stop the driver of a vehicle. See McNeil v. State, 656 So. 2d 1320 (Fla. 5th DCA 1995). Once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop. This investigation may include asking the driver for an operator’s license, insurance and registration. See State v. Robinson, 756 So. 2d 249 (Fla. 5th DCA 2000). Also, the officer may run a computer check to determine whether the vehicle involved in the stop has been stolen and whether the driver has any outstanding warrants. See State v. Brooks, 662 So. 2d 440, 440-41 (Fla. 5th DCA 1995) (Sharp, J., dissenting.). However, absent an articulable suspicion of criminal activity, the time an officer takes to issue a citation should last no longer than is necessary to make any required license or registration checks and to write the citation.

Page 6

Maxwell v. State, 785 So. 2d 1277 (Fla. 5th DCA 2001) (citing Cresswell v. State, 564 So. 2d 480 (Fla. 1990)); Sands v. State, 753 So. 2d 630 (Fla. 5th DCA 2000). See also Illinois v. Caballes, 543 U.S. 405, 407 (2005).

It is well established that the use of a narcotics dog to sniff a vehicle does not constitute a search and may be conducted during a consensual encounter or traffic stop. Caballes, 543 U.S. at 408-09. However, the canine search of the exterior of the vehicle must be completed within the time required to issue a citation. Eldridge v. State, 817 So. 2d 884, 887 (Fla. 5th DCA 2002). If a properly trained police dog alerts to the presence of illegal drugs during this time period, the officer will have probable cause for a vehicle search. Id.

Here, Trooper Barley stopped Whitfield’s vehicle for speeding and immediately indicated to Whitfield he was issuing him a written warning for excessive speed. Whitfield’s vehicle could be properly subjected to a canine search as long as the search was done within the time required to issue the citation, provided the time were not unreasonably prolonged. Caballes, 543 U.S. at 407. The record in this case reflects that the routine investigation had been completed within approximately twelve minutes after Whitfield’s vehicle was stopped and that the amount of time reasonably required to do the necessary license/warrant checks and issue the citation — even including the several minutes expended on verifying Whitfield’s authority to drive the car — was significantly less than the twenty-nine minutes expended.

In Sparks v. State, 842 So. 2d 876, 877 (Fla. 2d DCA 2003), the deputy had finished writing a citation for driving with a broken headlight before the canine unit arrived twenty minutes after the initial stop, and the court found an illegal detention. Similarly, in Williams v. State, 869 So. 2d 750 (Fla. 5th DCA 2004), an officer stopped

Page 7

Williams for a traffic violation, issued a citation thirty-five minutes later and then conducted a dog sweep, leading to Williams’ arrest. The court found the delay to be unreasonable, and further said that, even if the time had been reasonable, because the officer had already issued the citation before commencing the dog sniff, the detention for the sniff was illegal. See State v. Brown, 691 So. 2d 637 (Fla. 5th DCA 1997) (officer permitted to run drug sniff until traffic stop concluded, unless unreasonably prolonged to do so). See also Nulph v. State, 838 So. 2d 1244 (Fla. 2d DCA 2003).

Here, Trooper Barley had completed all routine investigation within twelve minutes of the traffic stop and, but for the extended interrogation of Whitfield, there is no apparent reason why the citation should not have been issued within a short time thereafter. Because Trooper Barley decided he would confirm that Whitfield was contractually authorized by Avis to drive the vehicle before issuing the citation, eight-and-one-half minutes of the thirty-minute detention were taken up with that question. It is not clear on the record what criminal offense Trooper Barley was holding Whitfield to investigate. In its written order, the trial court indicated that Trooper Barley’s actions were reasonable in light of the recent theft of rental cars in the Central Florida area; however, Trooper Barley had already confirmed that the car was not stolen and no effort was made to determine that the lessee had not given permission for Whitfield to use the vehicle. This investigation extended the traffic stop to more than twenty-eight minutes, which, coincidentally or not, was exactly the same amount of time it took Trooper Barley to get a drug sniff dog on the scene.

We do not see how the length of this stop could be justified by the circumstances. Even adding up separately the amount of time to: (1) run the registration/warrants checks and stolen car checks, (2) complete the warning paperwork

Page 8

and (3) verify that Whitfield was authorized to drive the car, the time reasonably required for this traffic stop was several minutes less than the time that was taken. This court has previously disapproved of such desultory, wide-ranging interrogation of the motorist that has nothing to do with the ostensible purpose of the stop. Maxwell, 785 So. 2d 1277. Had the officer started and completed his traffic duties instead of expending the majority of his time asking the motorist about matters having nothing to do with the issuance of a traffic citation, the stop would have been completed before the dog arrived to conduct a sniff search. Time spent by law enforcement asking such questions can rise to the level of unreasonable delay. Id. at 1280.

Even assuming, however, that Trooper Barley had the right to continue to detain Whitfield for twenty-eight minutes in order to ascertain whether he was authorized by Avis to drive the vehicle, the motion to suppress still should have been granted because the search did not begin until after the citation was issued and the purpose of the traffic stop completed. When Whitfield finally was handed the written speed warning at 27:26 minutes into the stop, the K-9 unit had still not begun to search. The trial court made no finding that the dog sniff had occurred by the time Trooper Barley handed over the written warning.

The State urges this Court to approve the search by adopting the de minimis rule found in some federal court cases, most notably, out of the Eighth Circuit. This notion, as articulated in United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir. 1999), holds that “when a police officer makes a traffic stop and has at his immediate disposal the canine resources to employ this uniquely limited investigative procedure, it does not violate the Fourth Amendment to require that the offending motorist’s detention be momentarily extended for a canine sniff of the vehicle’s exterior.”

Page 9

Courts applying this rule reject what they perceive to be an artificial distinction between the traffic stop and the time required for the canine sniff, reasoning that “the artificial line marking the end of a traffic stop does not foreclose the momentary extension of the detention for the purpose of conducting a canine sniff of the vehicle’s exterior.” United States v. Alexander, 448 F.3d 1014, 1017 (8th Cir. 2006). See also United States v. Martin, 411 F.3d 998 (8th Cir. 2005).⁸

In contrast to the approach of the Eighth Circuit is the view taken by our Eleventh Circuit Court of Appeals. In United States v. Pruitt, 174 F.3d 1215 (11th Cir. 1999), the court held that a detention violated the Fourth Amendment where, on facts similar to this case, the officer who stopped the appellants for speeding spent an inordinate amount of time asking questions about matters unrelated to the stop, culminating in a request for consent to search the car, which was declined. This led to a call for the drug-sniff canine and a delay by the officer in issuing the warning for speeding until the drug dog arrived. In the view of the Eleventh Circuit, after a traffic citation has been processed, a citizen should be free to go, absent reasonable suspicion of criminal activity, or consent. United States v. Ramirez, 476 F.3d 1231 (11th Cir. 2007).⁹

Page 10

There is only one case we can find from a Florida court endorsing the de minimis rule, and even that was a bare-bones statement in dicta. State v. Griffin, 949 So. 2d 309 (Fla. 1st DCA 2007). In Griffin, a canine handler stopped Griffin for speeding and failing to maintain a single lane. Five to ten minutes later, while writing the citation, a second deputy arrived as backup. At the point when the second officer arrived, the canine handler stopped writing the citation and walked the dog around the vehicle. The dog alerted and the police conducted a search of the occupants. The Griffin court reversed the conviction on the basis that the dog alert did not authorize a search of the occupants. However, the court went on to say that the delay caused by the officer’s decision to stop writing the ticket to conduct the search was not unreasonable and the intrusion into Griffin’s liberty was de minimis. Id. at 315.

We are not persuaded by the State to apply this de minimis rule. For one thing, most of the federal cases cited by the State, and Griffin, are different from this case in that the canine unit was available immediately. In Caballes, the Court specifically noted a distinction between a dog sniff occurring during a routine traffic stop and one occurring during an “unreasonably prolonged traffic stop.” 543 U.S. at 407 (citing to People v. Cox, 782 N.E.2d 275 (Ill. 2002)). In Caballes, because the dog sniff was performed by one officer while a second officer was writing the warning ticket, and the entire episode lasted less than ten minutes, the duration of the traffic stop was not extended. Referring to Cox’s holding that a dog sniff and subsequent discovery of contraband during an unreasonably prolonged traffic stop was the product of an unconstitutional seizure, the Caballes court said: “We may assume that a similar result

Page 11

would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.” 543 U.S. at 408. This suggests that there is a constitutionally significant line of demarcation between a routine traffic stop that includes a dog sniff and one in which a dog sniff is conducted after the investigative procedures incident to the traffic stop have been completed. From the video of the traffic stop contained in the record, it is apparent in this case that the drugs were found after the routine traffic stop had ended and detention for deployment of the canine had begun. Admittedly, the delay was short — de minimis, if you will — but Florida is not a de minimis jurisdiction. In Florida, when the purpose of the traffic stop has been completed, the right to delay the motorist for the conduct of a sniff search expires.

As previously cited Florida cases demonstrate, Florida has not recognized a rule that a completed traffic stop can be extended to conduct a dog sniff search, even if the delay is de minimis. In Florida, a sniff search can be conducted before the traffic stop has been concluded, but not after. See Brown, 691 So. 2d at 638. This is a desirable bright-line test, not a subjective measure like de minimis that can be applied inconsistently.¹⁰ A bright-line rule is preferable for several reasons. First, it eliminates the problem of figuring out how long a traffic stop should have taken and how long is “unreasonably prolonged.” See Tracey Maclin, Police Interrogation During Traffic Stops: More Questions Than Answers, 31 Champion 34, 37-38 (2007). Even trickier is deciding how much time is de minimis.¹¹ If a citizen has completed the ordeal of a

Page 12

traffic stop and is entitled to leave, the citizen’s view of de minimis is likely very different from that of law enforcement or a judge sitting in his chambers. Innocent or guilty, a sniff search is not nothing. As Professor LaFave has outlined in his treatise on search and seizure law,¹² even if the time spent stalling until the dog arrives is not counted, a dog sniff search does take time to conduct, and is rarely the benign, seamless event that the court dealt with in Caballes. As in this case, passengers are ordered from the vehicle, leaving the driver and passengers exposed to the dangers of standing on the shoulder of the roadway. Although in the mind’s eye, these events occur in daylight and good weather, that is not necessarily the case. In this case, for example, although it was daylight, it was raining. The temperature might be very cold or very hot. In Florida, during much of the year, thirty minutes spent standing on the shoulder of a roadway exposed to the sun and heat can easily be an adverse health event. It is a humiliating and, for some, a frightening experience. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 9.3 (4th ed.) (2009). Sniff searches are not free from error,¹³ both because of the limitations of the canines and because drug residue can often be found on common items, like currency.¹⁴ Even in innocent circumstances, such a search can lead to further intrusive, time-consuming and destructive searches. Although a canine drug sniff may be permissible, if conducted while the motorist is

Page 13

already detained for a traffic ticket, to extend the detention to conduct a sniff search in order to obtain probable cause for a search where none otherwise exists, is unjustified.

Other jurisdictions have reached differing conclusions about how to fit a dog sniff into a traffic stop without violating the motorist’s Fourth Amendment rights. We find sensible the reasoning of the 2008 decision of the Supreme Court of Nebraska, State v. Louthan, 744 N.W.2d 454 (Neb. 2008). In Louthan, a traffic stop was initiated for an expired tag. As in this case, the driver declined consent to search the car. After verifying that the driver’s license was valid and there were no outstanding warrants, rather than issue the ticket, the driver was instructed to remain with another officer while the officer who conducted the stop went to his vehicle, retrieved his drug detection dog and conducted a search. Approximately eleven minutes after the initial stop, the dog alerted. The Louthan court found the search to be invalid because, unlike in Caballes, the drug detection dog was not deployed until after the investigative steps lawfully incident to the traffic stop had been completed. Id. The court rejected a scheme that required a subjective evaluation of whether the detention for purposes of a sniff search was “unreasonably prolonged.” Rather, once the traffic stop had ended, the Louthan court concluded, the only justification for any continuation of the stop was the existence of reasonable, articulable suspicion of unlawful drug activity. Id. at 462. This is consistent with the historical approach of Florida courts.

The State argues, alternatively, that, even if the stop were unreasonably prolonged, Trooper Barley had a reasonable, articulable suspicion that Whitfield was engaging in illicit drug activity because: 1) the rental vehicle Whitfield was driving was not rented to him; 2) the rental contract did not contain Whitfield’s name; 3) Whitfield was unduly nervous; 4) Whitfield did not fully disclose his prior criminal record; and 5)

Page 14

Whitfield’s story about his business was not credible. These facts fall short of establishing reasonable suspicion of criminal activity¹⁵ sufficient to detain Whitfield past the time reasonably necessary to issue him a citation for speeding. Eldridge, 817 So. 2d at 888.

Here, this traffic stop should have been concluded by the issuance of the written warning long before it was. It was indisputably over when Whitfield finally got his warning for speeding — almost thirty minutes after being stopped. The fact that the dog sniff began a short period of time — a de minimis amount of time — after the traffic stop was concluded, does not save the search.¹⁶

REVERSED and REMANDED.

MONACO, C.J., and TORPY, J., concur.

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

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

Case No. 2D08-3580.

District Court of Appeal of Florida, Second District.

Opinion filed April 23, 2010.

Appeal from the Circuit Court for Pinellas County, Pamela A. M. Campbell, Judge.

James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

We previously reversed the denial of Steven Berube’s motion for postconviction relief and remanded for the matter to be considered anew by a different judge. On remand the motion was denied again, but Berube maintains that the successor judge erred by basing her ruling on a transcript of the evidentiary hearing

Page 2

conducted by the previous judge. We agree and, accordingly, reverse and remand for further proceedings.

Berube’s robbery conviction was based in part on evidence of two confessions he allegedly made to the police. After his conviction, Berube filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He claimed that his trial counsel was ineffective for failing to move to suppress the confessions. The judge presiding over the postconviction proceeding held an evidentiary hearing and then denied Berube’s motion. This court reversed because the judge had failed to timely rule on Berube’s motion for the judge’s disqualification and, under the rules of judicial administration, was for that reason deemed disqualified. We remanded the case for further proceedings before a different judge. Berube v. State, 978 So. 2d 893 (Fla. 2d DCA 2008).

On remand, the successor judge accepted the State’s assertion that she need not conduct a new evidentiary hearing, but instead could dispose of Berube’s claims based on her review of the transcript of the previous hearing. Not so. It is well-established that, absent the consent of all parties, a successor judge may not base her ruling on evidence heard by her predecessor. Brinkley v. State, 898 So. 2d 1175, 1176 (Fla. 2d DCA 2005) (reversing and remanding for successor judge to conduct de novo hearing on motions to suppress) (quoting Beattie v. Beattie, 536 So. 2d 1078, 1079 (Fla. 4th DCA 1988)). In a similar case, the Fifth District found it necessary to reverse a second denial of postconviction relief. Goolsby v. State, 948 So. 2d 965, 966 (Fla. 5th DCA 2007) (explaining that the successor judge should have either summarily denied

Page 3

the motion, with supporting record attachments, or conducted a new evidentiary hearing).

Moreover, even if it had been proper for the successor judge to base her ruling on the transcript of the earlier hearing, the evidence reflected in that transcript did not support her conclusion that counsel’s election to forgo moving to suppress Berube’s confessions was a “sound and reasonable” tactical decision. Berube’s trial counsel testified that he saw no basis for moving to suppress because Berube denied making the confessions. This was a non sequitur. Nothing requires a defendant to acknowledge confessing as a condition to invoking the Exclusionary Rule. Cf. Morrison v. State, 818 So. 2d 432, 446 (Fla. 2002) (noting defendant’s testimony at suppression hearing where he denied making confession; declining to reach merits of suppression ruling where issue not preserved for appeal).

To the contrary, there is no inconsistency between seeking to exclude an opponent’s evidence and disputing the accuracy of that evidence. The question posed by a motion to suppress is whether the manner in which law enforcement obtained evidence requires its exclusion from trial, not whether the evidence is true. In this case, the State intended to introduce evidence that Berube confessed. The circumstances in which the purported confessions were alleged to have been made might have rendered the State’s evidence of them inadmissible regardless of whether Berube admitted making them.

As the successor judge concluded, Berube’s trial counsel made a tactical decision not to move to suppress Berube’s confessions. But his asserted basis for that decision was not reasonable. See Strickland v. Washington, 466 U.S. 668, 690-91

Page 4

(1984) (requiring deference to “strategic choices made after thorough investigation of law” but deferring to “strategic choices made after less than complete investigation . . . [only] to the extent that reasonable professional judgments support the limitations on investigation”); see also Collins v. State, 4 So. 3d 1249, 1251-52 (Fla. 4th DCA 2009) (concluding that counsel’s failure to seek suppression of defendant’s statement to police was not justified as tactical decision because the strategy was not reasonable).

All of the foregoing said, we express no opinion on the ultimate issue of Berube’s entitlement to postconviction relief. We reverse and remand for the successor judge to hold an evidentiary hearing on Berube’s claims of ineffective assistance of counsel.

Reversed and remanded.

CASANUEVA, C.J., and LaROSE, J., Concur.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

OFFICE OF CRIMINAL CONFLICT AND CIVIL REGIONAL COUNSEL, SECOND DISTRICT, Petitioner,
v.
DONALD SMITH and THE STATE OF FLORIDA, Respondents.
OFFICE OF CRIMINAL CONFLICT AND CIVIL REGIONAL COUNSEL, SECOND DISTRICT, Petitioner,
v.
MICHAEL L. QUEEN and THE STATE OF FLORIDA, Respondents.

Case No. 2D09-5285.

Case No. 2D09-5286, Consolidated.

District Court of Appeal of Florida, Second District.

Opinion filed April 23, 2010.

Petitions for Writ of Certiorari to the Circuit Court for Charlotte County, Alane C. Laboda, Judge.

Page 2

Jackson Stuart Flyte, Regional Counsel, Second District, Bartow, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Punta Gorda, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Respondents.

KHOUZAM, Judge.

In these two consolidated cases, the Second District’s Office of Criminal Conflict and Civil Regional Counsel seeks a quashal of (1) the orders appointing Regional Counsel to represent the defendants, Donald Smith and Michael L. Queen, at the evidentiary hearings on their respective motions for postconviction relief and (2) the orders denying Regional Counsel’s motions to withdraw. The petitions for writ of certiorari are untimely as to the orders appointing Regional Counsel, but timely as to the orders denying the Regional Counsel’s motions to withdraw. We grant Regional Counsel’s petitions for writ of certiorari to the extent that they seek a quashal of the orders denying Regional Counsel’s motions to withdraw.

These petitions have been consolidated as raising the same issue. At its core, the issue concerns whether Regional Counsel is subject to appointment for indigent defendants in postconviction proceedings. The underlying issue raised in these petitions has been resolved favorably to both the Fifth District’s and the First District’s Office of Criminal Conflict and Civil Regional Counsel in Deen v. Wilson, 1 So. 3d 1179 (Fla. 5th DCA 2009), and Office of Criminal Conflict and Civil Regional Counsel, First District v. Bruner, 19 So. 3d 447 (Fla. 1st DCA 2009).

Page 3

In Deen, 1 So. 3d 1179, the Fifth District considered orders in four trial court cases that had appointed Regional Counsel to represent defendants in postconviction proceedings and had denied Regional Counsel’s motions to withdraw. The court examined the creation of the Office of Regional Counsel and the duties set forth in the enabling statute. The court recognized that Regional Counsel’s “authority to represent criminal defendants in post-conviction proceedings is not set forth as an assigned duty in section 27.511(5), Florida Statutes (2008).” Id. at 1182. It determined that the postconviction court’s orders “assigned new duties to Regional Counsel beyond those established by the Legislature,” and that Regional Counsel’s appointment constituted a departure from the essential requirements of law. Id. at 1183. The court granted the petitions for writ of certiorari and quashed the orders of appointment. Id.

We agree with the Fifth District’s analysis in Deen, and like the First District in Bruner, recognize the precedent established by Deen. See Bruner, 19 So. 3d at 447-48. Here, the postconviction court declined to follow the precedent explained by and established in Deen and Bruner when it denied Regional Counsel’s motions to withdraw. This constituted a departure from the essential requirements of law without an adequate remedy by later appeal. Accordingly, we grant Regional Counsel’s petitions for writ of certiorari to the extent that they seek a quashal of the orders denying Regional Counsel’s motions to withdraw.

The petitions for writ of certiorari are granted and the orders denying the motions to withdraw are quashed.

WALLACE and CRENSHAW, JJ., Concur.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

MARCUS F. SANDERS, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. SC09-1729.

Supreme Court of Florida.

April 22, 2010.

Application for Review of the Decision of the District Court of Appeal — Certified Great Public Importance, Second District — Case No. 2D07-1741, (Lee County).

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Robert J. Krauss Bureau Chief, and Ronald Napolitano, Assistant Attorneys General, Tampa, Florida, for Respondent

CANADY, J.

In this case we consider whether sentence points were properly scored on the Criminal Punishment Code (CPC) scoresheet used for sentences imposed upon the revocation of probation. We have for review the decision of the Second District Court of Appeal in Sanders v. State, 16 So. 3d 232 (Fla. 2d DCA 2009), in which the Second District certified a question to this Court to be of great public importance. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We have revised the question as follows:

WHEN A DEFENDANT IS TO BE SENTENCED UPON REVOCATION OF PROBATION AND PRIOR TO THAT REVOCATION THE TRIAL COURT’S JURISDICTION OVER ONE OR MORE OF THE ORIGINALLY SENTENCED OFFENSES HAS EXPIRED, MAY THE OFFENSES OVER WHICH THE TRIAL COURT NO LONGER HAS JURISDICTION BE SCORED AS ADDITIONAL OFFENSES?

For the reasons that follow, we answer the rephrased certified question in the negative. Offenses over which the trial court no longer has jurisdiction cannot be scored as additional offenses during a sentencing proceeding following a violation of probation because they do not fit the definition of “additional offense” set out in section 921.0021, Florida Statutes (1999). Accordingly, we quash the decision under review and remand the case for proceedings consistent with this opinion.

I. BACKGROUND

In January of 2003, Marcus Sanders pleaded no contest to five offenses in three separate cases. The underlying criminal conduct occurred between February and August of 2000. Sanders was sentenced to concurrent three-year prison terms on all of the offenses, to be followed by concurrent terms of probation. He received two-year terms of probation for criminal mischief, attempted burglary, and aggravated assault. Those convictions were all third-degree felonies. Sanders received three-year terms of probation for the second-degree felony offenses of robbery and aggravated battery. Sanders, 16 So. 3d at 233.

After Sanders completed the two-year probationary terms but before he had completed his remaining probation on the second-degree felonies, the State alleged that Sanders violated the conditions of his supervision by moving without the consent of his probation officer and by failing to complete a residential drug treatment program. Sanders admitted violating the conditions of his probation. He was not charged with any new substantive offense.

In December of 2006, the trial court revoked Sanders’ probation for all five offenses. The trial court sentenced Sanders to concurrent 108-month prison terms on all five counts, which was a slight downward departure from the lowest permissible sentence of 111.6 months on the CPC scoresheet used by the trial court. Id.

Sanders appealed to the Second District Court of Appeal. He raised two issues. First, Sanders argued that the trial court erred in revoking his probation and sentencing him for the third-degree felony offenses because Sanders had completed his probation for those offenses. The Second District agreed. The Second District explained that pursuant to section 948.06, Florida Statutes (1999), the trial court did not have jurisdiction over the offenses for which Sanders had completed his probation. Accordingly, the Second District reversed the orders revoking Sanders’ probation as to those offenses. Sanders, 16 So. 3d at 234.

Second, Sanders contended that his sentences for the second-degree felonies should be reversed because of an error in preparing the scoresheet used at the sentencing following the revocation of probation. He asserted that because he could not be sentenced on the third-degree felonies, those crimes should not have been scored as additional offenses on a recalculated scoresheet. Sanders originally raised this issue before the trial court in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b), which was constructively denied. Sanders, 16 So. 3d at 234 n.1.

The Second District affirmed the trial court’s denial of the motion. The Second District explained that an additional offense is “any offense other than the primary offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.” Id. at 234 (quoting § 921.0021(1), Fla. Stat. (1999)). The Second District acknowledged that while the third-degree felonies were correctly listed as additional offenses when Sanders was originally sentenced in 2003, the offenses did not technically meet the definition of additional offenses in 2006 because the trial court lacked jurisdiction to sentence Sanders on those counts. The Second District rejected Sanders’ claim on appeal, however, because it concluded that the trial court could not employ a recalculated scoresheet when sentencing Sanders following his violation of probation. The Second District determined that “[t]he law is well-settled that following revocation of probation the trial court must use the original scoresheet used at the time the defendant was placed on probation” and that the trial court shall “impose any sentence which it might have originally imposed before placing the probationer on probation.” Id. at 235 (quoting Adekunle v. State, 916 So. 2d 950, 952 (Fla. 4th DCA 2005); § 948.06(1), Fla. Stat. (2000)). The Second District then concluded that scoring the third-degree felonies as additional offenses “would be the only possible way to ensure that Sanders faced upon the revocation of his probation the same sentence for the second-degree offenses that he might have originally faced on those counts.” Id.

The Second District affirmed in part and reversed in part with instructions. In addition, the Second District certified the following question as one of great public importance:

WHEN A DEFENDANT IS TO BE RESENTENCED AFTER THE TRIAL COURT REVOKES HIS OR HER PROBATION AND PRIOR TO THAT REVOCATION THE TRIAL COURT’S JURISDICTION OVER ONE OR MORE OF THE ORIGINALLY SENTENCED OFFENSES HAS EXPIRED, SHOULD THESE OFFENSES OVER WHICH THE TRIAL COURT NO LONGER HAS JURISDICTION BE SCORED AS PRIOR RECORD ON A RECALCULATED SCORESHEET OR SHOULD THE TRIAL COURT EMPLOY THE ORIGINAL SCORESHEET ON WHICH THOSE OFFENSES WERE SCORED AS ADDITIONAL OFFENSES?

Id. at 235-36. We accepted jurisdiction.¹

II. ANALYSIS

The issue before this Court is whether Sanders’ third-degree felony offenses, for which he had completed his prison sentences and probation, should have been scored as additional offenses on the scoresheet used in the 2006 sentencing upon the revocation of his probation. This issue presents a legal question, requiring interpretation of statutes and rules of criminal procedures. Pure questions of law are subject to de novo review. Sims v. State, 998 So. 2d 494, 504 (Fla. 2008). In the analysis that follows, we begin by explaining why the third-degree felony offenses should not have been scored as additional offenses. We then address whether the erroneous scoring of the third-degree felony offenses was harmful in this case, concluding that the error was harmful.

Florida Rule of Criminal Procedure 3.704(d)(28) provides that “[s]entences imposed after revocation of probation or community control must be imposed according to the sentencing law applicable at the time of the commission of the original offense.” All of the offenses at issue in this case were committed in 2000 and were subject to the 1998 CPC. Therefore, rule 3.704(d)(28) required the trial court to use the sentencing scoresheet associated with the 1998 CPC when sentencing Sanders following his violation of probation. Further, pursuant to section 921.0024(3), Florida Statutes (1999), because the offenses were committed under the same version of the sentencing code, the trial court was required to use a single scoresheet, covering all of the defendant’s offenses pending for sentencing. See also Fla. R. Crim. P. 3.704(d)(2) (“One scoresheet must be prepared for all offenses committed under any single version or revision of the guidelines or Criminal Punishment Code pending before the court for sentencing.”).

Section 921.0021, Florida Statutes (1999), defined the scoresheet categories of noncapital, felony offenses committed on or after October 1, 1998, as follows:

(1) “Additional offense” means any offense other than the primary offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.

. . . .

(4) “Primary offense” means the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing. Only one count of one offense before the court for sentencing shall be classified as the primary offense.

(5) “Prior record” means a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense. Convictions by federal, out-of-state, military, or foreign courts, and convictions for violations of county or municipal ordinances that incorporate by reference a penalty under state law, are included in the offender’s prior record. . . .

§ 921.0021, Fla. Stat. (1999). The version of Florida Rule of Criminal Procedure 3.704 in effect both at the time of Sanders’ original sentencing and his sentencing proceeding following the revocation of his probation echoed these definitions.

During the 2006 sentencing proceeding, the trial court scored Sanders’ conviction on the charge of aggravated battery, a second-degree felony, as the primary offense and his third-degree felony convictions as additional offenses. The Second District accurately concluded that the third-degree felonies were not pending before the trial court for sentencing during the 2006 sentencing proceeding because Sanders had completed his probation for those offenses. See § 948.04(2), Fla. Stat. (1999) (“Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed.”); State v. Hall, 641 So. 2d 403, 404 (Fla. 1994) (same).

Section 921.0021 does not differentiate original sentencing proceedings, sentencing proceedings upon revocation of probation, and resentencing proceedings. It does not include any exceptions to the statutory definitions for sentencing proceedings upon revocation of probation. The statute plainly provides that an offense qualifies as an “additional offense” for purposes of the scoresheet if it “is pending before the court for sentencing at the time” of the sentencing proceeding then being conducted. In this case, the third-degree felonies were not pending for sentencing during the 2006 sentencing proceeding. As a result, they were not properly scored as additional offenses.

The reasons articulated by the Second District for treating the offenses for which the two-year probationary period had previously expired as additional offenses do not justify departing from the plain meaning of “additional offense” as set forth in section 921.0021(1). The Second District determined that case law precluded the use of a recalculated scoresheet when sentencing Sanders following the violation of probation and required the trial court to use the original scoresheet filled in exactly as it was when Sanders was originally sentenced. The Second District relied on the Fourth District Court of Appeal’s statement that “[t]he law is well-settled that following revocation of probation the trial court must use the original scoresheet used at the time the defendant was placed on probation.” Sanders, 16 So. 3d at 235 (quoting Adekunle, 916 So. 2d at 952). The Second District’s conclusion that an original sentencing scoresheet cannot be revised or recalculated for purposes of sentencing a defendant after a violation of probation is inconsistent with section 921.0024, Florida Statutes (1999), and our holding in Roberts v. State, 644 So. 2d 81 (Fla. 1994).

Section 921.0024(1)(b) directs that where a defendant is being sentenced as a result of violating probation, “[c]ommunity sanction violation points” are to be assessed. Each community sanction violation not involving a new felony offense requires the addition of six sentence points to the defendant’s scoresheet. Each community sanction violation involving a new felony offense requires the addition of twelve sentence points. As a result of these community sanction violation points, the scoresheet prepared for a sentencing upon revocation of probation necessarily will differ from the scoresheet prepared for the original sentencing. Recalculation is not only permitted but required by section 921.0024.

In addition, we have determined that a scoresheet may be recalculated during a sentencing upon revocation of probation to correct an omission from the original scoresheet. In Roberts, some of the defendant’s prior convictions were erroneously omitted from the original scoresheet. This Court concluded that the trial court should have used a revised, recalculated scoresheet during the sentencing.

When Roberts was originally sentenced, he received the benefit of a mistake in his guidelines scoresheet. Now that he has committed a new crime and violated his probation, we see no reason to perpetuate the error. Justice is not served by awarding a defendant something to which he is not entitled. We agree with the rationale of the opinion below in which the court said:

The defendant cites to Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990)[,] for the proposition that a trial court is without power to consider a new scoresheet, over objection, containing prior convictions completely omitted from the original. The contention then is that the defendant be sentenced under a scoresheet that is simply not based upon the truth. Consequently, we do not agree with Graham because to follow it literally, the defendant receives the benefit of being sentenced under a scoresheet which mistakenly omits prior convictions. Neither the rules nor the substantive law justifies a defendant receiving the largesse of a judicial error. Since only one guidelines scoresheet may be used for each defendant covering all offenses pending before the court at sentencing, Fla. R. Crim. P. 3.701(d)(1); accord Lambert v. State, 545 So. 2d 838, 841 (Fla. 1989), following the defendant’s argument permits him to escape the punishment meted out by the law.

Furthermore, since the defendant’s violation of probation triggered the resentencing, the defendant is not being sentenced for “precisely the same conduct,” and double jeopardy concerns do not come into play.

Roberts, 644 So. 2d at 82-83 (quoting Roberts v. State, 611 So. 2d 58 (Fla. 3d DCA 1992)). In short, this Court concluded that a defendant is not entitled to perpetuate an error in scoring. Our holding in Roberts is thus inconsistent with the reasoning employed by the Second District.

Next, the Second District determined that the third-degree felonies should be scored exactly as they were at the original sentencing because section 948.06(1), Florida Statutes, provides that in a sentencing proceeding following a violation of probation, the trial court shall “impose any sentence which it might have originally imposed before placing the probationer on probation.” Sanders, 16 So. 3d at 235 (quoting 948.06(1), Fla. Stat. (1999)). The Second District concluded that scoring the third-degree felonies as additional offenses “would be the only possible way to ensure” that Sanders faced the same sentencing possibilities upon the revocation of his probation. Id.

We conclude, however, that this broad reading of the relevant provision of section 948.06(1) cannot be reconciled with the plain import of sections 921.0021(1) and 921.0024(1)(b) or with our reasoning in Roberts. In the context of the related statutory provisions, it is more reasonable to understand the provision of 948.06(1) as stating a rule that parallels the provision of rule 3.704(d)(28) that sentences imposed upon revocation of probation “must be imposed according to the sentencing law applicable at the time of the commission of the original offense.”

Having concluded that the trial court erred in scoring the third-degree felonies as additional offenses, we now consider whether that error was harmless. When a scoresheet error is challenged on direct appeal, via a motion under Florida Rule of Criminal Procedure 3.800(b) or via a motion under Florida Rule of Criminal Procedure 3.850, the error “is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.” Brooks v. State, 969 So. 2d 238, 241 (Fla. 2007) (citing State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005)). Sanders raised the issue of how his third-degree felony convictions should be scored in a rule 3.800(b) motion and argued the point on direct appeal. For the reasons that follow, we conclude that the record does not conclusively show that the trial court would have imposed the same sentence had the third-degree felonies not been scored as additional offenses. Thus, Sanders is entitled to a new sentencing proceeding.

Sanders contends that two of the three third-degree felony convictions should have been scored as prior record when he was sentenced following revocation of his probation. We agree. Section 921.0021(5) defines “prior record” as “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.” To be scored as prior record the offense must have been committed prior to the commission of the primary offense. The order of the convictions is irrelevant. See Harris v. State, 685 So. 2d 1282, 1285 (Fla. 1996) (concluding that a conviction for an offense committed after the primary offense but tried before the primary offense “[fell] between the cracks” and could not be scored as prior record); Halfacre v. State, 24 So. 3d 795, 796 (Fla. 5th DCA 2009) (holding that prior record should be determined based on the order of the commission of the offenses, not the order of convictions).

Sanders’ conviction for aggravated battery was scored as the primary offense. According to the information, the aggravated battery occurred on or around August 13, 2000. Two of the third-degree felonies were committed before this aggravated battery. Sanders committed the criminal mischief offense on or about February 16, 2000, and the attempted burglary offense on or about May 26, 2000. The final third-degree felony, aggravated assault, was committed contemporaneously with the primary offense.

When a word in a statute is not expressly defined, it is “`appropriate to refer to dictionary definitions . . .’ in order to ascertain the plain and ordinary meaning” of the word. School Bd. of Palm Beach County v. Survivors Charter Schools, Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (quoting Barco v. School Bd. of Pinellas County, 975 So. 2d 1116, 1122 (Fla. 2008)). The dictionary definition of “prior” is “[p]receding in time, order, or importance; earlier, former, previous, antecedent.” 2 Shorter Oxford English Dictionary 2350 (6th ed. 2007). A contemporaneously committed offense does not precede the commission of the primary offense in time and thus, based on the plain meaning of the statute, does not qualify as prior record.

Accordingly, Sanders’ third-degree felony convictions for the offenses of criminal mischief and attempted burglary—offenses committed prior to the primary offense—should have been scored as prior record when Sanders was sentenced following the revocation of his probation. In contrast, Sanders’ third-degree felony conviction for the offense of aggravated assault, which was committed contemporaneously with the primary offense, should not have been scored as an additional offense or as prior record when he was sentenced following the revocation of his probation.

When the three third-degree felony convictions were scored by the sentencing court as additional offenses, they totaled 37.2 points. Had the criminal mischief and the attempted burglary convictions been scored as prior record and the aggravated assault conviction not scored, they would have totaled 9.8 points. This 27.4-point difference would have reduced Sanders’ total sentence points to 149.4. The resulting lowest permissible prison sentence would be 91.05 months rather than 111.6 months—a difference of nearly two years.

From the record, we cannot rule out the possibility that this change in the lowest permissible sentence could have affected the trial court’s sentencing decision. The trial court gave Sanders a downward departure sentence of nine years of incarceration. At the sentencing hearing, the trial court explained:

Well, I’d like to sentence him to the year in the county in the drug program but he’s let me down too many times. He’s violated his probation. We’ve bent over backwards with him.

. . . .

This isn’t as bad as it seems, at least in my figuring. That’s why I was figuring the time served. (Inaudible). I’m going to roughly sentence him to the guidelines [sic]. I’m a rounder-offer so this is slightly below. I’m going to sentence him to nine years in the Department of Corrections, which is a hundred and eight months. I think that’s enough to do it.

As I figure that, though, if he’s got nine years and he’s served three, that drops him down to six, and he’s got another four months [of time served]. And if he’s a good prisoner, he gets a—he’ll serve eighty-five percent of that, it’ll be right around, a little less than four years. So, totally, it’s not nearly as bad as it seems.

Given the trial court’s comments, particularly its express reliance on the lowest permissible sentence identified by the scoresheet, the record does not conclusively show that the trial court would have imposed the same sentence had the third-degree felonies not been scored as additional offenses.

III. CONCLUSION

We answer the rephrased certified question in the negative. Where the trial court’s jurisdiction over a criminal offense has expired, the trial court may not score that offense as an additional offense during a sentencing proceeding. Because the trial court’s scoring of the third-degree felonies in this case did not comport with section 921.0021 and because the record does not demonstrate that the error was harmless, we quash the decision of Second District. We remand this case to the Second District with instructions that the Second District remand for sentencing consistent with this opinion.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

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

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

ALFRED C. CANSECO, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. SC09-1535.

Supreme Court of Florida.

April 22, 2010.

Application for Review of the Decision of the District Court of Appeal — Certified Great Public Importance, First District — Case No. 1D09-263, (Gadsden County).

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, Florida, for Petitioner

Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, and Joshua R. Heller, Assistant Attorneys General, Tallahassee, Florida, for Respondent.

PER CURIAM.

This case is before the Court for review of the decision of the First District Court of Appeal in Canseco v. State, 12 So. 3d 923 (Fla. 1st DCA 2009). In its decision, the district court ruled upon the following question, which the court certified to be of great public importance:

WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 SO. 2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA

Canseco, 12 So. 3d at 923. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

Alfredo Canseco entered a no contest plea in 1995 to one count of possession of a controlled substance and was sentenced to two years’ probation. Canseco signed an acknowledgement of rights that contained the statement, “I understand that if I am not a United States citizen, a plea of guilty or no contest could result in my deportation.”¹ On August 12, 2002, the Immigration and Naturalization Service (INS), issued a Notice to Appear in removal proceedings under section 240 of the Immigration and Nationality Act.² The notice informed Canseco that as a Mexican national, he was subject to removal from the United States as a result of his 1995 conviction.

Canseco filed a Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure 3.850 on October 23, 2008. Canseco alleged that his nolo contendere plea was not knowingly, intelligently, and voluntarily entered because the possibility of deportation was not explained, in violation of rule 3.172(c)(8). As a result of his plea, Canseco has been deported.

The circuit court denied Canseco’s motion, finding (1) Canseco failed to sign a verification oath, (2) even if he had signed the oath, Canseco was notified in 2002 by INS that he was subject to deportation, (3) Canseco was sworn and examined by a judge before he entered his plea, (4) he was represented by an attorney at the time of his plea, and (5) the plea form demonstrates that Canseco was on notice that he was subject to deportation. Thus, the circuit court found Canseco’s motion to be without merit.

Canseco appealed to the First District Court of Appeal, alleging that the circuit court erred by summarily denying his postconviction motion. In relevant part, Canseco argued that his motion was timely because this Court created a two-year window for all defendants whose convictions were already final in State v. Green, 944 So. 2d 208 (Fla. 2006). The First District affirmed, but certified the question. Canseco v. State, 12 So. 3d 923 (Fla. 1st DCA 2009).

Canseco sought review by this Court.

ANALYSIS

We begin with a discussion of this Court’s ruling in Peart v. State, 756 So. 2d 42 (Fla. 2000), which was overturned six years later by this Court’s decision in Green. Because Canseco argues that the language in Green should be interpreted to allow any defendant to file a motion to vacate a plea within two years of its issuance, we next explore how the district courts of appeal have interpreted our opinion. Ultimately, we conclude that Green did not revive claims that were final under Peart, and applies to only those claims that were not yet ripe under Peart that would have been time-barred by Green.

In Peart we held that (1) defendants not in custody should use rule 3.850 to raise rule 3.172(c)(8) claims,³ (2) the two-year period for raising rule 3.172(c)(8) claims commences when the defendant learns of the immigration consequences of the plea, and (3) defendants need not demonstrate probable acquittal at trial to obtain relief. Peart, 756 So. 2d at 44-45. We approved language requiring defendants to “establish . . . that they were `threatened’ with deportation because of the plea,” but did not expound on the meaning of “threatened” as it related to this requirement. Id. at 47. Courts interpreted the clause to require commencement of deportation proceedings, or similar governmental action, to establish a threat of deportation.

“By starting the two-year clock with actual or imputed notice of a threatened deportation rather than finality of the judgment and sentence . . . Peart authorized claims that otherwise would have been time-barred . . . .” Green, 944 So. 2d at 214. As applied, “Peart actually deter[red] defendants from raising rule 3.172(c)(8) claims within the first several years after a plea.” Green, 944 So. 2d at 214.

We accepted review in Green and became alerted “to larger problems in applying Peart fairly, efficiently, and with adequate regard for finality.” Green, 944 So. 2d at 210. We then receded from Peart because of these unintended consequences and held that the limitation period for filing a motion to vacate a plea alleging noncompliance with rule 3.172(c)(8) “commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation.” Green, 944 So. 2d at 210. It is apparent, then, that our goal in deciding Green was to limit delay in the filing of rule 3.172(c)(8) claims. Accordingly, the district courts of appeal have interpreted Green not to create a two-year window for defendants who received actual notice of deportation proceedings more than two years before filing a motion to withdraw plea.

The Third District Court of Appeal recently addressed this issue in State v. Freijo, 987 So. 2d 190 (Fla. 3d DCA 2008). In Freijo, the Third District concluded “that (1) Green did not revive claims previously adjudicated on the merits, or unadjudicated claims that unquestionably were time-barred at the time Green was announced.” Id. at 191. Jose Antonio Freijo was served with a deportation notice on November 8, 2002. Id. at 192. Under Peart, he was required to file a motion to withdraw his plea under rule 3.850 by November 8, 2004. Id. Freijo did not file, and thus his claim was time-barred under Peart. Id. Like Canseco, Freijo argued that this Court’s ruling in Green revived his right to move to withdraw his plea. Id. Freijo relied on the same language in Green that Canseco relies on in the instant case. In disagreeing with Freijo’s assertion, the Third District reasoned:

There are two clear indications within the Green decision that the revival of these already indisputably time-barred claims was not intended.

. . . .

The analysis in Green addressed the practical issues confronting trial courts, district courts, and the State in the wake of the Peart decision. Trial courts and the district courts applied varying standards to a claimant’s knowledge regarding the “threat” of deportation in determining the commencement of the two-year limitations period under rule 3.850 in cases in which an actual deportation notice had not been served. One of the concerns that arose from the application of Peart was that claimants would delay the filing of their motions to withdraw their pleas until they received an actual deportation notice because the passage of time would reduce the State’s ability to re-try cases in the event a plea is withdrawn.

Green explicitly sought to explore and remedy “the problems that have arisen from the application of Peart in the lower courts.” [Green] 944 So. 2d at 212. . . .

. . . .

It follows that the objective of the Florida Supreme Court in Green was to discourage further delay. There is no indication that the Court sought to revive claims, such as Freijo’s, that were already unquestionably time-barred.

Freijo, 987 So. 2d at 192-94. Further, the court noted that in establishing the new two-year window, Green also provided an exception where, “the defendant alleges and proves that he or she could not have ascertained the immigration consequences of the pleas with the exercise of due diligence within the two-year period.” Id. at 194 (citing Green, 944 So. 2d at 219).

The Third District also came to this conclusion earlier in Markland v. State, 971 So. 2d 832 (Fla. 3d DCA 2007). In Markland, the appellant had a deportation order entered against him in 1995, but did not move to withdraw his plea until 2005. Id. at 833. The trial court denied the claim as untimely, which was affirmed on appeal. Id. In 2007, relying on Green, Markland filed a motion for postconviction relief seeking, again, to set aside his plea. The Third District held: “The Green decision `reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8).’ The Green decision does not revive a claim which has already been found to be time-barred under Peart.” Markland, 971 So. 2d at 834 (quoting Green, 944 So. 2d at 219). The Third District reached this conclusion again in State v. De Armas, 988 So. 2d 156, 157-58 (Fla. 3d DCA 2008) (“Green actually sought to reduce the uncertainty and delay involved in the filing and determination of motions to vacate pleas grounded on `immigration consequences.’ . . . Green did not, however, open a new two-year window for the filing of such motions by defendants with over two years of actual knowledge of the immigration consequences of the challenged plea before the filing of the motion to vacate.”); and again in Morales v. State, 988 So. 2d 705, 706 (Fla. 3d DCA 2008) (holding that where a defendant’s claim became time-barred under Peart, Green did not revive it).

The Fourth District Court of Appeal reached the same conclusion in Pena v. State, 980 So. 2d 542 (Fla. 4th DCA 2008). In Pena, the appellant accepted a plea and was sentenced in 1991. Id. at 543. The record showed that Pena was unaware of the immigration consequences at the time of his plea. Id. In 1998, Pena was notified of removal proceedings. Id. He moved to withdraw his plea in 2000. Id. However, because Pena believed that he could not be deported, he voluntarily dismissed his motion. Id. at 544. After Pena’s motion to terminate the removal proceedings was denied, he filed a successive motion to withdraw his 1991 plea. Id. The trial court denied his motion, and the Fourth District affirmed the denial, reasoning, “[W]e do not believe the language of Green should be read to revive a claim that has already gone stale under Peart.” Pena, 980 So. 2d at 545. “Instead, we believe the exception to the two-year limitations period, for cases already final prior to Green, was intended to apply to litigants who had not yet been made aware of pending removal proceedings or who had not yet made any attempt to have their pleas withdrawn.” Id. at 545-56.

Additionally, in Prieto v. State, 989 So. 2d 688 (Fla. 4th DCA 2008) review denied, 1 So. 3d 173 (Fla. 2009), the Fourth District explained, “The supreme court did not announce any intent to allow defendants to revive an already stale claim, but rather closed a loophole that resulted in a scenario where a defendant could not file a sufficient claim under Peart, and would be unable to file a timely claim under Green.” Id. at 690. Like Canseco, Prieto received notice of his deportation while Peart was still controlling law and did not seek relief under Peart. Prieto, 989 So. 2d at 689-90.⁴

In Ventura v. State, 977 So. 2d 794 (Fla. 2d DCA 2008), the Second District Court of Appeal demonstrated clearly how the two-year Green window was intended to operate. In Ventura, the appellant pleaded guilty in 1994 to carrying a concealed weapon and driving while his license was suspended. Id. at 795. In September 2006, he filed a motion for postconviction relief asserting that he was not advised that his plea might subject him to deportation and that in July 2006 he was threatened with deportation. Id. His motion was dismissed without prejudice because of an outstanding arrest warrant. Id. Ventura refiled his motion in December 2006, which the trial court dismissed relying on Green, noting that Ventura filed his motion more than two years after his case was final. Id. On appeal to the Second District, Ventura argued that the trial court misread Green, to which the Second District agreed, stating:

Under Green a defendant such as Ventura, whose case is already final, has a period of two years from the date of Green to bring a claim alleging” that the trial court did not advise him at the time of his plea that he could be deported, that he would not have entered the plea if properly advised, and that the plea in fact renders him subject to deportation.”

The trial court’s requirement that Ventura also allege and prove that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within two years of his 1994 convictions is at odds with Green. Such a requirement would undermine the fairness concerns expressed by the supreme court as to defendants whose convictions were already final but who may have been able to obtain relief under Peart because of a recent threat of deportation.

Ventura, 977 So. 2d at 796-97 (citation omitted) (quoting Green, 944 So. 2d at 219).

Canseco’s argument—that Green provided a two-year window in which all defendants whose cases were final could file a motion to vacate a plea—is not supported by a logical reading of the opinion. If Canseco’s argument was taken to its logical conclusion, all defendants whose cases were final when Green was issued, even those that were disposed of under Peart‘s guidelines, would be eligible to file a motion to withdraw plea. Surely such a result was not this Court’s intent. Indeed, no district court has interpreted Green to provide such a result. Accordingly, we answer the certified question in the negative and approve the decision below.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

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

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

E.L.F., Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-703.

District Court of Appeal of Florida, Fourth District.

April 21, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Elijah H. Williams, Judge, L.T. Case No. 08-2372 DL00A.

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

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

FARMER, J.

In this case a traffic altercation between two drivers led to a third party being charged with criminal battery. The issue is whether the third party, defendant, was acting as a good Samaritan defending himself.

The State’s case began with this background. Because he had cut her off in traffic, a female driver pursued the other driver — following him for nearly a half hour — ultimately blocking him at a traffic light. Leaving her vehicle, she approached the male driver’s car, swung a blow at him, and then reached within and took his key. The male driver then emerged from his car and some tussling took place between them. At that point, the defendant juvenile confronted the male driver. The male driver claimed that the juvenile attacked him and struck him 10 times, and that he attempted to hit back but was unsuccessful.

The State rested at that point and the juvenile moved for a judgment of acquittal. The motion was denied. Defense counsel then presented his case, calling three witnesses: the female driver who confronted the male driver; defendant’s mother; and then the juvenile.

The female driver testified that she was pregnant and had her 18 month-old son in the car with her. The male driver gave her permission to get in front of his car so she could make a left turn. While she was in front of his vehicle, a truck, the male driver bumped her car and then bumped her again. As a result, she decided to follow him. She testified that there was a car next to her with the juvenile’s mother driving and the juvenile as a passenger. She asked the mother to call 911 because

Page 2

her phone battery was dead. The mother called 911 and joined in following the male driver for 15-20 minutes. The female driver was able ultimately to pull in front of the male driver’s truck. She left her car, approached the driver’s door of the truck and reached in to grab his keys so he could not leave.

The seated male driver thereupon punched her in the forehead, left the vehicle and kicked her in the midsection. She was sure that the juvenile defendant, who was in the passenger seat of his mother’s car, saw the male driver punching and kicking her. It was only then that the juvenile left his mother’s car. The juvenile told the male driver, “You’re not supposed to hit a woman.” At that point the male driver began hitting the juvenile.

Next, the juvenile’s mother testified. She was driving her son to work. She saw a woman on her left side motioning towards her. The woman informed her that the man in front of her had just hit her car and that her child was in the backseat. The woman asked the mother to call 911 because her phone did not work. Mother called 911 and stayed on the phone with 911 the entire time while following the man and the woman. She saw the woman get out of her car and approach the man’s window. The woman reached into his window, and the man punched her in the face, from which she fell to the ground.

The male driver then leaped from his vehicle and started fighting the woman. Seeing that he was punching the woman, the juvenile left his mother’s vehicle and tried to get the male driver off of her. The male driver then swung at the juvenile and they started fighting. She testified that the male driver and the juvenile were punching each other for a couple of minutes, but the man never fell to the ground and was never kicked. For those minutes, both of them were throwing punches at each other.

Finally the juvenile testified. His mother was taking him to work. He was not driving. The female driver next to them was trying to get his mother’s attention to call 911. They followed the woman for about 20-30 minutes, while his mother was on the phone with 911. He testified the woman reached into the male driver’s car, but the male driver responded by attacking the female driver, hitting her in the face.

He feared for the woman because it was a man beating a woman. He tried to get the male driver off of her. The male driver swung at him first but missed. The man then swung at him a second time and hit him. He did not hit the male driver first. After that, they were in a full-fledged

Page 3

fight. The male driver tried to strike him several times and the juvenile hit him back.

The defense rested and renewed the motion for judgment of acquittal, arguing that the juvenile came to the defense of another. The trial court denied the motion. The trial court thought the issue was not the juvenile’s state of mind but what a reasonable person would have done under the same circumstances. No further evidence was presented.

During closing arguments defense counsel argued the juvenile was a Good Samaritan. He asked the court not to be swayed by the notion that the female driver was acting out of road rage. The court responded that it was not reasonable to chase someone and to get into a fight in the middle of the street. Defense agreed that the female driver was unreasonable. The judge then wondered whether it is reasonable for the juvenile to leave his vehicle in the middle of an intersection “and start throwing punches:”

Counsel: If they’re defending a woman, absolutely, Your Honor.

Court: A woman who they did not know why they’re defending her.

Counsel: They — They personally observed Mrs. Lee get hit in the face. It is certainly reasonable at that point to come to the aid of someone who is being hit. Your Honor, let me continue. If you examine statute 3.6(g), the jury instructions in this case: “If you have any reasonable doubt on whether the question of whether the defendant was justified in using the non-deadly force, you must find him not guilty,” Your Honor. If you have even the — any and all reasonable doubt that he was engaging in self-defense, you must find him not guilty. If he was engaging in the defense of others, you must find him not guilty. So I ask you that you — that if you do find him guilty, you must be finding the State’s argument so persuasive that it eliminates all reasonable doubt from your mind that my client was engaging in self-defense.

Court: Why didn’t your client just run over there and pull that woman — pull that man off of that woman?

Counsel: Your Honor, he said he pulled the man off the woman, and he swung at him. At that point, he’s definitely justified to retaliate to the man who just

Page 4

swung at him and a man he personally observed hit the woman. Your Honor, I ask you to refer to the testimony in this case. Your reasonable doubt is in the numbers, Your Honor. Three people came up here and testified that this woman got punched in the forehead.

The judge was concerned that it was a high-speed chase and that road rage was involved. The judge said he found juvenile’s mother to be credible but found him guilty of battery anyway. The judge explained:

“I’m going to go ahead, and I’m going to find you guilty of battery. You can take it up with the Appeals Court … .

You know, quite frankly, I’ll be honest with you… . I’m going by strictly the elements. Okay. I go by — that’s how I read the jury instructions. I am quite sure that the Appeals Court could very well disagree with me. I don’t mind. I just want the restitution.

. . .

I’m not inclined to adjudicate in this thing. I think that the line is so close to self-defense and defense of knowing — I’ll state it for the Appeals Court. The line was very close in this case, Taylor. I’m not inclined to adjudicate the child in this, not with this set of facts.

. . .

This was a child that was going to help someone. I think it was immature what happened, and I don’t think a reasonable person would have done exactly what he did, and that’s the standard I go by.”

We give de novo review to the denial of a motion for a judgment of acquittal. W.W. v. State, 993 So.2d 1182, 1184 (Fla. 4th DCA 2008). The State has the burden of proving guilt beyond a reasonable doubt,¹ and when defendant presents a prima facie case of self-defense, it has the burden of proving defendant did not act in self-defense beyond a reasonable doubt. Fowler v. State, 921 So.2d 708, 711 (Fla. 2d DCA 2006). As the Court explained in Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984), superseded by statute on other grounds as stated in Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005):

“While the defendant may have the burden of going forward

Page 5

with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove that the defendant did not act in self-defense beyond a reasonable doubt.”

In Sneed v. State, 580 So.2d 169, 170 (Fla. 4th DCA 1991), we held that the State must disprove the defense of self-defense beyond a reasonable doubt. When the State’s evidence is legally insufficient to rebut the juvenile’s testimony establishing self-defense, the court must grant a motion for judgment of acquittal. Fowler, 921 So.2d at 711-12; see also Thompson v. State, 552 So.2d 264 (Fla. 2d DCA 1989); Hernandez Ramos v. State, 496 So.2d 837 (Fla. 2d DCA 1986); Rodriguez v. State, 550 So.2d 81 (Fla. 3d DCA 1989); Brown v. State, 454 So.2d 596 (Fla. 5th DCA 1984); Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980); Bacom v. State, 317 So.2d 148 (Fla. 1st DCA 1975).

The testimony of the female driver, the mother and the juvenile presented prima facie evidence of self-defense. Their testimony was that he did not initiate the fight with the male driver and that he acted to defend the female driver. The trial judge described the testimony of the mother specifically as being credible. Indeed the judge’s own stated view of the evidence is that it was nearly in equipoise. In this circumstance it was necessary for the State to present rebuttal evidence disproving self defense beyond a reasonable doubt. Its failure to do so required a judgment of acquittal.

Reversed for judgment of acquittal.

GROSS, C.J., and CIKLIN, J., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

JUAN ARRIETA-ROLON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2269.

District Court of Appeal of Florida, Fourth District.

April 21, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Mily Rodriguez-Powell, Judge, L.T. Case No. 05-16436CF10A.

Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.

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

GERBER, J.

Juan Arrieta-Rolon (the “defendant”) appeals his conviction for first-degree murder. He argues that the trial court erred by admitting into evidence, as excited utterances, hearsay statements which a witness gave to a police officer at the scene. We agree with the defendant that the statements were not excited utterances. However, the state has shown beyond a reasonable doubt that the statements, which merely corroborated the witness’s trial testimony, did not affect the verdict. Therefore, we affirm.

The defendant and his girlfriend, Janaina, were sitting outside of his apartment complex along with Janaina’s friend, Fernanda, who lived in another unit. Janaina said something which upset the defendant. Fernanda never had seen the defendant so upset. The defendant said he was going home and left. Ten or fifteen minutes later, the defendant returned and put a gun to Janaina’s face. The defendant asked Janaina, “Don’t you think I have courage?” Janaina did not reach up to touch or block the gun. The defendant pulled the trigger, and Janaina fell to the ground.

Fernanda ran to a neighbor’s unit. The neighbor observed Fernanda was crying. Fernanda said the defendant killed her friend, and she wanted to call her mother. She reached her brother and told him to call 911. Fernanda then ran into the parking lot and asked a driver to stop. The driver observed Fernanda was “[v]ery nervous and crying a lot.” Fernanda said her friend was hurt, and she asked the driver to call 911.

Page 2

Fernanda then returned to the scene. The defendant was holding Janaina. The defendant said, “Please tell them that it was not me.” He said he did not want to do it, and it was an accident. He said he wanted to scare Janaina, not kill her. Fernanda and the defendant stayed there until the police arrived about twenty minutes later.

Fernanda testified that, when the police arrived, she initially told the police that she did not know who shot Janaina, and that the bullet came from someplace else. She testified she made this initial statement because the defendant was standing nearby, and she was scared he “was going to do something against me.” She testified that about ten minutes later, when the police separated them, she told the police the truth.

The officer who separately spoke to Fernanda testified later in the trial. He stated that, when he initially approached Fernanda, she was upset and crying. She said that she did not know who shot Janaina. When the officer testified that Fernanda was concerned about the defendant standing nearby, and that she did not want him to hear what she was saying, the defendant objected as to hearsay. The state agreed it was hearsay, but argued the excited utterance exception applied. The trial court required the state to have the officer lay a predicate as to Fernanda being upset and crying. After the officer did so, the trial court overruled the objection. The officer then testified that he put Fernanda in his patrol car. When the state asked the officer what Fernanda said in the car, the defendant made another hearsay objection. The state argued Fernanda’s response would be another excited utterance. The trial court overruled the objection. The officer then testified Fernanda said “what happened to her friend could happen to her.”

The jury found the defendant guilty. This appeal followed. The defendant argues the trial court erred in finding that Fernanda’s statements to the officer were excited utterances. According to the defendant, the state presented no evidence that Fernanda still was under the stress of excitement from the shooting at the time of the statements. The defendant adds that Fernanda had time for reflection because she gave the police two different versions of how the shooting occurred. The defendant also argues the state cannot prove the error was harmless. According to the defendant, the statements bolstered the state’s case that he murdered Janaina with premeditation, destroyed his credibility, and contradicted his only defense that the shooting was a tragic accident. The defendant also contends the state compounded the error during closing arguments by referring to the statements.

Page 3

Section 90.803(2), Florida Statutes (2008), provides that “[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not inadmissible. The determination of whether a statement is an excited utterance “involves a factual finding by a trial court, which is reviewed under the abuse of discretion standard.” Vanevery v. State, 980 So. 2d 1105, 1107 (Fla. 4th DCA 2008). “In order for a statement to qualify as an excited utterance exception to the hearsay rule pursuant to section 90.803(2) . . . the statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event.” Hayward v. State, 24 So. 3d 17, 29 (Fla. 2009) (internal citations and quotations omitted).

As to the first prong, Fernanda’s statements were related to the shooting, which obviously was an event startling enough to cause nervous excitement. See id. (“It is not necessary that the statement illustrate the startling event; it is enough that the statement relate to the event.”). As to the second and third prongs, the supreme court has held:

[W]hile an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection. The statement must be made without time for reflective thought because it is the lack of time to contrive or misrepresent the facts that provides the reliability for such statements. . . . [T]he test regarding the time elapsed is not a bright-line rule of hours or minutes. . . . [T]he [f]actors that the trial judge can consider in determining whether the necessary state of stress or excitement is present are the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements.

Id. (internal citations and quotations omitted).

Here, the trial court overruled the defendant’s objections without expressing whether it had considered those factors. Our review of the record indicates that Fernanda was eighteen when the shooting occurred, though we cannot say her age was significant. The record also suggests that Fernanda was under greater stress immediately after the shooting than she was after the police arrived. That is, immediately after the shooting, she ran away, frantically crying and searching for help. She then returned to the scene. When the police arrived twenty minutes

Page 4

later, she was still upset. But she told the police a false version of how the shooting occurred before asking to be moved away from the defendant. Only after being put in the police car did she indicate that the defendant was the shooter. Such circumstances demonstrate that Fernanda had the time for reflective thought. Thus, her statements to the police were not excited utterances.

Cases with similar facts support our conclusion. See, e.g., Evans v. State, 838 So. 2d 1090, 1093-94 (Fla. 2002) (witnesses’ statements were not excited utterances where the witnesses initially told the police that the victim was shot by a man driving by and only after new officers arrived and significant time had elapsed did the witnesses identify the defendant as the shooter); Elysee v. State, 920 So. 2d 1205, 1207-08 (Fla. 4th DCA 2006) (victim’s statement was not an excited utterance where the victim initially told an officer that the defendant was taking her home, but fifteen to twenty minutes later, asked to speak with the officer alone and told him that the defendant had attempted sexual battery upon her; even though the victim appeared visibly upset, the victim had engaged in reflective thought).

Although the trial court erred in finding Fernanda’s statements to the officer to be excited utterances, we find the error was harmless. In its answer brief, the state has proven beyond a reasonable doubt there is no reasonable possibility that the error contributed to the conviction. See Ventura v. State, 35 Fla. L. Weekly S117 (Fla. Feb. 18, 2010) (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)) (“The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”) (emphasis added in Ventura).

Among other arguments, the state has shown that Fernanda’s statements to the officer merely corroborated Fernanda’s trial testimony that Fernanda was afraid of the defendant after the shooting occurred and that the defendant was the shooter. Because of this corroboration, the error in admitting Fernanda’s statements to the officer was harmless. See Hojan v. State, 3 So. 3d 1204, 1210 (Fla. 2009) (“[W]here the evidence introduced in error was not the only evidence on the issue to which the improper evidence related, the introduction can be harmless.”); Esteban v. State, 967 So. 2d 1095, 1099 (Fla. 4th DCA 2007) (trial court committed harmless error in allowing a witness to testify that the victim stated she knew her attacker, where the witness’s testimony was merely cumulative to the victim’s testimony); Erickson v. State, 565 So. 2d 328,

Page 5

334 (Fla. 4th DCA 1990) (“It is well settled that even incorrectly admitted evidence is deemed harmless and may not be grounds for reversal when it is essentially the same as or merely corroborative of other properly considered testimony at trial.”). Cf. Mariano v. State, 933 So. 2d 111, 117 (Fla. 4th DCA 2006) (trial court’s error admitting hearsay was not harmless where the victim’s statement relayed by one witness went beyond the victim’s statements relayed by other witnesses and were inconsistent with the victim’s trial testimony); but see Elysee, 920 So. 2d at 1208 (“Allowing the officer to bolster the credibility of the victim, who was the only witness to the crime, with her prior consistent statements, was prejudicial.”).

Because the error in admitting Fernanda’s statements to the officer was harmless, we affirm the defendant’s conviction.

Affirmed.

TAYLOR and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

ANN SCHAAB, a/k/a ANN URICH, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-405.

District Court of Appeal of Florida, Fourth District.

April 21, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County, Larry Schack, Judge, L.T. Case No. 06-7852-MMA.

Dan Hallenberg of The Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for appellant.

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

GROSS, C.J.

We affirm a circuit judge’s finding of contempt arising from a criminal case in the circuit court. Also, we agree with the appellate division of the circuit court that the indirect criminal contempt proceeding was a circuit court action, and not a county court misdemeanor, so that the appellate division properly transferred the appeal to this court.

Ann Schaab was the victim in an attempted second degree murder prosecution in the circuit court. Her former husband was the defendant. Pursuant to Florida Rule of Criminal Procedure 3.840(a), the state moved in the circuit court for the issuance of an order to show cause as to why Schaab should not be held in indirect criminal contempt for failing to obey a circuit court subpoena; that subpoena directed her to appear in the circuit court criminal case. The circuit judge issued an order to show cause. Although the signature line indicated that he signed the order as a “circuit court judge,” the order was styled as an order from the County Court of Martin County. The clerk assigned the order a misdemeanor case number. After Schaab was arrested in Citrus County, the circuit court issued a transport order styled as a circuit court case, but using the misdemeanor case number.

Ultimately, the contempt case was heard before the circuit judge who presided over the attempted murder prosecution and who issued the order to show cause. The court heard sworn testimony, including that of Schaab and her current husband. The circuit judge found Schaab guilty of contempt and sentenced her to 30 days in jail and placed her on six months probation. The probation order had a county court case number

Page 2

and, by interlineation, indicates that it was an order of the county court. However, the circuit judge signed it as a circuit judge. When asked which court had jurisdiction over the case, the circuit judge explained that he “prefer[red]” the contempt “to be treated as an independent misdemeanor case.” The circuit judge’s judgment of indirect criminal contempt was styled as a county court case.

Schaab appealed the conviction to the appellate division of the circuit court in the nineteenth circuit. The circuit court appellate panel held that it did not have jurisdiction because the judgment was a circuit court judgment, even though the trial judge had called it a county court case. The appellate panel noted that the contempt had occurred in a circuit court case and that a circuit judge with jurisdiction over the criminal case had entered the judgment of contempt. The appellate panel held that

[c]hanging the caption on the order and arbitrarily assigning a misdemeanor case number, does not magically transform the case from a circuit court case to a county court case. A rose by any other name is still a rose. This is a circuit court action, pure and simple.

Consequently, the appellate panel transferred the appeal to this court. We agree with the analysis of the appellate panel.

A criminal contempt is “`a crime in the ordinary sense.’” Pompey v. Cochran, 685 So. 2d 1007, 1012 (Fla. 4th DCA 1997) (quoting Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826 (1994)). Section 38.22, Florida Statutes (2008), provides both circuit and county courts with the authority to “punish contempts,” “whether such contempts be direct, indirect, or constructive, and in any such proceeding the court shall proceed to hear and determine all questions of law and fact.” No statute defines the crime of contempt or establishes the punishment. Moorman v. Bentley, 490 So. 2d 186, 187 (Fla. 2d DCA 1986). “[T]he power of courts to punish for contempt was recognized at common law.” Id. (citation omitted). Where there is no existing statutory provision on a subject, the “common law of England in relation to crimes” is “of full force” in Florida. § 775.01, Fla. Stat. (2008); Moorman, 490 So. 2d at 187. Section 775.02, Florida Statutes (2008), provides that when there exists no statutory provision for a common law offense, “the court shall proceed to punish such offense by fine or imprisonment, but the fine shall not exceed $500, nor the imprisonment 12 months.”

In sum, “[c]ontempt is a common law crime in Florida, which,

Page 3

although recognized by statute, is not specifically classified by statute as either a felony or a misdemeanor.” Graves v. State, 821 So. 2d 459, 460 (Fla. 2d DCA 2002) (citation omitted). Both the circuit and county courts have jurisdiction to hear criminal contempts.

The contempt in this case arose from a felony proceeding, a circuit court case. Section 38.22 gave the circuit judge jurisdiction to hear and punish the contempt. The clerk’s assignment of a misdemeanor case number did not affect the status of the contempt as a circuit court matter over which that court had jurisdiction. “[F]ile numbers are merely an administrative convenience for the clerk but not a statutory prerequisite for filing by the parties to the action.” Tanner v. State, 744 So. 2d 1017, 1019 (Fla. 4th DCA 1997). Case numbers assist a clerk in satisfying the statutory duty to keep all papers filed “with the utmost care and security, arranged in appropriate files.” § 28.13, Fla. Stat. (2008). Because the judgment of indirect criminal contempt was a circuit court matter, the appellate division of the circuit court did not have jurisdiction to hear the appeal.

On the merits, we affirm the circuit judge’s finding of contempt. The court expressly found that Schaab’s credibility was the main issue in the contempt case. Schaab’s testimony was evasive and contradictory on several points and her husband’s testimony was similarly questionable. Schaab contends that the evidence was insufficient to support the finding of contempt, which boils down to an argument that the trial court should have granted a motion for judgment of acquittal. On appeal, we must “consider the evidence and all reasonable inferences from the evidence in a light most favorable to the State.” McDuffe v. State, 970 So. 2d 312, 332 (Fla. 2007). “The fact that the evidence is contradictory does not warrant a judgment of acquittal since the weight of the evidence and the witnesses’ credibility are questions solely for the [fact finder].” Morrison v. State, 818 So. 2d 432, 451 (Fla. 2002) (quoting Donaldson v. State, 722 So. 2d 177, 182 (Fla. 1998)).

Affirmed.

POLEN and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites