Florida Criminal Law Opinions

S.D.T., a child, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-1955.

District Court of Appeal of Florida, Fourth District.

April 21, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Merrilee Ehrlich, Judge, L.T. Case No. 08-11785DL00A.

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

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, C.J.

We hold that the contents of a BOLO dispatch were non-hearsay admissible to establish an element of the crime of resisting an officer without violence. See § 843.02, Fla. Stat. (2008).

To find appellant guilty, the trial judge relied on a BOLO dispatch received by the arresting officer, which described two theft suspects at a Wal-Mart. Seeing two persons leaving the Wal-Mart who matched the description in the BOLO, the officer approached and said that he wanted to talk to them. One of the suspects was S.D.T., who fled in spite of the officer’s command to stop. The officer ran down S.D.T. catching up with him around the corner of the store.

S.D.T. contends that because the content of the dispatch was hearsay, the trial court was precluded from relying on it to find him guilty. However, the dispatch was not hearsay, because the state did not offer it for the truth of its contents.

One of the elements of resisting an officer without violence is that, at the time of the resisting, the officer was engaged in the lawful execution of a legal duty. See C.E.L. v. State, 24 So. 3d 1181, 1185-86 (Fla. 2009). If an officer has reasonable suspicion to make an investigatory stop, then an officer is engaged in the lawful execution of a legal duty. Id. at 1186. “To be guilty of unlawfully resisting an officer, an individual who flees must know of the officer’s intent to detain him, and the officer must be justified in making the stop at the point when the command to stop is issued.” Id. (citations omitted).

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Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2008). For the purpose of a hearsay analysis, the declarant in this case was the dispatcher who broadcast the BOLO giving the description of the theft suspects at the Wal-Mart.¹ The state offered the BOLO not to prove the truth of its contents—that the suspects had committed a theft—but to establish that the arresting officer was engaged in the lawful execution of a legal duty at the time of the stop. Regardless of the truth of the statements in the BOLO, the officer was justified in relying on it to make an investigatory stop.

This non-hearsay use of the BOLO to establish an element of the crime of resisting without violence distinguishes this case from those cases which have held that the contents of a BOLO are inadmissible hearsay. See Conley v. State, 620 So. 2d 180 (Fla. 1993); Owens v. State, 948 So. 2d 1009 (Fla. 4th DCA 2007); Taylor v. State, 845 So. 2d 301 (Fla. 2d DCA 2003); Tosta v. State, 786 So. 2d 21 (Fla. 4th DCA 2001); Horne v. State, 659 So. 2d 1311 (Fla. 4th DCA 1995); Jones v. State, 625 So. 2d 1291 (Fla. 4th DCA 1993).

For example, in Conley, the defendant was charged with armed burglary, armed robbery, and sexual battery with a deadly weapon. 620 So. 2d at 182. The state offered the testimony of an officer who received a police dispatch report of “a man chasing a female down the street” with “some type of gun or rifle.” Id. The Supreme Court held that the BOLO statements were hearsay, since the state used the evidence to prove the truth of the matter asserted, that is, to prove that the defendant “carried a rifle during the criminal episode.” Id. at 182.

Similarly, in Taylor, the defendant was charged with carrying a concealed firearm and possession of a firearm by a convicted felon. 845 So. 2d at 302. Two deputies testified that they received a radio dispatch about a man in a white Ford pickup truck who was waving around a gun. Id. at 302. A dispute at trial centered on whether the defendant was aware of a .44 magnum revolver found between the passenger door and the seat of the pickup truck. Id. at 302-03. The state used the contents of the radio dispatch to argue that the defendant knew about the gun. Id. at 303. The second district rejected the state’s argument that the “entire content of [the] dispatch was admissible to explain why police officers arrived at a crime scene.” Id. Citing Conley, the court held

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that the state “normally . . . may not introduce the hearsay content of a dispatch, especially to prove the truthfulness contained within that content.” Id. The court recognized that “[t]he content of a dispatch is often relevant at a pretrial suppression hearing” to establish that an officer acted with probable cause and observed that such content “typically plays no role in establishing the elements of the offense at trial.” Id.

This case fits within the latter situation acknowledged in Taylor. Without regard to the truth of the matters asserted in the BOLO, the fact that the dispatch was received by the arresting officer went to prove an element of the crime, that when S.D.T. fled, the officer was engaged in the lawful execution of a legal duty.

Affirmed.

POLEN and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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BARBARA SIMPSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-233.

District Court of Appeal of Florida, Fourth District.

April 21, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Matthew I. Destry, Judge, L.T. Case No. 08-17225 CF10A.

Sidney Z. Fleischman of Fleischman & Fleischman, P.A., Fort Lauderdale, for appellant.

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

DAMOORGIAN, J.

Barbara Simpson appeals the trial court’s order denying her motion to dismiss. We affirm based on the tipsy coachman rule.¹

While at the Fort Lauderdale International Airport, Simpson was approached by two detectives. The detectives conducted a search of her purse and discovered a pill box and burgundy change purse, both of which contained oxycodone tablets and other controlled substances. Based upon a combination of the controlled substances in her pill box and change purse, Simpson was charged with one count of trafficking in oxycodone, along with two other controlled substance offenses. Simpson subsequently filed a motion to dismiss as to two charges, one of which was trafficking in oxycodone.

In the motion, Simpson alleged that she and her husband had valid prescriptions for the oxycodone in her pill box and change purse, respectively, and that she was the custodian for her ill husband of the oxycodone in her change purse. The State responded with a traverse, specifically denying that Simpson’s husband had a valid prescription and that she was the custodian of the oxycodone in her change purse. The State further asserted in its traverse that Simpson’s prescription was

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invalid because she fraudulently obtained it by not telling her prescribing doctor about a previously-issued oxycodone prescription from another doctor. At the conclusion of the hearing on the motion to dismiss, the trial court denied the motion. The court found that Simpson unlawfully obtained her prescription by misrepresentation, constituting fraud. Simpson now appeals the trial court’s denial of her motion to dismiss only as to her trafficking in oxycodone charge and contends that the court erred in denying the motion because she legally possessed the oxycodone in her pill box under a valid prescription.

The standard of review of a trial court’s denial of a motion to dismiss is de novo. State v. Santiago, 938 So. 2d 603, 605 (Fla. 4th DCA 2006) (citing State v. Walthour, 876 So. 2d 594, 595 (Fla. 5th DCA 2004)). “A motion to dismiss . . . shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.” Fla. R. Crim. P. 3.190(d) (emphasis added).

We affirm the trial court’s denial of Simpson’s motion to dismiss based on the tipsy coachman rule, see Kennard, 903 So. 2d at 245-46, because the State specifically denied in its traverse that Simpson’s husband had a valid oxycodone prescription and that she was the custodian for her ill husband of the oxycodone in her change purse, see Fla. R. Crim. P. 3.190(d). At this stage, the State sufficiently traversed, specifically denying two material facts, and the trial court was required to deny the motion to dismiss because the State charged Simpson with only one count of trafficking in oxycodone. Accordingly, we need not address the trial court’s conclusion that Simpson unlawfully obtained her oxycodone prescription by misrepresentation.

Affirmed.

HAZOURI, J., concurs.

FARMER, J., concurs specially with opinion.

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Notes:

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FARMER, J., concurring specially.

I do not agree that the trial judge correctly denied the motion for the wrong reason. I do agree that he correctly considered the traverse sufficient to defeat the motion to dismiss. This case presents no occasion for the Applegate rule.²

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Because defendant has entered pleas and been sentenced on the charge, there are no further proceedings to be had. So this case has proceeded beyond the pretrial stage to final judgment. Accordingly I would address defendant’s contention that the final sentence from his order denying the motion to dismiss is improper.

In deciding a motion to dismiss a criminal charge, rule 3.190³ neither requires nor permits the judge to engage in fact finding. The court simply lays the traverse beside the charging document and motion to dismiss, ascertaining whether the traverse properly appears to deny critical facts involved. In this sense it is different from a motion to suppress where the judge is called upon to take testimony and resolve factual conflicts.

The motion to dismiss simply required the judge to make a legal determination about the effect of the traverse. His gratuitous “finding” that defendant was guilty of fraud in obtaining the prescription is a legal nullity. We should strike it from the order.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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R.T., a juvenile, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-987.

District Court of Appeal of Florida, Third District.

Opinion filed April 21, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 08-4704, Abby Cynamon, Judge.

Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.

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

Before COPE, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, J.

The appellant, R.T., appeals the trial court’s denial of his motion for

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judgment of dismissal and the subsequent order entered by the trial court withholding adjudication of delinquency and placing R.T. on probation. Because the record reflects that there was insufficient evidence to establish an essential element of the offense charged, we find R.T.’s appeal well-taken. Accordingly, we reverse the orders withholding adjudication of delinquency and denying R.T.’s motion for judgment of dismissal, and remand with instructions to enter an order granting R.T.’s motion for judgment of dismissal.

The pertinent facts are as follows. R.T. was charged with retaliating against a witness in violation of section 914.23(1), Florida Statutes (2008).¹ To prove a violation of section 914.23(1), the State was required to demonstrate that R.T. knowingly engaged in conduct threatening to cause bodily injury to another person with the intent to retaliate against that person for his testimony as a witness in an official proceeding. See id.; State v. Jones, 642 So. 2d 804, 805 (Fla. 5th DCA 1994).

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Although the evidence supports a finding that R.T. did threaten the witness, the record is devoid of any evidence that the alleged threat was in retaliation for the witness’ participation in an official proceeding. In fact, the alleged threat was made prior to any official proceeding taking place. Because the alleged threat occurred prior to the witness’ testimony in an official proceeding, it was clearly not made in retaliation of the witness’ testimony at an official proceeding. Accordingly, we conclude that the trial court erred in denying R.T.’s motion for judgment of dismissal at the close of the State’s case.²

Reversed and remanded with instructions.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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M.R., a juvenile, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-1074.

District Court of Appeal of Florida, Third District.

Opinion filed April 21, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 08-4521, Lester Langer, Judge.

Carlos J. Martinez, Public Defender, and Lisa M. Pisciotta, Ross C. Paolino and Nicolas Swerdloff, Special Assistant Public Defenders, for appellant.

Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.

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

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SCHWARTZ, Senior Judge.

The conduct of the appellant juvenile, a sixteen-year-old female, which consisted only of walking down the street in a “high prostitution area” at 9:30 in the evening¹, did not give rise to the founded or articulable suspicion of unlawful activity necessary to justify the Terry stop effected by the police when, after engaging in a consensual and uneventful conversation, they placed her in their patrol car pending a “record search.” See Terry v. Ohio, 392 U.S. 1 (1968); Johnson v. State, 610 So. 2d 581 (Fla. 1st DCA 1993); Smith v. State, 592 So. 2d 1206 (Fla. 2d DCA 1992); State v. Hoover, 520 So. 2d 696 (Fla. 4th DCA 1988). Because they were thus not then acting in the lawful execution of their duties as Section 843.02, Florida Statutes (2008)² requires, she was not guilty, as a matter of law, of resisting an officer under that statute by trying to escape the confinement.³ See C.H.C. v. State, 988 So. 2d 1145 (Fla. 2d DCA 2008); Davis v. State, 973 So. 2d 1277 (Fla. 2d DCA 2008); E.A.B. v. State, 964 So. 2d 877 (Fla. 2d DCA 2007).

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See also Tillman v. State, 934 So. 2d 1263, 1271 (Fla. 2006) and cases cited. The adjudication of delinquency entered on that basis is therefore reversed and the cause remanded with directions to dismiss the petition.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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JOHN W. HARRIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-2488.

District Court of Appeal of Florida, Fourth District.

April 21, 2010.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michele Towbin-Singer, Judge, L.T. Case No. 08-10879 CF10A.

John W. Harris, Raiford, pro se.

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

PER CURIAM.

John Harris appeals the summary denial of his Rule 3.850 motion for postconviction relief. Harris entered a plea to robbery. The parties stipulated to a factual basis at the plea hearing but no record support for the factual basis was identified. Koenig v. State, 597 So. 2d 256, 258 (Fla. 1992) (“[A] stipulation with no factual basis in the record is insufficient”). The state concedes that remand is necessary. See Guevara v. State, 647 So. 2d 887 (Fla. 4th DCA 1994) (remanding for an evidentiary hearing or attachment of records — including the probable cause affidavit — which might refute movant’s postconviction claim).

In his sworn motion, Harris alleges that he took the victim’s bicycle as she entered a store. She came outside and confronted him, and Harris apologized and gave the bicycle back. He argues that he at no time used any “force, violence, assault, or putting in fear” necessary to support a robbery offense. § 812.13(1), Fla. Stat. (2008). See also § 812.13(3)(b), Fla. Stat. (2008) (defining when an act will be deemed to have occurred “in the course of the taking”).

“An appellant can challenge the factual basis for his plea in a rule 3.850 motion.” Franklin v. State, 645 So. 2d 166, 166 (Fla. 4th DCA 1994) (remanding for attachment of records or evidentiary hearing on issue of whether a factual basis existed for defendant’s plea). In a postconviction motion, a movant must establish that plea withdrawal is necessary to correct a manifest injustice. Scott v. State, 629 So. 2d 888, 890 (Fla. 4th DCA 1993). See also Fla. R. Crim. P. 3.172(j) (requiring showing of prejudice).

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Harris’ claim that no factual basis existed for the robbery, and that counsel was ineffective in permitting him to plead under these circumstances, is legally sufficient and not refuted by attached records. See, e.g., Young v. State, 935 So. 2d 1263 (Fla. 2d DCA 2006); Benavidez v. State, 749 So. 2d 528 (Fla. 2d DCA 1999); Pelham v. State, 737 So. 2d 572, 573 (Fla. 1st DCA 1999). We reverse and remand for an evidentiary hearing or attachment of records refuting the claim.

On remand, Harris’ claim may be refuted by attachment of discovery documents — such as police reports, probable cause affidavits, or depositions — establishing that a factual basis actually existed for the robbery. The salient question is whether the undisputed facts support only a misdemeanor petit theft and not a robbery.

Reversed and remanded.

WARNER, MAY and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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DANIEL JOHN MONFORTO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-1428.

District Court of Appeal of Florida, Second District.

Opinion filed April 21, 2010.

Appeal from the Circuit Court for Lee County, James R. Thompson, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Daniel Monforto was on probation when he was convicted of committing a new crime. The circuit court determined that Monforto violated his probation by virtue of

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the new conviction, whereupon the court revoked his probation. We reverse because this court subsequently reversed the conviction upon which the revocation was based. Monforto v. State, 28 So. 3d 65 (Fla. 2d DCA 2009), review denied, No. SC09-1769 (Fla. Mar. 17, 2010).

When seeking to have Monforto’s probation revoked, the State relied solely on the bare fact of Monforto’s new conviction. It offered no separate evidence of Monforto’s alleged illegal conduct. In such circumstances, reversal of the new conviction requires setting aside the probation revocation as well. Stevens v. State, 409 So. 2d 1051, 1052 (Fla. 1982); Humbert v. State, 933 So. 2d 726, 728 (Fla. 2d DCA 2006). Therefore, we reverse the revocation of Monforto’s probation. We remand for a new hearing at which the State may again attempt to prove by a preponderance of the evidence that Monforto violated his probation by committing a new law violation. See Humbert, 933 So. 2d at 727.

Reversed and remanded.

WALLACE and CRENSHAW, JJ., Concur.

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

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W.M., a juvenile, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-1715.

District Court of Appeal of Florida, Third District.

Opinion filed April 21, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 08-7502, Lester Langer, Judge.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

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

Before COPE, WELLS, and SUAREZ, JJ.

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WELLS, Judge.

W.M., a juvenile, appeals from a conviction for battery on a school employee, claiming the evidence of intent insufficient to survive his motion for judgment of dismissal. We reject this claim because the evidence presented below that W.M., who was late for class, pushed aside a teacher who was blocking a doorway to prevent his entry into a classroom, after repeatedly having been denied entry and told to report to the behavior management teacher’s office, was sufficient to survive his motion for dismissal on this charge. See S.D. v. State, 882 So. 2d 447, 448 (Fla. 4th DCA 2004) (“Intent to commit a battery must be determined by the circumstances surrounding the touching or striking of the victim.”); see also Beasely v. State, 774 So. 2d 649, 657 (Fla. 2000) (confirming that on a motion for judgment of acquittal, all reasonable inferences that may be drawn from the evidence must be viewed in a light most favorable to the State); A.P.R. v. State, 894 So. 2d 282, 284 (Fla. 5th DCA 2005) (confirming that the “standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case”).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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ALFREDO G. SANCHEZ, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D06-6562.

District Court of Appeal of Florida, First District.

Opinion filed April 20, 2010.

An appeal from the Circuit Court for Escambia County, Frank L. Bell, Judge.

Nancy A. Daniels, Public Defender, Kathleen Stover and David P. Gauldin, Assistant Public Defenders, Tallahassee, for Appellant.

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

THOMAS, J.

Appellant challenges the trial court’s denial of his request to withdraw his nolo contendere plea, and the constitutionality of his sentence under Florida’s prohibition against double jeopardy. We reject Appellant’s double jeopardy claim without comment. We affirm the trial court’s denial of Appellant’s request to withdraw his plea.

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Facts

Appellant was charged with one count of engaging in sexual activity with a minor, one count of lewd and lascivious battery on a victim over 12 but under 16 years of age, and one count of lewd and lascivious molestation of a victim over 12 but under 16 years of age. The State and Appellant entered into a sentence recommendation agreement, which Appellant signed, certifying that he agreed to plead nolo contendere and that he recognized the maximum sentence was 15 years’ imprisonment for each count. The recommendation incorporated, by reference, arrest reports generated by law enforcement as the factual basis for the agreement.

During Appellant’s plea hearing, the trial court explained in detail the consequences of pleading nolo contendere and repeatedly warned Appellant that he could be sentenced to 45 years in prison. Appellant indicated he understood the trial judge’s questions, but when the trial court asked him to enter a plea on the record, Appellant was unsure what he wanted to do. A recess was held and

Appellant consulted his attorney, after which Appellant pled nolo contendere. Approximately one month later, but prior to sentencing, Appellant filed a motion to withdraw his plea. As grounds for the motion, Appellant argued he was uncertain when entering his plea, distraught, and incapable of making a rational decision. During a hearing on the motion, Appellant testified that he disagreed with the charges because “[he] didn’t do half of it.” When the trial court asked

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Appellant which half of the charges he disagreed with, Appellant responded only that he wanted to go to trial and wanted to withdraw his entire plea. Appellant testified he previously pled guilty to five felonies and understood what was happening when he entered those pleas, but “that was a different story” because “they only gave [him] probation.” The trial court denied Appellant’s motion, adjudicated him guilty, and sentenced him to 45 years’ imprisonment.

Analysis

We review the trial court’s denial of Appellant’s motion to withdraw his plea for an abuse of discretion. Reaves v. State, 979 So. 2d 1066, 1069 (Fla. 1st DCA 2008). Appellant’s motion to withdraw plea was filed under Florida Rule of Criminal Procedure 3.170(f). When considering a motion under rule 3.170(f), the trial court is required to allow the defendant to withdraw his plea where the defendant establishes good cause for withdrawal; upon a lesser showing, the rule allows the court to use its discretion. Rappaport v. State, 24 So. 3d 1211, 1213 (Fla. 4th DCA 2009). “A defendant should be permitted to withdraw a plea if [he] files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting [his] rights.” Smith v. State, 840 So. 2d 404, 406 (Fla. 4th DCA 2003) (emphasis omitted).

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Appellant argues that he should have been allowed to withdraw his plea because the trial court did not inquire about the factual basis for the plea, and Appellant was unaware of the factual basis for the charges when the plea was entered. Florida Rule of Criminal Procedure 3.172(a) requires the trial court to determine that a plea is voluntarily entered and that a factual basis for the plea exists. See also Suarez v. State, 616 So. 2d 1067, 1068 (Fla. 3d DCA 1993) (“The purpose of the factual basis is to avoid a defendant mistakenly pleading to the wrong offense. To preclude this possibility, the trial judge has considerable discretion to determine whether there is a factual basis for a plea.”).

“Failure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice.” Fla. R. Crim. P. 3.172(i) (2006); see Otero v. State, 696 So. 2d 442, 442 (Fla. 4th DCA 1997). Thus, a trial court’s failure to inquire about the factual basis for a plea, as required by rule 3.172(a), results in reversible error only where the defendant establishes he was prejudiced by the error. For example, in Koening v. State, 597 So. 2d 256, 258 (Fla. 1992), the court held that a defendant’s attorney’s stipulation as to the factual basis for the plea was insufficient where the record contained no information establishing a factual basis for the alleged crimes.

Here, although the trial court did not inquire about the factual basis for Appellant’s plea on the record during the plea colloquy or during the hearing on

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Appellant’s motion to withdraw, the record contains ample evidence establishing the factual basis for his plea. See James v. State, 886 So. 2d 1032, 1033-1034 (Fla. 4th DCA 2004) (holding no prejudice results where trial court failed to inquire about factual basis for defendant’s plea where the trial court could look at the probable cause affidavit and determine the factual basis). The sentence recommendation signed by Appellant expressly incorporated the arrest reports as the factual basis for the plea. The officer’s arrest reports contained a statement by one of the victims, post-Miranda statements by Appellant wherein he admitted all charges, and summaries of numerous statements by the victims’ friends and family members. Appellant was aware of the statements contained in the arrest reports because he sought to exclude those statements through a motion in limine. By signing the sentence recommendation, Appellant certified that he reviewed the facts of his case with his attorney and that a factual basis for the plea existed. Thus, Appellant was not prejudiced by the trial judge’s failure to inquire on the record regarding the factual basis for the plea, because the trial court could look at the recommendation agreement and the arrest reports and determine a factual basis for the plea. See James, 886 So. 2d at 1034.

Further, the record transcripts reveal that Appellant’s plea was knowing and voluntary. The trial court gave Appellant a detailed explanation regarding his rights and what pleading nolo contendere meant. See Fla. R. Crim. P. 3.172(c)

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(listing the requirements for determining whether a nolo contendere plea has been voluntarily entered). The trial court told Appellant several times that he was “taking his chances” by pleading “straight up” and he was facing a possible 45-year prison sentence. It is clear from the colloquy between Appellant and the trial judge that Appellant was more concerned with the result of his plea than the factual basis for the charges. Appellant was given ample opportunity to explain why he wished to withdraw his plea, but his only explanation was he wished to go to trial because he received a different punishment in this case than in his previous felony plea agreements.

Based on the foregoing, Appellant failed to establish good cause for withdrawing his plea. The trial court’s denial of Appellant’s request was not an abuse of discretion because the trial court’s failure to determine a factual basis for the plea was not prejudicial.

AFFIRMED.

KAHN and DAVIS, JJ., CONCUR.

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

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GARY MOSANSKY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-3312.

District Court of Appeal of Florida, First District.

Opinion filed April 20, 2010.

An appeal from the Circuit Court for Duval County, David Gooding, Judge.

Nancy A. Daniels, Public Defender and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant seeks review of his first-degree murder conviction and resulting life sentence. Among the issues raised on appeal, Appellant argues that the trial court fundamentally erred by failing to specifically instruct the jury that the state

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had the burden to prove beyond a reasonable doubt that he did not act in self-defense. We reject this argument for the reasons that follow, and we affirm Appellant’s remaining claims without discussion.

Without objection, the trial court gave the jury the following instructions pertinent to Appellant’s claim of self-defense:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which [Appellant] is charged if the death of [the victim] resulted from the justifiable use of deadly force. Deadly force means force likely to cause death or great bodily harm.

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent, one, imminent death or great bodily harm to himself or another, or, two, the imminent commission of aggravated battery against himself or another.

* * *If in your consideration of the issue of self-defense, you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.

Further, the court gave the following instruction on the burden of proof:

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant, as to each material allegation in the information, through each stage of the trial unless it has been overcome by the

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evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendant’s presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime. The defendant is not required to present evidence or prove anything.

Appellant argues that the trial court’s failure to specifically instruct the jury that the state had the burden to disprove his claim of self-defense was fundamental error because “self-defense is really in the nature of an element of the offense once the defendant presents some evidence to warrant the instruction,” and under Reed v. State, 837 So. 2d 366 (Fla. 2002), and State v. Delva, 575 So. 2d 643 (Fla. 1991), the failure to instruct the jury on a disputed element of the charged offense constitutes fundamental error. There is no merit to this argument.

The fundamental error doctrine applies “only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008) (quoting Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)) (emphasis omitted). The failure to give an instruction on an affirmative defense is not per se fundamental error. See id. (“We have never held that the failure to give an instruction … on an affirmative defense always constitutes fundamental error.”). Rather, “[w]here the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is `so

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flawed as to deprive defendants claiming the defense … of a fair trial.’” Id. (quoting Smith).

Appellant’s reliance on Reed and Delva is misplaced because self-defense is not an element of first-degree murder, the offense at issue; rather, it is an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense. See id. at 452-53 (quoting Hopson v. State, 168 So. 811 (Fla. 1936)); Cancel v. State, 985 So. 2d 1127, 1131 n.3 (Fla. 5th DCA 2008) (Griffin, J., specially concurring); but cf. Zuniga v. State, 869 So. 2d 1239, 1240 (Fla. 2d DCA 2004) (“The self-defense instruction can be likened to an element of the offense for its importance to the defendant.”). The defendant has the burden of presenting sufficient evidence that he acted in self-defense in order to be entitled to a jury instruction on the issue. But the presentation of such evidence does not change the elements of the offense at issue; rather, it merely requires the state to present evidence that establishes beyond a reasonable doubt that the defendant did not act in self-defense.

The cases cited by Appellant in support of his argument on this issue stand simply for the proposition that in a criminal prosecution the burden of proving guilt beyond a reasonable doubt never shifts from the state and, as a result, when self-defense is properly at issue, the state effectively has the burden to prove that defendant was not acting in self-defense during the commission of the criminal act.

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See, e.g., Sipple v. State, 972 So. 2d 912, 915-16 (Fla. 5th DCA 2007); Andrews v. State, 577 So. 2d 650, 652-53 (Fla. 1st DCA 1991). Those cases do not, however, stand for the proposition that the trial court is required to specifically instruct the jury of the state’s burden to disprove the claim of self-defense.

Not only did Appellant fail to cite any cases supporting his argument that such an instruction is required, he neglected to even acknowledge the cases in which the argument has been expressly rejected. In Bowen v. State, 655 So. 2d 1208 (Fla. 4th DCA 1995), the appellant argued that the trial court erred in denying his request to instruct the jury that the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. The court rejected this argument and held that the standard jury instruction given in that case — which was materially the same as the instruction read in this case — adequately informed the jury that the defendant must be acquitted if there was any reasonable doubt concerning the defendant’s use of force against the victim. Id. at 1209.

More recently, in Bridges v. State, 878 So. 2d 483 (Fla. 4th DCA 2004), the court rejected the appellant’s argument that the trial court fundamentally erred by failing to instruct the jury that the state had the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. The court noted that the jury in that case — like the jury in this case — was instructed that “if it had

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reasonable doubt on the issue of whether the defendant was justified in using force, it should find him not guilty,” and the court explained:

Our standard jury instructions, from which the above instructions were taken, do not include an instruction that the state has the burden to prove beyond a reasonable doubt the absence of self-defense, where self-defense is raised. Nor has appellant cited any Florida case which would require the giving of such an instruction.

Id. at 484. Similarly, in Bolin v. State, 297 So. 2d 317 (Fla. 3d DCA 1974), the court explained:

[W]hen the defendant raises self-defense as an issue at trial it is within the province of the trial court to determine whether or not the evidence, viewed most favorably to the defendant, is adequate to support an instruction on self-defense. Once the judge concludes that the self-defense issue is proper, he need only instruct the jury as to the elements of self-defense. He will have no occasion to speak of burden of proof other than to explain the state’s burden of proving guilt beyond a reasonable doubt.

Id. at 319 (internal quotations omitted).

The jury instructions in this case correctly instructed the jury as to the elements of self-defense. See Jones v. State, 13 So. 3d 139 (Fla. 5th DCA 2009) (holding that the standard jury instruction on the justifiable use of deadly force did not shift the burden of proof to the defendant); cf. Fields v. State, 988 So. 2d 1185, 1190 (Fla. 5th DCA 2008) (reversing based upon erroneous self-defense instruction that potentially left the jury with the impression that it had to find the

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defendant guilty if he did not prove his claim of self-defense beyond a reasonable doubt). And the instructions, taken as a whole, clearly, comprehensively, and correctly instructed the jury on the state’s burden of proof. See Roger v. State, 670 So. 2d 160, 162 (Fla. 5th DCA 1996) (holding that the jury was sufficiently apprised of the state’s burden of proof regarding self-defense where they were instructed that they must find the defendant not guilty if they had a reasonable doubt on the question of whether the defendant was justified in the use of deadly force); Bowen, 655 So. 2d at 1209 (“Because the jury was told that appellant must be acquitted if there was any reasonable doubt concerning his justification in using force against the alleged victim, there was no reasonable possibility that the jury was misled in regard to the prosecution’s burden of proof.”); Bolin, 274 So. 2d at 319 (“A conviction will not be reversed because a particular jury instruction has not been given where, on the whole, the charges as given are clear, comprehensive, and correct.”).

In sum, based upon the authorities above, the trial court did not err (and, certainly, did not fundamentally err) by failing to specifically instruct the jury that the state had the burden to disprove Appellant’s claim of self-defense. We find no merit in Appellant’s remaining claims. Accordingly, we affirm Appellant’s judgment and sentence.

AFFIRMED.

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HAWKES, C.J., WETHERELL and ROWE, JJ., CONCUR.

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

Courtesy of David Edelstein

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EUGENE GREGORY WALTON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-1935.

District Court of Appeal of Florida, Second District.

Opinion filed April 16, 2010.

Appeal from the Circuit Court for Hillsborough County, Anthony K. Black, Judge.

Eugene Gregory Walton, pro se.

Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

In January 2005, Eugene Gregory Walton was convicted and sentenced for burglary of a dwelling with assault and false imprisonment. We affirmed his convictions and sentences on direct appeal. Walton v. State, 928 So. 2d 350 (Fla. 2d DCA 2006) (table decision). Mr. Walton now appeals the denial of his August 9, 2006,

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amended postconviction motion. See Fla. R. Crim. P. 3.850. He raised twenty-four claims. By order dated June 11, 2007, the postconviction court allowed Mr. Walton to amend claim one. It ordered a State response to claims ten, twelve, thirteen, and twenty-four. In the same order, the postconviction court denied the remaining claims as refuted by the record, procedurally barred, or facially insufficient or conclusory. After receiving Mr. Walton’s amended claim one and the State’s response, the postconviction court, by order dated September 11, 2007, ordered an evidentiary hearing on claims one and ten. It denied claims twelve and thirteen as refuted by the record, and denied claim twenty-four as facially insufficient. By final order dated March 20, 2008, the postconviction court denied claims one and ten after conducting an evidentiary hearing.

We affirm, without further discussion, the denial of claims one and ten, the summary denial of claims four and eleven through seventeen as refuted by the record, and the summary denial of claims eighteen through twenty-three as procedurally barred.

Although we are sympathetic to the position taken in the dissent, the established practice of this court in reviewing pro se appeals of rule 3.850 orders compels us to reverse the summary denial of claims two, three, five, six, seven, eight, nine, and twenty-four as facially insufficient or conclusory and remand for the postconviction court to allow Mr. Walton a reasonable period of time to amend the claims if he can do so in good faith. See Spera v. State, 971 So. 2d 754, 761-62 (Fla. 2007);¹ Jimenez v. State, 993 So. 2d 553, 556 (Fla. 2d DCA 2008) (applying Spera to claims that allege merely conclusory allegations as well as to claims that are facially insufficient).

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Shortly after his direct appeal failed, Mr. Walton filed his amended rule 3.850 motion. In July 2007, he amended claim one. Spera issued in November 2007. Until the postconviction court’s final order in March 2008, Mr. Walton had several months to seek leave to amend the facially insufficient or conclusory claims. He did not do so. Nor did he raise any issue about those claims in his brief.² He focused, instead, on claims that were denied as procedurally barred or refuted by the record.

Some districts do not afford relief to a postconviction claimant who fails to properly raise an issue in his brief; effectively, such relief is waived. See Watson v. State, 975 So. 2d 572 (Fla. 1st DCA) (holding that when a defendant has appealed from a summary denial of a claim but fails to address Spera in his brief, appellate court need not consider the matter because the issue is waived), appeal dismissed, 987 So. 2d 1211 (2008); Williams v. State, 24 So.3d 1252 (Fla. 1st DCA 2009).

Watson relies principally on death penalty postconviction cases where an attorney represented the petitioners and waived certain claims. Mr. Walton is pro se. But, it has been noted that a pro se postconviction claimant can, by failing to raise issues in a brief in the appellate court, waive a Spera or other claim. See Watson, 975 So. 2d at 574-75 (Wolf, J., concurring); see also Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009); cf. Austin v. State, 968 So. 2d 1049 (Fla. 5th DCA 2007); Hammond v. State, 35 Fla. L. Weekly D670 (Fla. 4th DCA Mar. 24, 2010).³

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In postconviction appeals before this court, we have considered all issues summarily denied by the trial court irrespective of the fact that such issues have not been briefed.⁴ Our practice is based on the appellate rule of procedure relating to the summary grant or denial, without evidentiary hearing, of collateral or postconviction motions—”[o]n appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Fla. R. App. P. 9.141(b)(2)(D). This admonition does not appear to prevent a postconviction claimant from waiving claims; nevertheless, this court has interpreted the rule to require review of all summarily denied claims.

Based on this court’s practice, and as Spera instructs, when faced with a conclusory or facially insufficient claim, the postconviction court should strike the facially insufficient or conclusory claims with leave to amend, if the movant can do so in good faith. See 971 So. 2d at 761. Accordingly, we reverse and remand for further consideration of claims two, three, five, six, seven, eight, nine, and twenty-four. In doing so, we certify conflict with Watson, 975 So. 2d 572, Williams, 24 So. 3d 1252, Ward, 19 So. 3d 1060, Austin, 968 So. 2d 1049, and Hammond, 35 Fla. L. Weekly D670. We also certify to the supreme court the following question of great public importance:

WHEN CONSIDERING A POSTCONVICTION APPEAL, UNDER RULE 9.141(b)(2)(D), MUST THE DISTRICT

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COURT OF APPEAL AFFORD REVIEW OF ALL SUMMARILY DENIED CLAIMS EVEN WHEN THE PRO SE APPELLANT, OR ONE REPRESENTED BY COUNSEL, HAS FILED A BRIEF BUT HAS NOT BRIEFED OR OTHERWISE FURTHER PURSUED CERTAIN CLAIMS?

Affirmed in part, reversed in part, and remanded with instructions.

LaROSE, J., and FULMER, CAROLYN K., SENIOR JUDGE, Concur.

KELLY, J., Concurs in part and dissents in part.

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Notes:

—————

KELLY, Judge, Concurring in part and dissenting in part.

I would affirm the trial court’s order. Mr. Walton raises five issues in his brief. In them, he challenges the summary denial of claims twelve, fifteen, nineteen, and twenty of his amended postconviction motion and the denial after an evidentiary hearing of claims one and ten of that motion. I agree with the majority that we should affirm the postconviction court’s order denying relief on each of these grounds. I dissent from the portion of the opinion that reverses the postconviction court’s denial of claims two, three, five, six, seven, eight, nine, and twenty-four because Mr. Walton has not argued that the summary denial of those claims was erroneous.

Typically, an appellant who wants the court to consider an issue must present argument regarding that issue in the initial brief; otherwise, the court will view it as waived or abandoned. See Chamberlain v. State, 881 So. 2d 1087, 1103 (Fla. 2004) (stating that because the appellant failed to advance an argument in his brief, the court would consider it abandoned); Hall v. State, 823 So. 2d 757, 763 (Fla. 2002) (stating

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that the petitioner was “procedurally barred” from making an argument in the reply brief that he did not raise in the initial brief); Bilotti v. State, 27 So. 3d 798 (Fla. 2d DCA 2010) (agreeing that claims not raised in postconviction appellant’s initial brief were abandoned); Ward, 19 So. 3d at 1061 (concluding that issues presented to the postconviction court but not addressed in the appellant’s brief were abandoned); Watson, 975 So. 2d at 573 (stating that in a postconviction appeal, appellate courts traditionally do not review claims that are not raised and fully argued in the appellant’s brief). Because Mr. Walton’s brief contains no argument pertaining to claims two, three, five, six, seven, eight, nine, and twenty-four, I do not agree that we should consider whether they were erroneously denied or whether Mr. Walton should have been allowed to amend them. Additionally, because Mr. Walton’s brief contains no argument regarding these claims, the State, which filed an answer brief addressing each of Mr. Walton’s arguments, has not had an opportunity to address the appropriateness of reversing as to these claims. In other words, we are reversing the denial of a handful of claims without being asked to do so by the appellant, without giving the State an opportunity to address whether we should, and without any indication from the appellant that he wants to amend these claims or that he would be able in good faith do so.

We find ourselves in this position because of the language used in the rules governing postconviction appeals. When a rule 3.850 motion has been summarily denied, the appeal proceeds under Florida Rule of Appellate Procedure 9.141(b)(2), which does not require the appellant to file a brief.⁵ See Fla. R. App. P. 9.141(b)(2)(C).

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Consequently, the appellate court necessarily reviews the denial of each of the appellant’s claims to determine whether the record “shows conclusively that the appellant is entitled to no relief.” Fla. R. App. P. 9.141(b)(2)(D). However, where a defendant’s motion is denied after an evidentiary hearing, the appeal proceeds under rule 9.141(b)(3). Under that rule, the defendant is obligated to file a brief. See Fla. R. App. P. 9.141(b)(3)(C).⁶

Nothing in rule 9.141(b)(3)(C) prevents appellants from arguing issues pertaining to claims that were summarily denied, and in fact, in this case Mr. Walton did just that. Nevertheless, as alluded to by the majority, this court has a “practice” of reviewing summarily denied claims in appeals after an evidentiary hearing regardless of whether the appellant has raised their denial as an issue in his brief. This practice is based on the belief that although the rules refer to appeals from a “motion” that is denied either summarily or after an evidentiary hearing, the rules should be understood to govern appeals from claims, not motions. This belief is in turn based on the perception that reading the rule literally unfairly creates two classes of summarily denied claims: those that get reviewed automatically and those that do not. The assumption

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that this was not the intent of the rules committee and that the wording in the rule was simply an oversight may be correct; however, the perceived unfairness in this arrangement is not compelling enough to persuade me to ignore the plain language of the rule. In my view the disparate treatment is justified given that in the latter case the appellant is obligated to file a brief.

Here, Mr. Walton directed our attention to summarily denied claims he thought should not have been denied, while saying nothing about other claims. I see no reason why we should not conclude that he has abandoned those claims. On the contrary, a recent case from this court, Bilotti, 27 So. 3d 798, found that claims not raised in a postconviction appellant’s initial brief were abandoned. Bilotti represents a departure from the “practice” referenced by the majority. I would follow Bilotti and affirm the denial of all of Mr. Walton’s claims.

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

—————

Notes:

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Courtesy of David Edelstein

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