Florida Criminal Law Opinions

W.Z., A CHILD, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-1656.

District Court of Appeal of Florida, Fifth District.

Opinion filed April 16, 2010.

Appeal from the Circuit Court for Orange County, Alan S. Apte, Judge.

James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

W.Z. was adjudicated delinquent and placed on six months probation after having entered a nolo contendere plea to simple battery. As a part of the disposition order, the trial court ordered W.Z. and his parents to pay an attorney’s fee of $50.00 for services rendered to W.Z. by the public defender’s office. W.Z. and his parents were further ordered to pay the costs of two mental competency evaluations which, upon motion by the public defender’s office, had been ordered by the trial court. Payment of

Page 2

the attorney’s fees and mental competency evaluation costs was made a condition of probation. On appeal, W.Z. challenges the assessment of these particular fees and costs on the grounds that they were not authorized by statute. We affirm as to the imposition of attorney’s fees, but reverse the trial court’s assessment of costs for the competency evaluations.¹

Contrary to W.Z.’s assertion, the Legislature has authorized the assessment of attorney’s fees against a child who has been found guilty of committing a criminal act and who received the assistance of the public defender’s office. Section 985.033(1), Florida Statutes (2009), provides that a child is entitled to representation by legal counsel at all stages of delinquency court proceedings. If the child and the parents (or other legal guardian) are unable to employ private counsel, the court is required to appoint counsel to represent the child. Significantly, section 985.033(1) expressly makes the costs of representation provisions set forth in section 938.29 applicable to juvenile delinquency proceedings:

Determination of indigence and costs of representation shall be as provided by ss. 27.52 and 938.29.

Pursuant to section 938.29(1)(a), Florida Statutes (2009), a defendant who has been determined to be guilty of a criminal act and who has received the assistance of the public defender’s office shall be liable for payment of attorney’s fees. The court is required to impose the attorney’s fees “notwithstanding the defendant’s present ability to pay.” § 938.29(1)(b), Fla. Stat. (2009). Furthermore, the court is expressly authorized to make payment of attorney’s fees a condition of probation. § 938.29(1)(c). The

Page 3

obligation to pay the child’s attorney’s fees may also be placed on the child’s parents or legal guardian. § 985.033. We conclude that there was no error in the disposition order with regard to the assessment of attorney’s fees.

By contrast, we believe that the Legislature has not authorized a trial court to assess the costs for mental competency evaluations against an indigent child. Mental competency evaluations in juvenile delinquency proceedings are governed by section 985.19, which provides in part:

(1) If, at any time prior to or during a delinquency case, the court has reason to believe that the child named in the petition may be incompetent to proceed with the hearing, the court on its own motion may, or on the motion of the child’s attorney or state attorney must, stay all proceedings and order an evaluation of the child’s mental condition.

* * *(b) All determinations of competency shall be made at a hearing, with findings of fact based on an evaluation of the child’s mental condition made by not less than two nor more than three experts appointed by the court . . . Experts appointed by the court to determine the mental condition of a child shall be allowed reasonable fees for services rendered. . . The fees shall be taxed as costs in the case.

(emphasis added).

The State relies on the final sentence in section 985.19(1)(b) to support its contention that the costs for the competency evaluation were properly assessed against W.Z. and his parents. However, this sentence does not specify against whom (or what entity) these fees are to be taxed. As correctly observed by W.Z., the term “taxed as costs in the case,” does not, by itself, lay responsibility for payment on the child and/or

Page 4

his parents. For example, section 27.0061, Florida Statutes (2000),² provides that the cost of the transcript for a criminal proceeding from which an appeal is taken is to be “taxed as costs in the case.” Yet, it is well-established that the costs for such transcripts are to be borne by the government and not by an indigent appellant. See, e.g., Ocer v. State, 840 So. 2d 1162 (Fla. 5th DCA 2003); Colonel v. State, 723 So. 2d 853 (Fla. 3d DCA 1998). We conclude that section 985.19(1)(b) fails to expressly authorize the assessment of competency evaluation costs against an indigent juvenile.

The State next argues that section 938.29 supports the assessment of these costs against W.Z. However, unless the Legislature expressly makes a cost or surcharge imposed by Chapter 938 applicable to juvenile delinquency cases, such cost or surcharge may not be imposed in a delinquency proceeding. V.K.E. v. State, 934 So. 2d 1276 (Fla. 2006); see also T.L.S. v. State, 949 So. 2d 290 (Fla. 5th DCA 2007). Here, the Legislature has not done so.

Finally, the State argues that pursuant to Office of State Attorney for Eleventh Judicial Circuit v. Polites, 904 So. 2d 527 (Fla. 3d DCA 2005), W.Z. is obligated to pay the costs of the evaluations because he is the party who requested them. However, Polites is not supportive of the State’s position. In Polites, petitions for certiorari were

Page 5

filed by the state attorney’s office and/or the public defender’s office in four separate cases challenging court orders requiring the state attorney and the public defender to pay for certain court-ordered mental competency evaluations. The Polites court held that the state court system, rather than the Office of the State Attorney or the Office of the Public Defender, was required to pay the costs of the competency evaluations where the evaluations were ordered on the court’s own motion. None of these cases arose from a juvenile delinquency proceeding.³ More importantly, the issue was whether the court, the state attorney’s office, or the public defender’s office was responsible for the payment of the disputed costs. There was no contention that the indigent defendants themselves were obligated to pay.

AFFIRMED, in part; REVERSED, in part; Costs for Mental Competency Evaluations STRUCK.

MONACO, C.J. and GRIFFIN, J., Concur.

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

DEMETRICE T. LONGLEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-4117.

District Court of Appeal of Florida, Fifth District.

Opinion filed April 16, 2010.

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

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

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

PALMER, J.

Demetrice T. Longley (defendant) appeals his judgments and sentences which were entered by the trial court after a jury found him guilty of committing the crimes of conspiracy to deliver cocaine and possession of cocaine. Determining that the trial court erred in issuing its jury instruction with regard to the conspiracy count, we reverse and remand for a new trial on that conviction. We affirm as to the possession of cocaine conviction.

Page 2

The defendant was convicted based upon a drug transaction set up by a confidential informant, Ewanda Stephens. The defendant approached Stephens and offered to sell drugs to anyone that she might know who wanted them. Thereafter, Stephens contacted the police department regarding the defendant’s offer and agreed to work as a confidential informant. Stephens then contacted the defendant and set up a drug sale to a representative of the police department. The drugs were procured by Jerry Brown. On the day of the arranged sale, the defendant and Brown arrived at Stephens’ hotel room. Brown stayed in the hotel room while the defendant and Stephens went to meet the police department representative at his hotel room. The defendant waited in his vehicle while Stephens went into the hotel room. At that time, the defendant was arrested. Based on this evidence, the jury found the defendant guilty of conspiring to deliver cocaine and possession of cocaine.

The defendant contends that the trial court committed fundamental error in instructing the jury on the charge of conspiracy to deliver cocaine. We agree.

The trial court instructed the jury as to an element of the conspiracy charge as follows:

In order to carry out the intent, Demetrice Longley agreed, conspired, combined, confederated with Jerry L. Brown or Ewanda Stephens to cause delivery of cocaine to be committed either by them or by one of them or by some other person.

(Emphasis added). This instruction improperly authorized the jury to find the defendant guilty of conspiracy solely based upon conspiring with Stephens, who was a confidential informant. See Spera v. State, 665 So. 2d 550 (Fla. 2d DCA 1995)(stating that there must be an agreement between the defendant and one other party who is not a law enforcement officer); O’Connor v. State, 590 So. 2d 1018, 1019 (Fla. 5th DCA

Page 3

1991)(considering a confidential informant to be a police agent for purposes of a conspiracy charge). Because the jury returned a general verdict form, it is unknown whether the jury found the defendant guilty of conspiring with Stephens or with Brown. This situation is analogous to cases involving erroneous jury instructions involving a theory of a crime not charged in the information. See Trahan v. State, 913 So. 2d 729, 729 (Fla. 5th DCA 2008) (holding that reversible error was committed because the general verdict form made it impossible to determine whether the jury found the defendant guilty of the charged acts or those acts in the jury instructions that were not charged in the information).

The State contends that no error occurred because the initial agreement between the defendant and Stephens occurred before Stephens was acting as a police agent. We disagree. No agreement existed between the defendant and Stephens to enter into a drug transaction until after Stephens contacted the police.

The State also argues that this court should interpret the current conspiracy statute, which was amended in 1975, to allow a defendant to be convicted for conspiring with a law enforcement agent (the unilateral conspiracy approach). The State’s argument is unpersuasive because Florida courts have continued to hold that Florida adheres to the bilateral conspiracy approach; thus, a defendant cannot be found guilty of conspiring with a law enforcement officer. See Spera, 656 So. 2d at 551; O’Connor, 590 So. 2d at 1019.

Lastly, the State argues that the jury instruction is similar to an instruction given in Isom v. State, 619 So. 2d 369 (Fla. 3d DCA 1993). However, this case is distinguishable. In Isom, the Third District held that the jury instruction did not amount

Page 4

to fundamental error because the police agent’s conduct was not a material issue with respect to the particular conspiracy count. Id. at 374-75. Here, as the State properly concedes, the State did rely on the agreement between the defendant and Stephens to prove the conspiracy charge.

Accordingly, we reverse the defendant’s conviction for conspiracy to deliver cocaine and remand for a new trial on that charge. We affirm the defendant’s judgment and sentence for possession of cocaine.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and JACOBUS, JJ., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

HEATH A. DEMARCO, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-4131.

District Court of Appeal of Florida, Second District.

Opinion filed April 16, 2010.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Manatee County, Gilbert A. Smith, Jr., Judge.

NORTHCUTT, Judge.

Heath A. Demarco seeks review of a final order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Demarco raises one claim of ineffective assistance of counsel for counsel’s failure to raise the issue of Demarco’s competency to participate in the legal proceedings. The postconviction court construed Demarco’s claim as one raising trial court error in failing to make a determination of incompetency and found the claim procedurally barred. See

Page 2

Whitfield v. State, 923 So. 2d 375, 379 (Fla. 2005); Marshall v. State, 854 So. 2d 1235, 1248 (Fla. 2003). However, Demarco’s claim appears on its face to be an ineffective assistance of counsel claim, and the narrow argument that counsel was ineffective for failing to raise a defendant’s competency is cognizable in a rule 3.850 motion. See Carroll v. State, 815 So. 2d 601, 610 (Fla. 2002); Schultheis v. State, 12 So. 3d 811, 812 (Fla. 1st DCA 2009). Accordingly, we reverse the denial of Demarco’s motion and remand for further proceedings.

Reversed and remanded.

LaROSE 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

CARY MICHAEL LAMBRIX, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC08-64.

Supreme Court of Florida.

April 15, 2010.

An Appeal from the Circuit Court in and for Glades County, R. Thomas Corbin, Judge — Case No. 83-12 CF.

Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, Litigation Director, and Craig J. Trocino, Staff Attorney, CCRC-South, Fort Lauderdale, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

Cary Michael Lambrix was convicted of two counts of first-degree murder and sentenced to death for the 1983 murders of Clarence Moore and Aleisha Bryant. This Court affirmed the convictions and sentences of death in Lambrix v. State, 494 So. 2d 1143 (Fla. 1986). This case is now before the Court on appeal from an order denying a successive motion for postconviction relief. Among other claims raised, Lambrix asserted two claims that were the subject of an evidentiary hearing: that the main witness against him at trial, Frances Smith,¹ had a sexual relationship with one of the State’s investigators and that another witness, Deborah Hanzel, recanted her trial testimony. The trial court, following an evidentiary hearing on both of these issues, rejected the claim that Smith had a sexual relationship with an investigator and concluded that Hanzel’s recantation was unreliable. We affirm the trial court’s order denying postconviction relief as to these claims, as well as all other claims raised, for the reasons more fully explained in this opinion.

GENERAL INTRODUCTION

This death case, which has been in the judicial system for a substantial period of time, has a lengthy procedural history. The first trial ended in a mistrial after the jury could not agree on a verdict. A second trial was held before a different judge, Judge Richard M. Stanley, and the jury found Lambrix guilty of both counts of murder. After a penalty phase hearing, the jury recommended a sentence of death by a vote of ten to two for the murder of Aleisha Bryant and by a vote of eight to four for the murder of Clarence Moore. The trial court sentenced the defendant to death, after finding five aggravating circumstances² and no mitigation in regard to the murder of Moore and four aggravating³ and no mitigating circumstances in regard to the murder of Bryant.

On appeal, this Court discussed the relevant facts of the underlying crime:

On the evening of February 5, 1983, Lambrix and Frances Smith, his roommate, went to a tavern where they met Clarence Moore, a/k/a Lawrence Lamberson, and Aleisha Bryant. Late that evening, they all ventured to Lambrix’ trailer to eat spaghetti. Shortly after their arrival, Lambrix and Moore went outside. Lambrix returned about twenty minutes later and requested Bryant to go outside with him. About forty-five minutes later Lambrix returned alone. Smith testified that Lambrix was carrying a tire tool and had blood on his person and clothing. Lambrix told Smith that he killed both Bryant and Moore. He mentioned that he choked and stomped on Bryant and hit Moore over the head. Smith and Lambrix proceeded to eat spaghetti, wash up and bury the two bodies behind the trailer. After burying the bodies, Lambrix and Smith went back to the trailer to wash up. They then took Moore’s Cadillac and disposed of the tire tool and Lambrix’ bloody shirt in a nearby stream.

On Wednesday, February 8, 1983, Smith was arrested on an unrelated charge. Smith stayed in jail until Friday. On the following Monday, Smith contacted law enforcement officers and advised them of the burial.

A police investigation led to the discovery of the two buried bodies as well as the recovery of the tire iron and bloody shirt. A medical examiner testified that Moore died from multiple crushing blows to the head and Bryant died from manual strangulation. Additional evidence exists to support a finding that Lambrix committed the two murders in question.

Lambrix v. State, 494 So. 2d 1143, 1145 (Fla. 1986). Some of the additional evidence included testimony by Deborah Hanzel, who met Lambrix after the murders and saw him in a black Cadillac. She and her boyfriend, Preston Branch, helped Lambrix retrieve some of his possessions from Lambrix’s trailer and on the way back home, Lambrix offered to show them where two bodies were buried and made incriminating statements. On appeal, Lambrix raised five issues.⁴ This Court affirmed the convictions and sentences of death. 494 So. 2d at 1148.

A death warrant for Lambrix was issued, and his execution was scheduled for November 30, 1988. Lambrix filed a motion for postconviction relief in the trial court and a petition for writ of habeas corpus in this Court. In his habeas petition, Lambrix asserted that his appellate counsel was ineffective in failing to argue numerous issues.⁵ This Court denied habeas relief. See Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988). During this time, Lambrix’s motion for postconviction relief was also proceeding before the circuit court. After the circuit court summarily denied postconviction relief, Lambrix appealed this decision, raising two claims.⁶ This Court denied relief. See Lambrix v. State, 534 So. 2d 1151 (Fla. 1988). Lambrix then filed a second petition for writ of habeas corpus with the trial court, which was summarily denied. On appeal, Lambrix raised one issue: that his collateral counsel was ineffective for failing to raise a claim of juror misconduct in his prior motion for postconviction relief. This Court again denied relief. Lambrix v. State, 559 So. 2d 1137 (Fla. 1990). Lambrix also filed a second motion for postconviction relief in the circuit court, which was summarily denied because “his claims were without merit and procedurally barred as untimely and successive or abusive.” Lambrix v. State, 698 So. 2d 247, 248 (Fla. 1996). In affirming the summary denial, this Court concluded that Lambrix was untimely in presenting the claim that he should have been allowed to represent himself in postconviction proceedings, particularly since Lambrix waited six years to raise this claim. Id. at 248.

Lambrix also filed postconviction attacks in the federal courts. He filed a federal habeas petition, raising numerous claims including whether jury instructions on HAC and CCP violated Espinosa v. Florida, 505 U.S. 1079 (1992). See Lambrix v. Dugger, No. 88-12107-CIV-Zloch (S.D. Fla. May 12, 1992), aff’d sub nom. Lambrix v. Singletary, 72 F.3d 1500 (11th Cir. 1996), aff’d, 520 U.S. 518 (1997). Lambrix’s Espinosa claim was eventually denied.⁷

As to the remaining issues, the Eleventh Circuit then affirmed the denial of relief of Lambrix’s federal habeas corpus petition after an evidentiary hearing. Lambrix v. Singletary, 72 F.3d 1500 (11th Cir. 1996). The Eleventh Circuit denied relief without further discussion as to certain claims.⁸ After analysis, the Eleventh Circuit denied Lambrix’s claim that he received ineffective assistance during the sentencing phase of his trial because counsel failed to investigate and present mitigating evidence of Lambrix’s alcoholism and drug dependence and evidence that Lambrix had been subject to sexual and physical abuse as a child. Lambrix, 72 F.3d at 1504-06. The Eleventh Circuit also denied Lambrix’s claim that appellate counsel rendered ineffective assistance by failing to present certain sentencing issues, that his second trial conducted after the first trial ended in mistrial was barred by double jeopardy, and that Lambrix was denied his fundamental right to testify. Id. at 1506-08.

Lambrix has filed numerous pro se extraordinary writ petitions that this Court has either denied or dismissed.⁹ During postconviction proceedings and before this Court, Lambrix also filed a pro se complaint against some of his attorneys. He also previously sought to have this entire Court disqualified because Chief Justice Quince is recused. In his most recent filing, Lambrix filed a pro se civil rights action pursuant to 42 U.S.C. §1983 against his attorneys, Governor Charlie Crist, Clerk of Court Thomas Hall, Chief Justice Quince, and others, asserting that there is a conspiracy to deny meritorious claims against death penalty defendants. Counsel for Lambrix consequently filed a motion to withdraw, asserting that this action creates a conflict. Lambrix then filed a pro se motion waiving any potential conflict for the limited scope of permitting oral argument to continue. This Court denied counsel’s motion to withdraw.

THE PRESENT PROCEEDINGS

This current successive postconviction litigation was pending in the circuit court for a substantial period of time based on changes in judges, changes in counsel, and various amendments to the postconviction motion that occurred after counsel discovered new evidence. Ultimately, after several evidentiary hearings, the postconviction court denied relief on all of Lambrix’s claims. On appeal, Lambrix raises five issues: (1) whether the State withheld material exculpatory or impeachment evidence involving a sexual relationship between witness Frances Smith and State Attorney Investigator Robert Daniels in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) whether an important witness (Deborah Hanzel) recanted her trial testimony; (3) whether the circuit court failed to allow a full and fair hearing; (4) whether there was judicial bias during the retrial proceedings; and (5) whether Lambrix is entitled to a new trial because he is actually innocent.¹⁰

Alleged Sexual Relationship

In his first claim, Lambrix alleges that the State suppressed evidence that would have impeached a key witness: Frances Smith. In support, he asserts that new evidence shows Smith had a sexual affair with State Attorney Investigator Robert Daniels and that she was given an undisclosed plea deal in exchange for her testimony. After an evidentiary hearing, the trial court determined that no sexual relationship between Smith and Daniels occurred and that there was no undisclosed plea deal.

The two most important witnesses to this claim (Smith and Daniels) presented diametrically opposed testimony as to whether a sexual relationship ever occurred. Specifically, Smith testified at the evidentiary hearing that while Lambrix was being prosecuted, Smith had a “one-night stand” with the State Attorney’s investigator, Daniels, who also served as a pilot for the State Attorney’s Office. She asserted that she was not attracted to him, that it was not a romantic affair, and that she was “definitely not” proud of her behavior. She testified that after Daniels flew her down during one of her trips, he called her at her hotel room and asked her to join him in his hotel room. They were both probably drinking and had sex just the one time. She could not recall when the affair occurred, but it was during one of the trials against Lambrix—well after she first cooperated in the investigation and had already given numerous statements as to the events surrounding the crime. She did not tell anyone else about this incident and did not consider this to be an affair or a relationship.

Smith explicitly denied that anyone at the State Attorney’s Office asked her to change her story and denied that she modified her testimony against Lambrix after her sexual encounter. Smith acknowledged that she had no interest in seeing Lambrix released from prison or obtaining a new trial.

Smith married Douglas Schwendeman about two years after the second trial concluded. Schwendeman also testified at the hearing, stating that Smith told him that during the trial proceedings, she had an affair with an investigator and pilot named Bob after they flew down and she stayed in his room. He did not tell anyone about this conversation until 2004.

Investigator Daniels also testified. When he first met Smith, he was a little “jaundiced” about her because he believed she had some sort of involvement in the murder. Based on her cooperation, he and his current wife (who was an investigator with him at the time) were able to find the victims’ bodies. Daniels explicitly stated that he did not have sex with Smith and that he “certainly did not” ask her to change her testimony. During the second trial, he did stay at a hotel in Moore Haven, but did not recall staying at a hotel at any other time. He further provided and discussed his flight logs, which documented the times that Daniels picked up Smith and other witnesses.

The postconviction court found that no affair occurred, based on the following findings:

— Frances Smith Ottinger

Frances Smith, n.k.a. Frances Ottinger, was living with the Defendant at the time of the homicides. She was a witness for the State at both trials in 1983 and 1984. Her testimony at the trials and every recorded statement or deposition she has made in the past were received in evidence at the hearing.

Ms. Ottinger testified that she had one sexual encounter with Mr. Daniels, although she cannot state where or when it occurred in relation to the pretrial investigation or either of the two trials. She does not know when it occurred. She testified that she remembered only that it happened in a hotel. When questioned about details of the encounter, Ms. Ottinger did not remember any significant facts. She repeatedly answered that she “does not recall,”" does not remember” or “does not know” about the time and place of the encounter. She could not state the name [of] the town in which the hotel was located.

Ms. Smith answered each question slowly and deliberately. Her responses were sometimes halting. With nearly every answer that she gave, she paused for a significant time between the question and the answer. She related that she takes several medications for anxiety and depression.

The Court has listened carefully to what Ms. Ottinger said and how she said it. The Court observed how she acted and the Court also heard what she said. Her testimony is not credible, when considered in light of all of the evidence.

— Robert M. Daniels

Robert Daniels also testified. Mr. Daniels was employed as an investigator with the State Attorney’s Office of the Twentieth Judicial Circuit from 1980 through 1994. He was also a pilot for that office during those years. Throughout his tenure, he maintained records of the flights he made. Copies of his flight logs were received in evidence. At the time of the prosecution of the Defendant, Mr. Daniels was a lead investigator, and his supervisor was William McQuinn. The Chief Investigator at the time of the Defendant’s prosecution was Ralph Cunningham, now deceased.

Mr. Daniels testified that he first became involved in the case in 1983 after the State Attorney’s Office was notified by FDLE that it had Ms. Frances Smith, now Ottinger, in their custody and that she might be involved in the double homicide that is the subject of this case. After that notification, Mr. Daniels flew to Tampa and picked up FDLE Agent Connie Smith (no relation to Frances Smith), and Frances Smith’s brother. Mr. Daniels flew them to the Fort Myers area so that they could talk to the law enforcement officers who were investigating the homicides.

On cross-examination by the State, Mr. Daniels expressly denied any sexual relationship with Ms. Ottinger. Mr. Daniels was at all times forthright and direct. He did not evade the questions posed to him, and he answered each question promptly and without delay. He never wavered in his denial of a sexual encounter between himself and Ms. Ottinger. He said that he did not stay in a hotel during the pendency of the first trial, but during the second trial he did stay in a hotel in Moore Haven with the prosecution team.

In addition, the State introduced into evidence copies of the flight logs maintained by Mr. Daniels throughout his tenure at the State Attorney’s Office. These records set forth the details of the flights Mr. Daniels made as a pilot while working for the State Attorney’s Office. The records tend to corroborate Mr. Daniels’s denial of a sexual encounter with Ms. Ottinger, although they do not negate the possibility of an encounter.

— Doug Schwendeman

The only other witness with any knowledge that might bear upon the alleged sexual encounter between Ms. Ottinger and Mr. Daniels was Ms. Ottinger’s ex-husband, Doug Schwendeman. Mr. Schwendeman testified for the Defendant that he and Ms. Ottinger were married on May 31, 1986. He testified that Ms. Ottinger told him just prior to their marriage that she had one and perhaps two sexual encounters with a “pilot” named “Bob” at sometime during the prosecution of the Defendant.

That testimony notwithstanding, both the State and defense stipulated, at pages 151, 152, and 153 of the transcript of the hearing of July 19 and 20, 2006, that Ms. Ottinger, if called to the stand again, would testify consistently with her deposition taken January 1, 2006. At that time she denied ever telling Mr. Schwendeman about the alleged sexual encounter with Mr. Daniels.

The circumstances surrounding Mr. Schwendeman’s testimony about the admission of the encounter by Ms. Smith to Mr. Schwendeman are suspect. Mr. Schwendeman kept this information to himself for 18 years, from before May of 1986 until 2004. Ms. Ottinger and Mr. Schwendeman had a difficult divorce proceeding. Finally, Mr. Schwendeman admitted on cross-examination to having been convicted in 1998 of six counts of sexual abuse on Ms. Ottinger’s children, as well as domestic violence against Ms. Ottinger.

The testimony of Mr. Schwendeman, offered to rebut a claim of recent fabrication by Ms. Ottinger, is unpersuasive and did not lend any clarity to the vagueness of Ms. Ottinger’s testimony.

. . . .

The Court finds that Ms. Ottinger’s testimony is not credible and that Mr. Daniels’s testimony is credible. The testimony of Mr. Schwendeman is unpersuasive on the issue before the Court.

The Court finds that the alleged sexual encounter between Ms. Ottinger and Mr. Daniels did not occur.

As is clear from the trial court’s review of the testimony and its detailed order, the trial court carefully weighed the credibility of the witnesses, ultimately concluding that no sexual encounter between Frances Smith and Robert Daniels occurred. When the postconviction court rules after holding an evidentiary hearing, this Court “review[s] the trial court’s findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence.” Green v. State, 975 So. 2d 1090, 1100 (Fla. 2008). Appellate courts do not “reweigh the evidence or second-guess the circuit court’s findings as to the credibility of witnesses.” Nixon v. State, 2 So. 3d 137, 141 (Fla. 2009) (quoting Brown v. State, 959 So. 2d 146, 149 (Fla. 2007)). “[W]e review the trial court’s application of the law to the facts de novo.” Green, 975 So. 2d at 1100.

We conclude that there is no basis in the record to reject the trial court’s factual finding that no sexual encounter occurred between Smith and Daniels. The trial court evaluated the substance of Smith’s testimony, concluding that Smith was vague as to when the alleged one-night relationship occurred and that her ex-husband’s testimony was not credible. The trial court provided its reasoning in detail. The court evaluated Daniels’ explicit denial of a sexual relationship and found his testimony in this regard was credible and consistent with the flight logs.

However, even if the circuit court had accepted the testimony that a one-time sexual encounter had occurred, we would conclude that Lambrix cannot show prejudice, which is the third critical prong of a Brady claim. To meet the requirements of Brady, Lambrix must show that (1) favorable evidence—either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Way v. State, 760 So. 2d 903, 910 (Fla. 2000). To meet the materiality prong, the defendant must demonstrate “a reasonable probability that the jury verdict would have been different had the suppressed information been used at trial.” Smith v. State, 931 So. 2d 790, 796 (Fla. 2006) (citing Strickler, 527 U.S. at 289, 296). A reasonable probability is a probability sufficient to undermine our confidence in the outcome. See Way, 760 So. 2d at 913; see also Strickler, 527 U.S. at 290.

An affair between the State’s key witness and the state attorney investigator would be considered favorable evidence. Evidence as to a sexual affair between these witnesses could be used to impeach both Smith and Daniels, because it could be a basis as to why Daniels focused his investigation on Lambrix (as opposed to Smith, who was initially arrested while driving the victim’s car).

However, Lambrix cannot demonstrate prejudice—that this suppressed evidence was sufficient to undermine confidence in the outcome. Specifically, the record established that the affair could have only occurred at one time—during the second trial, when they both had hotel rooms in the same hotel. Thus, even if the evidence about the affair had been admitted as proper impeachment, the State would have been able to present Smith’s prior statements and testimony, which were consistent with Smith’s testimony at the second trial, in order to rebut any allegation that her testimony was recently fabricated.¹¹

In fact, Smith’s testimony from the second trial was substantially similar to statements that she had made at the beginning of the investigation and to the testimony she provided in the first trial. Lambrix raises aspects of the testimony that he asserts represent a change in her testimony. After reviewing these alleged discrepancies, we find that any differences as to the specific details were minor and that these details did not change in any respect the key evidence she provided regarding the night of the crime, including Lambrix’s confession to her and her assistance in helping Lambrix to bury the bodies. Further, during the evidentiary hearing, Smith again affirmed her prior testimony and neither recanted nor changed her testimony inculpating Lambrix.

Even if the subject of the alleged one-time affair could be the subject of cross-examination in an attempt to impeach Smith, there is no basis to conclude that the jury would have disregarded or not found credible the substantial testimony Smith provided as to the facts of the murders. Thus, Lambrix cannot establish the materiality prong of Brady—that confidence in the outcome is undermined. See Way, 760 So. 2d at 910.

As another part of the Brady claim, Lambrix asserts that there was an undisclosed plea agreement between Smith and the State.¹²

In the final order denying relief, the circuit court found:

In addition, there is no evidence before this Court that the State in any way participated in the various improprieties that have been alleged throughout these postconviction proceedings. There is no evidence of a plea deal with Ms. Ottinger, nor is there any evidence that the State was aware of any misconduct on the part of one of its investigators. Of course it goes without saying that because the Court has found that no such misconduct occurred, it is plain that the jury would never have heard about it at the time this case was tried.

There is competent, substantial evidence to support the finding that there was no undisclosed plea deal between the State and Smith, and accordingly we deny this aspect of the claim.

Alleged Recantation of Deborah Hanzel

In his second claim, Lambrix asserts that the postconviction court erred in failing to find that witness Deborah Hanzel recanted and that Smith and a state agent coerced her to lie. This claim is based on the newly discovered evidence of Hanzel’s recent testimony.

Hanzel was one of the witnesses who testified at both the initial trial and the second trial as to certain incriminating statements that Lambrix allegedly made. Specifically, she met Lambrix with her boyfriend, Preston Branch, and saw Lambrix drive a black Cadillac. Around February 12, 1983, she, Branch, and Lambrix drove to an abandoned trailer to help Lambrix gather some of his possessions. On the way back, Lambrix said that for $100, he could show her “where I killed two people and buried [them].” He later called her after a newspaper article stated that police were looking for Lambrix, and during that conversation, she asked him if it was true that he killed the victim for his car. Lambrix replied, “[T]hat was of the reason [sic].” Branch, who was with Lambrix and Hanzel when the statements were made, corroborated Hanzel’s testimony.

During successive postconviction proceedings, Hanzel was deposed in 1998 and stated that Lambrix never admitted that he killed anyone, which contradicted her trial testimony. During an evidentiary hearing, Hanzel again testified that Lambrix never stated that he killed two people and that she testified otherwise because police made her fearful of Lambrix. The trial court denied the claim, stating in pertinent part:

The Court has reviewed the transcript of the sworn statement given by Deborah Hanzel before trial, as well as the transcript of her trial testimony. The Court compared those transcripts with the testimony given at this evidentiary hearing. Even when taken in the light most favorable to the Defendant, perhaps all that counsel has proven is that Ms. Hanzel does not now have a very good memory of something that occurred nearly twenty years ago.

For example, Ms. Hanzel recalls today that the Defendant told her about buried bodies, but she now asserts that he did not say anything about killing them. Ms. Hanzel also states that she does not now remember “the phone calls” she received from the Defendant after the crimes were committed (although she testified about them at trial). Ms. Hanzel does not, however, now deny that the calls were placed.

In addition, Ms. Hanzel concedes that she remembers some things, but not others. She allowed that some statements she made which were recorded twenty years ago did not refresh her recollection, while at the same time asserting that she does not “recollect” that the Defendant confessed to the killings.

Upon evaluation of the testimony of Ms. Hanzel (and the other two witnesses who testified at the hearing), it is apparent that perhaps the only thing Ms. Hanzel knows for certain at this time is that twenty years ago she believed Mr. Lambrix killed two people and buried their bodies behind a trailer in Glades County, but now she does not.

At no time during this proceeding did Ms. Hanzel repudiate her prior testimony or otherwise acknowledge that she did not tell the truth at any time she was placed under oath in 1983 or 1984.

After the trial court denied the claim, but while the motion for rehearing was pending, Hanzel wrote a letter to the court that stated Lambrix never threatened her; rather, the police and Smith convinced her that Lambrix was a threat. In the letter, she further asserted that Smith told Hanzel that if Hanzel would “back up” Smith that Lambrix admitted the murders, they would no longer need to worry about him. In her letter, she further stated that she did not tell the truth at the most recent evidentiary hearing. Hanzel followed the letter with an affidavit to the same effect. The postconviction court ordered a further evidentiary hearing based on Hanzel’s latest statements. At this hearing, Hanzel testified that Lambrix never told her that he killed Bryant or Moore. Moreover, Hanzel testified that Smith stated Lambrix attacked Moore after Moore “went nuts.”

Lambrix also testified under oath at the evidentiary hearing to support Hanzel’s testimony regarding what Lambrix told Smith (that he had to hit the male victim after he “went nuts”). According to Lambrix, he told Smith the following account: after he invited both victims outside, Bryant and Moore began to fight, so Lambrix attempted to leave. On his way back, he heard a scream, grabbed a tire iron, and ran back. He saw Moore straddling Bryant and tried to push him off. Moore attempted to “come at [him],” so he continued to swing the tire iron at Moore until he realized that Moore “was down.” He denied that he ever admitted to killing either victim on purpose.

In its final order denying relief, the circuit court made the following findings as to Hanzel’s credibility:

With regard to Deborah Hanzel, the Court is presented with a confused witness who made equivocating statements about testimony she gave with respect to a double homicide that occurred well over twenty years ago. As the Court previously ruled on July 9, 2003, Hanzel’s testimony never met the legal requirements for a recantation.

The court then denied relief as follows:

With regard to Claim II (the Hanzel recantation) the Court finds that there is no credible evidence to support the Defendant’s allegations. The Court stands by its ruling previously made on July 9, 2003, and nothing that the Court has heard since has caused it to reach a contrary conclusion. Claim II is, one [sic] again, DENIED.

To set aside a conviction based on newly discovered evidence, Lambrix must meet two prongs: (1) the “asserted facts must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence;” and (2) “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Jones v. State, 591 So. 2d 911, 915-16 (Fla. 1991) (emphasis in original). In determining whether the evidence compels a new trial, the trial court must “consider all newly discovered evidence which would be admissible and must evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Tompkins v. State, 994 So. 2d 1072, 1086 (Fla. 2008) (internal quotation marks omitted) (quoting Jones, 591 So. 2d at 916), cert. denied, 129 S. Ct. 1305 (2009). As newly discovered evidence pertains to a recent recantation, this Court has stated:

Recantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial. In determining whether a new trial is warranted due to recantation of a witness’s testimony, a trial judge is to examine all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. “Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.” Only when it appears that, on a new trial, the witness’s testimony will change to such an extent as to render probable a different verdict will a new trial be granted.

Archer v. State, 934 So. 2d 1187, 1196 (Fla. 2006) (quoting Armstrong v. State, 642 So. 2d 730 (Fla. 1994)).

As this Court has noted repeatedly, recanted testimony is “exceedingly unreliable.” Heath v. State, 3 So. 3d 1017, 1024 (Fla. 2009); see also Kormondy v. State, 983 So. 2d 418, 438 (Fla. 2007); Archer, 934 So. 2d at 1196. When reviewing a trial court’s determination relating to the credibility of a recantation, this Court is “highly deferential” to the trial court and will affirm the lower court’s determination so long as it is supported by competent, substantial evidence. Heath, 3 So. 3d at 1024.

Having reviewed the full record and the postconviction court’s findings, we conclude that there is competent, substantial evidence for the court’s ruling. The statements that most strongly support Lambrix’s recantation claim were presented in Hanzel’s affidavit. However, when Hanzel was questioned about these statements at the second evidentiary hearing, she generally could not testify to those statements on her own and referred to the affidavit to “refresh” her recollection.

Further, even if Hanzel had not testified at trial that Lambrix stated he killed two people, the recantation would not be of such a nature that it would “probably produce an acquittal on retrial.” Hanzel never recanted her testimony that Lambrix offered to show her where two bodies were buried. Even without Hanzel’s testimony, there would still be the testimony of Branch that he heard Lambrix make statements similar to those to which Hanzel testified.

Moreover, Hanzel was not the main witness to testify against Lambrix. Even without her testimony, there would still be the testimony of Lambrix himself at this most recent evidentiary hearing that he struck one of the victims using a tire iron, although he denied that he intended to kill either victim. Further, there was other significant evidence at the trial that pointed to Lambrix as the perpetrator of these murders. This evidence included the following: Smith’s testimony regarding the murders and that Lambrix threatened her if she did not help him bury the bodies; Deputy Sheriff Ron Council’s testimony that he saw Lambrix and Smith with the victims on the night of the murders; John Chezum’s testimony that on February 6 around 2:30 in the morning, Lambrix drove up in a car that resembled the victims’ car and asked to borrow a shovel; and the victims were found buried near the trailer in which Lambrix was living. For the reasons above, Lambrix is not entitled to relief on this claim.¹³

Whether Lambrix Was Given a Full and Fair Hearing

In his third claim, Lambrix asserts that the postconviction court prevented Lambrix from presenting various witnesses who would have supported Hanzel’s recantation, thus denying him a full and fair evidentiary hearing. Specifically, Lambrix sought to have the following three categories of witnesses testify: (1) two forensic pathologists who would have explained the significance of the deficiencies that they found in Bryant’s autopsy; (2) an expert in police procedures and criminal investigations who would have discussed how an unbiased and objective investigation should have been conducted and how a sexual affair would have impacted an investigation; and (3) three additional witnesses who would have testified that the property where the murder occurred did not have a pond.

None of the general testimony of the expert witnesses or the lay witnesses would have been relevant to either the Brady or newly discovered evidence claims in this case. Accordingly, because the trial court did not abuse its discretion in refusing to admit this testimony, we deny this claim.

Alleged Judicial Bias

The fourth and last issue we address is Lambrix’s claim that newly discovered evidence established that his trial judge was biased.¹⁴ He based this claim on statements Judge Stanley made during a January 1997 evidentiary hearing in another death penalty case, which involved defendant Raleigh Porter. In that case, Judge Stanley overrode the jury’s recommendation of life and imposed a death sentence. Porter v. State, 723 So. 2d 191, 193 (Fla. 1998). The defendant in Porter subsequently learned, through a variety of sources, including the Clerk of the Circuit Court of Glades County, that Judge Stanley had made statements indicating his predisposition to sentence that particular defendant to death, even before the jury made its recommendation. Id. at 194. This Court vacated the death sentence based on the statements of actual judicial bias and remanded for a new penalty phase before an impartial judge. Id. at 197.

In this case, the defendant relies on specific statements Judge Stanley made during the Porter case, as well as testimony that Judge Stanley gave in that case pertaining to his general beliefs about the death penalty. The postconviction court summarily denied relief, holding in relevant part:

[T]his claim is legally insufficient because the motion does not allege any evidence of judicial bias in this case. The defendant bases this claim on the decision of Porter v. State, 723 So. 2d 191 (Fla. 1998) and the facts of judicial bias relied on by the supreme court in reaching its decision in that case. In this case, the state does not dispute any of the facts from the record in Porter. The trial judge in Porter was the same trial judge who tried this case. Porter was tried in November, 1978, and sentencing in that case was concluded in 1981 after the first sentencing order was reversed due to a procedural defect. This case was tried in February, 1984.

In Porter, the defendant’s motion alleged evidence of judicial bias against Mr. Porter, that is, statements of the trial judge in March 1995 to newspaper reporters and the affidavit of the clerk of court dated that same month which told of a conversation between the clerk and the trial judge before or during Mr. Porter’s trial in 1978. Once these allegations were developed by discovery and an evidentiary hearing, the supreme court found evidence of actual bias against Mr. Porter.

However, in this case, there is no evidence of bias against Mr. Lambrix alleged in the motion beyond the trial judge’s statements in the record in Porter to the effect that he favored the death penalty. Porter did not decide the trial judge was generally unable to be impartial in capital cases. Further, in Porter, the trial judge overrode the jury’s recommendation of the death penalty.

We affirm this ruling. In Lambrix’s successive postconviction motion, Lambrix confines his argument to very limited portions of Judge Stanley’s testimony in the Porter evidentiary hearing. As the trial court pointed out, although some of the trial judge’s statements indicate that he favored the death penalty, Lambrix did not point to any specific statements that were directed to his case and did not point to any statements that Judge Stanley was predisposed in Lambrix’s case to impose the death penalty. His argument rests on the assumption that because there is evidence to show that Judge Stanley was predisposed to sentence Porter to death, he was therefore predisposed to sentence all defendants to death.

We reject that argument. In Porter, we never held that the trial judge was unable to be impartial in all capital cases, but held only that Judge Stanley lacked the necessary impartiality as to the sentencing phase of Porter’s trial. Porter, 723 So. 2d at 198-99. This case does not involve a judicial override of a life recommendation or any statements attributable to Judge Stanley indicating a predisposition to sentence Lambrix to death. This Court has recognized that judicial misconduct in one case does not mean that courts must presume misconduct in all cases. See, e.g., Maharaj v. State, 778 So. 2d 944, 952 (Fla. 2000). Accordingly, we deny this claim and hold that Lambrix is not entitled to relief.

CONCLUSION

Accordingly, we affirm the circuit court’s denial of Lambrix’s successive motion for postconviction relief.

It is so ordered.

PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

QUINCE, C.J., recused.

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

—————

Notes:

—————

Courtesy of David Edelstein

Bookmark It

Hide Sites

S.B., a child, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-1837

District Court of Appeal of Florida, Fourth District.

April 14, 2010.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Peter D. Blanc, Judge, L.T. Case No. 08CJ006551AMB.

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.

PER CURIAM.

S.B., the defendant below, appeals from the trial court’s finding of guilt and withholding of adjudication as to one charge of resisting an officer without violence. He argues that the trial court should have granted his motion for judgment of dismissal because the State presented no evidence that he knew of the officers’ intent to detain him. We agree and reverse.

In a Petition for Delinquency, the State charged S.B. with resisting an officer without violence. The evidence presented by the State at the hearing on the Petition was that, on the night of the incident, two officers observed two juveniles, one of whom was S.B., walking though a small apartment complex. One of the officers testified that what drew his attention to the juveniles is that they were looking around and appeared to be scanning. At that point, according to that officer, he saw them walk over to a car. The officer further testified that he tried to shut his car door quietly, but apparently the juveniles heard the door close and they looked up and took off running. The second officer testified that when the juveniles saw him and his partner, they “did a one eighty and took flight on foot.” The first officer also testified that he followed the juveniles, who did not see him in pursuit. Finally, he explained that he subsequently found the juveniles, who were taken into custody.

After the State rested, S.B. moved for a judgment of dismissal, arguing that the State did not meet its burden to prove the case of resisting an officer without violence. The trial court denied the motion. The defense rested and renewed its motion for judgment of dismissal.

Page 2

Following the hearing, the trial court entered an order finding S.B. guilty. The trial court withheld adjudication and placed S.B. on juvenile probation. This appeal follows.

S.B. argues that the trial court erred in denying his motion for judgment of dismissal because the officers did not issue an order for him to stop and, thus, there was no evidence that he knew of the officers’ intent to detain him. We agree.

Because the standard of review that applies to motions for judgment of dismissal in a juvenile case is the same standard that applies to motions for judgment of acquittal in an adult criminal case, the juvenile court’s ruling is reviewed de novo. A.L.J. v. State, 12 So. 3d 873, 874 (Fla. 4th DCA 2009); J.P. v. State, 855 So. 2d 1262, 1264 n.1 (Fla. 4th DCA 2003). When moving for a judgment of acquittal, a defendant admits both the facts adduced, as well as every conclusion favorable to the State that a finder of fact could fairly and reasonably infer from the evidence. Ackon v. State, 14 So. 3d 1146, 1148 (Fla. 4th DCA 2009) (quoting Maglio v. State, 918 So. 2d 369, 374 (Fla. 4th DCA 2005)). Evidence is sufficient to sustain a conviction if a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the State. Horne v. State, 997 So. 2d 1262, 1264 (Fla. 4th DCA 2009).

The applicable statute, section 843.02, Florida Statutes (2008), provides as follows:

Whoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

In order to support a conviction for obstruction without violence, “the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So. 3d 1181, 1185-86 (Fla. 2009). Flight, standing alone, is not sufficient to form the basis of a charge for resisting without violence and, thus, the act of flight alone is not a criminal offense. 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 . . . .” Id. (citing H.H. v. State, 775 So. 2d 397, 398 (Fla. 4th DCA 2000)) (emphasis added).

Page 3

Here, like the defendants in Clark v. State, 976 So. 2d 1225 (Fla. 4th DCA 2008), and Parker v. State, 18 So. 3d 555 (Fla. 1st DCA 2008), although S.B. fled upon seeing the officers, there was no command to stop by the officers at the time S.B. began to flee. Also, one of the officers testified that he did not think that S.B. even knew he was being pursued. Thus, although the evidence may reflect that S.B. was aware that he had caught the officers’ attention when he began to flee, it does not prove that he had knowledge that the officers intended to detain him. Accordingly, the State failed to prove every element of the crime, and the trial court should have granted the motion for judgment of dismissal.

Reversed and remanded for entry of judgment of dismissal.

GROSS, C.J., POLEN and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Samuel Benzant, Appellant,
v.
The State of Florida, Appellee.

Case No. 3D07-1519.

District Court of Appeal of Florida, Third District.

Opinion filed April 14, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 00-39706-C, Spencer Eig, Judge.

Carlos J. Martinez, Public Defender, and Robert Godfrey and Valerie Jonas, Assistant Public Defenders, for appellant.

Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.

Before GERSTEN, COPE, and SUAREZ, JJ.

Page 2

COPE, J.

This is an appeal of Samuel Benzant’s convictions for first-degree murder and armed robbery. Defendant-appellant Benzant asserts claims of evidentiary error, but we conclude that affirmance is in order.

I.

The defendant was convicted of first-degree felony murder and armed robbery. The defendant was interviewed for four hours, then gave a taped-recorded confession, which when transcribed was forty-five pages in length. The defendant said that he and his codefendants originally planned to rob a market. They went there, but the robbery did not take place. The defendant and codefendants then went on to a house of prostitution, which they robbed. During the robbery, the defendant shot a customer, who later died of gunshot wounds.

In his brief, the defendant argues that the evidence of the defendants’ earlier attempt to rob the market was inadmissible but at oral argument withdrew that claim. The defense was correct in doing so. The evidence was admissible to show the defendant’s intent, namely that he and the codefendants intended to rob a market and when they were not able to do so, proceeded to the house of prostitution, not as customers, but with the intent to rob it. See Dorsett v. State, 944 So. 2d 1207, 1216 (Fla. 3d DCA 2006) (en banc) (other bad acts evidence admissible because relevant to a material fact at issue).

Page 3

II.

The remaining claim of error is that the trial court should have excluded that part of the taped confession in which the defendant answered the detective’s question, “Where did you get the gun from?” On the tape, the defendant explained that he had obtained the gun by breaking into a house.

The defense argued that this evidence should be excluded because in this statement, the defendant admitted to committing a residential burglary, which was a crime not charged in this case.

The State argued to the trial judge that the statement was admissible to rebut the defendant’s main defense. The defense claimed that the defendant’s confession was false. Although this was not a case involving an insanity defense, the detective had learned that the defendant took medication for a bipolar disorder. In cross-examination of the lead detective and replaying of the confession, the defense asserted that the detective had used leading questions during the taped statement and had suggested answers to some of the questions.

Given that defense, the State argued that this part of the defendant’s statement was admissible. The murder weapon was never recovered, and the detective had no way of knowing the source of the weapon. The State argued to the trial judge that the defendant’s supplying of such details contradicted the defense claim that the confession was false. The State said:

Page 4

[I]f there are going to be allegations, as clearly there are, and properly so, that Detective Arostegui did something wrong, then the defendant’s statement freely saying where he got it and how he got it, got the murder weapon, goes to, at least circumstantially, counteract that argument . . . .

The trial court acted within its discretion in refusing to require the State to redact this part of the defendant’s confession.

Assuming arguendo that there was any error, the admission of this evidence was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). A successful defense depended entirely on convincing the jury that the defendant’s confession was false. In the confession, the defendant had admitted that he and his codefendants had planned a robbery of a market, but when that proved not to be feasible, they went to a house of prostitution to rob it instead. During the encounter, a customer was shot, and the defendant admitted to being the shooter. The real issue was whether the jury believed that the defendant’s confession was false after listening to the testimony of the detective and the tape recording of the confession. The source of the weapon was mentioned once in the tape recording of the confession, and was never mentioned again in the trial. Assuming there was any error on this point, it was harmless beyond a reasonable doubt.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

TIMOTHY L. MOTES, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3881.

District Court of Appeal of Florida, Fourth District.

April 14, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Martin J. Bidwill, Judge, L.T. Case No. 07-8087 CF10A.

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

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

DAMOORGIAN, J.

Timothy Motes timely appeals his conviction and sentence for resisting arrest with violence. The issue on appeal is whether the trial court erred in denying Motes’s motion for judgment of acquittal on this charge. After reviewing this issue de novo, we conclude that the trial court did not err. See McGee v. State, 19 So. 3d 1074, 1076 (Fla. 4th DCA 2009) (a de novo standard of review applies to a motion for judgment of acquittal). We therefore affirm.

Motes was charged with battery on a law enforcement officer and resisting an officer with violence. The charges arose out of an officer’s attempt to evict Motes from his motel room. After the trial court denied Motes’s motion for judgment of acquittal on both charges, the jury found him guilty of resisting arrest with violence and not guilty of battery on a law enforcement officer.

Motes argues that he was entitled to a judgment of acquittal because the arresting officer’s warrantless entry into his motel room violated his Fourth Amendment right to privacy; thus, the State did not prove that the arresting officer was engaged in the lawful performance of a legal duty when Motes resisted arrest with violence. See § 843.01, Fla. Stat. (2007) (as an element of resisting arrest with violence, the State must prove that the officer was engaged in the lawful execution of a legal duty). The State responds that the arresting officer properly entered the motel room to evict the appellant pursuant to the motel manager’s instructions, and that there were exigent circumstances justifying the entry without a warrant.

Page 2

Where violence occurs during an arrest, and the defendant is charged with resisting an officer with violence, the State is not required to prove that the arrest was lawful. See § 776.051(1), Fla. Stat. (2007) (“A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.”); see also Tillman v. State, 934 So. 2d 1263, 1270 n.4 (Fla. 2006) (“In arrest situations, Florida courts have consistently read section 776.051(1) in pari materia with the offenses described in sections 784.07(2) and 843.01 and, in so doing, have not required the State to prove that the arrest was lawful.”), superseded by statute on other grounds, § 776.051(1), Fla. Stat. (2008); Carter v. State, 6 So. 3d 106, 107 (Fla. 4th DCA 2009).

Here, Motes was charged with resisting an officer by kicking and striking him during the arrest. The officer’s clothing displayed a Broward Sheriff’s Office logo and the officer had previously announced that he was a police officer. Pursuant to section 776.051(1), the appellant was not justified in resisting the arresting officer with violence regardless of the legality of the arrest.

Affirmed.

WARNER and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

LEON COOPER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-2492.

District Court of Appeal of Florida, Fourth District.

April 14, 2010.

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Bernard I. Bober, Judge, L.T. Case No. 94-16562 CF10E.

Leon Cooper, Indiantown, pro se.

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

DAMOORGIAN, J.

Appellant, Leon Cooper, appeals the trial court’s summary denial of his 3.800(a) motion to correct an illegal sentence in which he seeks resentencing due to a computation error in his sentencing scoresheet. In the proceedings below, the trial court denied Cooper’s motion, concluding that the error was so minimal that a correction would have only a de minimus effect and resentencing was unnecessary. Cooper argues that the trial court erred because his sentence of 288 months was based on miscalculations in his scoresheet. The State concedes that Cooper’s original scoresheet was incorrect and that Cooper’s maximum sentence under the corrected scoresheet is 285.5 months. Nonetheless, the State argues that the error is de minimus and, therefore, resentencing is not required. We disagree with the State’s position and reverse and remand the trial court’s summary denial of Cooper’s claim with instructions that Cooper be resentenced with a corrected sentencing scoresheet.

Ordinarily, if correcting an erroneous sentencing scoresheet results in an “essentially de minimus” change, a claim for resentencing is without merit where the corrected score still falls within the same sentencing bracket. See Colon v. State, 738 So. 2d 1023, 1024 (Fla. 4th DCA 1999); Brooks v. State, 969 So. 2d 238, 243 (Fla. 2007) (“[I]f the trial court could have imposed the same sentence using a correct scoresheet, any error was harmless.”).

In this case, Cooper’s sentencing scoresheet error was not de minimus because Cooper was sentenced to 288 months, but a corrected scoresheet permits a maximum sentence of only 285.5 months.

Page 2

Therefore, the trial court could impose a maximum sentence of only 285.5 months. See Brooks, 969 So. 2d at 243.

Accordingly, we reverse and remand for resentencing.

Reversed and Remanded.

FARMER and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

JONATHAN CLOWERS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-5732.

District Court of Appeal of Florida, First District.

Opinion filed April 13, 2010.

An appeal from the Circuit Court for Duval County, Michael R. Weatherby, Judge.

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

Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

KAHN, J.

Jonathan Clowers appeals his conviction and life sentence for first-degree murder and alleges error on four points: (1) the failure to appoint two experts to evaluate his competency to stand trial; (2) the denial of a motion for judgment of acquittal on the issue of premeditation; (3) improper prosecutorial comment; and (4) the imposition of a minimum mandatory term of life in prison.

Page 2

PROCEDURAL & FACTUAL BACKGROUND

The events from which this case arose took place in Jacksonville on October 23, 2005, where Clowers was scheduled to drop off his one-year-old son with the baby’s mother, Tiffany Satchel. That afternoon Ms. Satchel drove with her aunt, Alicia Harris, to an apartment belonging to appellant’s brother. Clowers drove from Fort Lauderdale with a friend, Melvin Coleman, to meet them.

Around 8:00 p.m. Ms. Satchel arrived at the apartment to find Clowers already there. Clowers handed the baby to Ms. Satchel, who moved to secure the child in her van. As she tried to enter the van, though, Clowers grabbed her arm and dragged her toward the center of the parking lot. Ms. Harris, who by this time had gotten out of the van, saw appellant had a gun. After some tense discussion or argument, appellant shot Ms. Satchel three times in the side of the head and threw her to the ground. Clowers then fired a final shot to the back of Ms. Satchel’s head. Appellant ran to his car and drove away with his friend, Coleman.

Coleman recalled that Ms. Satchel and Clowers were arguing in the moments before the shooting; he heard Ms. Satchel say, “Fuck that . . . I am going to take your baby and move away.” After the shooting, on the car trip back to Fort Lauderdale, Clowers said to Coleman, “Didn’t I tell you I was going to kill her?”

Page 3

The State formally charged Clowers with first-degree murder, accomplished by discharge of a firearm resulting in “death or great bodily harm,” in contravention of sections 782.04(1)(a) and 775.087(1) and (2), Florida Statutes. In the months before trial, defense counsel filed successive suggestions of mental incompetence to proceed, see Florida Rule of Criminal Procedure 3.210(b), requesting expressly that the trial court appoint two or more psychiatrists to determine appellant’s mental competence. The court appointed only one expert, Dr. William Meadows, to evaluate appellant. Twice the trial court held hearings to determine appellant’s competency, and twice on the strength of Dr. Meadows’ evaluation found appellant competent to proceed. Clowers filed a third suggestion of mental incompetence, but this time requested only that appellant be examined by “one or more” court-appointed experts. The trial court held a third hearing and again found appellant mentally competent to proceed.

At trial, appellant moved unsuccessfully for judgment of acquittal, arguing the State failed to prove premeditation. In closing argument, defense counsel conceded that appellant had committed the lesser offense of manslaughter. In turn, the prosecutor responded:

[W]hat is the defense trying to argue here? That this is just some domestic situation. . . . It’s not a big deal. This lady is 27 years old, you know, she happens to get shot four times in the back of the head but it’s just manslaughter. That’s what they want you to believe.

The trial court overruled defense counsel’s objection to the foregoing remarks.

Page 4

The jury found Clowers guilty as charged. The court sentenced Clowers to life in prison without parole, and, according to the written judgment and sentence, to a minimum mandatory term of life in prison pursuant to section 775.087, Florida Statutes. Appellant moved to correct the sentence, see Florida Rule Criminal Procedure 3.800(b), arguing the imposition of a minimum mandatory term of life is not authorized by section 775.087(2)(a)3. The trial court denied the motion.

ANALYSIS

We review the trial court’s interpretation of the Rules of Criminal Procedure de novo. See Jones v. State, 966 So. 2d 319 (Fla. 2007). If a trial court, upon motion of defense counsel, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court “shall order the defendant to be examined by no more than 3, nor fewer than 2, experts prior to the date of [a competency] hearing.” Fla. R. Crim. P. 3.210(b).

The State does not question the general rule that a trial judge errs where she fails to appoint at least two competency experts. See D’Oleo-Valdez v. State, 531 So. 2d 1347, 1348 (Fla. 1988) (holding there was “no doubt that the trial judge erred in failing to appoint at least two experts”). Similarly, appellant does not dispute that the failure to appoint at least two experts falls short of the level of fundamental error. See id. (holding that “failure to appoint a second expert to

Page 5

examine the defendant’s mental competency to stand trial is not fundamental error”). We find the issue unpreserved. Appellant cannot rely on the first two suggestions of mental incompetence to preserve this issue for appellate review. Not only did Clowers fail to object at any of the three competency hearings, he ultimately invited the trial court’s error, requesting appointment of just one mental health expert before the final proceeding. See Mairena v. State, 6 So. 3d 80, 86 (Fla. 5th DCA 2009) (holding failure to appoint two experts not preserved for review where defense counsel invited error by requesting only one); Green v. State, 598 So. 2d 313, 313-14 (Fla. 2d DCA 1992) (holding defendant acquiesced in appointment of single competency expert where, rather than object to appointment of only one, defense counsel informed trial judge counsel had report from single appointed expert indicating defendant was competent). Having acquiesced in or invited the error of which he now complains, appellant states no grounds for relief on this issue. Beyond mere non-preservation, appellant actually waived the point.

We review de novo a ruling on a motion for judgmental of acquittal. See Pagan v. State, 830 So. 2d 792 (Fla. 2002). Clowers contends on appeal that the State failed to refute the hypothesis that he killed Ms. Satchel in the heat of passion, pointing to the argument in which Ms. Satchel apparently threatened to move away with his child.

Page 6

Premeditation—”a fully formed conscious purpose to kill”—”may be formed a moment before the act, but must also exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.” Bigham v. State, 995 So. 2d 207, 212 (Fla. 2008). The victim’s verbal provocation notwithstanding, appellant cannot gloss over the trappings of premeditation as are reflected in his conduct. With no hint of physical provocation, Clowers shot his victim repeatedly, and in the back of the head, the final shot coming as Ms. Satchel lay on the ground.

Also, Ms. Harris testified that appellant had to retrieve the gun from his car, and Coleman confirmed that Clowers said on the way home, “Didn’t I tell you I was going to kill her?” That Coleman did not attest to a similar proclamation made before the shooting does not preclude the inference that appellant had an opportunity to, and did in fact, form a conscious purpose to kill before doing so. To the contrary, his post facto statement affirmed his earlier intent. Viewing the evidence, as we must, in a light most favorable to the State, see Woods v. State, 733 So. 2d 980, 985 (Fla. 1999), we conclude that the record discloses sufficient evidence from which the jury could infer premeditated design to the exclusion of all reasonable hypotheses of innocence.

Control of a prosecutor’s comments falls within trial court discretion, the exercise of which we will not disturb absent a clear showing of abuse. See

Page 7

Pacifico v. State, 642 So. 2d 1178, 1182 (Fla. 1st DCA 1994). Clowers posits that the prosecution, by questioning defense counsel’s claim that Clowers was guilty only of manslaughter, denigrated his theory of defense, in contravention of the dictate that closing remarks are not to be used to ridicule the defendant or his theory of innocence. See Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA 1987). A contextual examination of the prosecution’s remarks, however, reveals that the State hewed closely to the facts in evidence, asking the jury to draw its own inferences from the circumstances surrounding Ms. Satchel’s murder. Given the standard of review, we do not find this to be anything other than a logical analysis of the evidence in light of the applicable law.

Legality of a sentence raises a question of law, subject to de novo review. See Grosso v. State, 2 So. 3d 362, 364 (Fla. 4th DCA 2008). Clowers denies the trial court’s authority under section 775.087(2)(a)3., Florida Statutes, to impose a minimum mandatory term of life in prison, even upon a jury finding the defendant discharged a firearm and thereby caused death or great bodily harm. Section 775.087(2)(a), the “10-20-life” law, is an enhancement provision, under which a criminal sentence may be heightened if the perpetrator has carried or used a weapon or firearm in the commission of a felony. See § 27.366(1), Fla. Stat. (providing, “[i]t is the intent of the Legislature that convicted criminal offenders who meet the criteria in [sections] 775.087(2) and (3) be sentenced to the

Page 8

minimum mandatory prison terms provided herein”). Section 775.087(2)(a)3. provides for a mandatory life sentence where the criminal has been convicted of:

[A] felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q. . . . and during the course of the commission of the felony such person discharged a `firearm’ or `destructive device’ . . . and, as the result of the discharge, death or great bodily harm was inflicted upon any person . . . .

Appellant, of course, stood convicted of a capital felony under section 782.04(1)(a), the only penalty for which, short of death, is a minimum mandatory term of life in prison. See § 775.082(1), Fla. Stat. (providing that person convicted of capital felony “shall be punished by life imprisonment and shall be ineligible for parole”). Although one might question why the State charged appellant under section 775.087, we can certainly conceive that the State wished to preserve the right to seek a 10-20-life sentence enhancement in the event of conviction of a lesser-included offense, such as manslaughter. Whatever the reason, any citation to section 775.087(2)(a)3. does not affect the legality of the sentence for first-degree murder. Here, appellant was convicted and sentenced solely for a capital felony. Thus Hoover v. State, 877 So. 2d 751 (Fla. 1st DCA 2004), relied on by appellant, is inapposite. See id. at 752 (reversing mandatory life sentences for kidnapping, robbery, and carjacking, but affirming mandatory minimum life sentence for first-degree murder).

AFFIRMED.

Page 9

BENTON and ROBERTS, 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

SAMUEL COX, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-5731.

District Court of Appeal of Florida, First District.

Opinion filed April 13, 2010.

An appeal from the circuit court for Duval County, John Merrett, Judge.

James T. Miller, Jacksonville, for Appellant.

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

THOMAS, J.

Under current law, Florida Rule of Criminal Procedure 3.172(g) has been interpreted to grant a criminal defendant the substantive right to unilaterally withdraw from a negotiated plea agreement. We write to note that rule 3.172(g) should be amended to prohibit defendants from withdrawing from negotiated plea agreements when the State has completed or partially completed its part of the agreement. In addition, we certify a question of great importance.

Page 2

In 2006, Appellant was charged with two counts of conspiring to traffic in more than 400 grams of cocaine. Appellant pled guilty more than two years ago. As part of the plea agreement, Appellant stated, “I waive my right to withdraw this plea.” During the plea colloquy, the trial court questioned Appellant extensively regarding his plea to ensure it was “freely and voluntarily entered, with a full understanding of the nature and consequences of your plea.” Due to unintentional error, the trial court apparently overlooked the requirement to state that the court “accepted the plea.” The case was removed from the trial docket. Appellant and the State agreed to confidential terms regarding substantial agreement, and the trial court sealed the plea agreement.

As a further part of the agreement, Appellant and the State agreed to a 90% bond reduction, from $1,000,000 to $75,000. This allowed Appellant to remain free for an extended period of time in order to perform his obligations. In addition, as part of the agreement, the State agreed to a sentencing range of five to thirty years for the two first-degree felonies. This allowed Appellant to eliminate the risk of being sentenced to life imprisonment as an habitual felony offender.

At sentencing, the trial court heard evidence regarding Appellant’s purported attempts to substantially comply with the agreement. The court complied with the plea agreement and sentenced Appellant to concurrent terms of thirty years in

Page 3

prison. Thus, Appellant received significant benefits from his plea bargain. There is no claim that the State did not perform its part of the agreement.

Appellant waived his right to withdraw his guilty plea by entering into a plea bargain with the State. State v. Simons, 22 So. 3d 734 (Fla. 1st DCA 2009) (Hawkes, J., dissenting). In Simons, this court held that a defendant can force the State to comply with a settlement agreement in a pretrial intervention program, in which the State has complete discretion to consent to enter. Id. at 736. See § 948.08(2), Fla. Stat. (“Any . . . offender . . . is eligible for release to the pretrial intervention program on the approval of . . . the state attorney . . . .). In Simons, this court noted, “It is significant that the state attempted to withdraw from the settlement agreement after the defendant had partly performed the agreement . . . . [I]t is a settled principle of criminal procedure that, if the government fails to honor a plea agreement, the court may either enforce the agreement or allow the defendant to withdraw the plea.” Simons, 22 So. 3d at 736. If the Florida Rules of Criminal Procedure can compel the State to comply with a negotiated dismissal of criminal charges in a pretrial intervention program or other type of plea agreement, those rules should similarly compel a defendant to fulfill his obligation in a plea negotiation.

It is well established that a plea agreement is a contract. Garcia v. State, 722 So. 2d 905 (Fla. 3d DCA 1998), rev. dismissed, 727 So. 2d 905 (1999). Here, in

Page 4

violation of that principle, under controlling case law, we must allow Appellant the opportunity to withdraw from his plea contract more than two years later merely because he would rather choose another option. Harrell v. State, 894 So. 2d 935, 939 (Fla. 2005); Howard v. State, 516 So. 2d 31, 32 (Fla. 1st DCA 1987). The State will now be required to prosecute Appellant a second time for crimes that allegedly occurred almost four years ago. While it may sound reasonable to state that we have “returned [the state] to the same position it was in before the plea agreement,” Mackey v. State, 743 So. 2d 1117, 1119 (Fla. 2d DCA 1999), that does not reflect the reality in the courtroom. During the course of time, witnesses’ memories fade and evidence becomes stale. It is difficult to believe the State will not be prejudiced in its case against Appellant.

We think that the above prior precedent interpreting rule 3.172(g) should be reconsidered. If necessary, this rule should be amended to protect the integrity of the plea negotiation process and prevent inequitable results, as has occurred here. Appellant will now obtain relief, which violates the principles of equitable estoppel. Cf. Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 (Fla. 2001). In addition, the important principle of finality will be violated in this case. In our view, the holding in this case is not in accord with the proper administration of justice or the rule of law.

Page 5

Prior precedent requires us to reverse and remand with directions to allow Appellant to withdraw his plea. In doing so, however, we certify the following question:

DOES THE HOLDING IN HARRELL V. STATE, 894 So. 2d 935 (Fla. 2005), REQUIRE THAT A TRIAL COURT MUST ALLOW A DEFENDANT TO WITHDRAW HIS PLEA, EVEN WHERE THE STATE HAS PERFORMED ITS OBLIGATIONS UNDER THE PLEA AGREEMENT, MERELY BECAUSE THE TRIAL COURT INADVERTENTLY NEGLECTED TO STATE THAT IT HAD “ACCEPTED THE PLEA”?

REVERSED and REMANDED; QUESTION CERTIFIED.

WOLF, J., CONCURS WITH OPINION; WEBSTER, J., CONCURS IN RESULT ONLY WITH OPINION.

Page 6

WOLF, J. Concurring.

We should not worship at the temple of “bright line rules.” The justifications for stringent, ritualistic compliance with rules and enforcement by mandated reversal in all cases where rules are not followed are overall fairness, consistency and ease of administration by appellate courts. These general considerations should not override the court’s responsibility to reach the appropriate result in individual cases. Inflexible and blind adherence to bright line rules has too many times resulted in illogical or unjust results.

While I concur with Judge Webster that compliance with Florida Rule of Criminal Procedure 3.172(g) results in certainty and order in the legal process, failure to utter the “magic words” should not result in an automatic leave to withdraw from a plea agreement. The trial court’s failure to follow the formalistic requirements of the rule should only be one factor (albeit an important one) in determining whether to allow a defendant to withdraw a freely and voluntarily entered plea.

In the instant case, the reversal mandated by following the “bright line rule” is illogical and inequitable. I, therefore, concur in Judge Thomas’s invitation to the supreme court to revisit the issue of mandated reversal.

Page 7

WEBSTER, J., concurring in result only.

I concur in the result reached by the majority—to reverse and remand with directions to allow appellant to withdraw his plea—as such a result is clearly mandated by Florida Rule of Criminal Procedure 3.172(g) and Harrell v. State, 894 So. 2d 935, 939 (Fla. 2005). However, I disagree with virtually everything else in the majority opinion.

What is now subdivision (g) of rule 3.172 was originally adopted as subdivision (f) in 1977. The Fla. Bar re Fla. Rules of Criminal Procedure, 343 So. 2d 1247, 1255 (Fla. 1977). It has remained substantively unchanged since its initial adoption. Its intended purpose is clear—to permit either the state or a defendant to withdraw a previously made offer. Obviously, there must be some time beyond which it is no longer possible for either party to withdraw an offer. A bright-line rule is an absolute necessity so that the parties will know at what point they are bound by their agreement. Rule 3.172(g) establishes that bright-line at the time when, “after making all the inquiries, advisements, and determinations required by th[e] rule” to ensure that the defendant’s plea is voluntary and intelligently made, the trial court “formally” accepts the plea. It is a rule that has, in general, worked well for more than 30 years. Unfortunately, problems occasionally arise when a trial judge fails to comply with his or her obligation to

Page 8

formally accept the plea. I suggest such isolated failings by trial judges do not provide a valid justification for tinkering with the rule.

The concerns expressed by the majority are apparently limited to those relatively few cases which involve substantial assistance agreements of some sort. In such cases, it is not unusual for a meaningful period of time to pass between entry of the plea and sentencing to afford the defendant an opportunity to attempt to carry out his part of the agreement. However, even in such cases the problem identified by the majority—allowing the defendant to withdraw from the agreement after the state has partially or fully performed its part of the agreement—may be easily avoided. The trial judge merely needs to formally accept the plea as required by rule 3.172(g).

I also disagree with the majority’s certification to the supreme court. What constitutes “a question . . . of great public importance” for purposes of Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) is not defined in those rules. The Fourth District Court of Appeal has said that “one general guide is that a question should be certified where our decision will affect a large segment of the public and the extant decisional law may not coalesce around a single answer to the question posed.” Star Cas. v. U.S.A. Diagnostics, Inc., 855 So. 2d 251, 252 (Fla. 4th DCA 2003). Using that test or any other, it does not seem to me that any question this case might pose could reasonably be considered one “of great public importance.”

Page 9

Moreover, the question actually posed by the majority is susceptible to only one answer. Clearly, as written, and as interpreted in Harrell, rule 3.172(g) requires that the question be answered “yes.”

Finally, to the extent that the majority is proposing the desirability of an amendment to rule 3.172(g), the appropriate procedure is set out in Florida Rule of Judicial Administration 2.140. The amendment process there set out exists for a purpose, and we circumvent it at our peril, as we have seen many times.

For all of the reasons expressed, while I concur in the result reached by the majority, I am unable to agree with the remainder of their opinion.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites