Florida Criminal Law Opinions

William James Davis, Appellant,
v.
The State of Florida, Appellee.

Case No. 3D08-329.

District Court of Appeal of Florida, Third District.

Opinion filed May 26, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal Nos. 04-38542, 05-14441, Orlando A. Prescott, Judge.

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

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

Before COPE, WELLS, and SUAREZ, JJ.

SUAREZ, J.

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The defendant, William James Davis, appeals the revocation of his probation and an order imposing sentence. Because the trial judge abused his discretion in finding that the defendant willfully and substantially violated the conditions of his probation, we reverse the revocation of probation and order imposing sentence.

The defendant was charged in case number F04-38542 with two counts of aggravated assault with a deadly weapon and one count of battery. In case number F05-14441, he was charged with two counts of aggravated assault with a deadly weapon and one count of possession of a firearm by a convicted felon. On December 12, 2006, he pled guilty to one count of aggravated assault with a deadly weapon in case number F04-38542 and one count of aggravated assault with a deadly weapon in case number F05-1441. He was placed on reporting probation for one year for both cases. The State nolle prossed all remaining counts in each case. At the plea hearing, the trial court orally pronounced that the defendant was being placed on “one year’s reporting probation” with the special condition of participating and successfully completing the domestic intervention program. The sentence was concurrent for both cases. On May 16, 2007, the State filed an affidavit of violation of probation alleging that the defendant failed to

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“make a full and truthful report” and to report to his probation officer monthly as he was required to do.¹

The defendant contends on appeal that the State failed to meet its burden of proving that there was a willful and substantial violation of his probation by failing to report to the probation officer during the months of January, February, March and April of 2007. He alleges that he did not report monthly to his probation officer because there was no checkmark on the line in the order of supervision which required him to file a full and truthful report to the probation officer not later than the fifth day of each month and therefore he was confused and did not report again after the first day following his probation.² At the probation violation hearing, the State’s evidence consisted of the order of supervision given to the defendant at the plea hearing requiring him to report monthly, the trial judge’s oral pronouncement at the plea hearing that the defendant was being placed on one year’s reporting probation, and the testimony of the probation officer that she advised the defendant of the requirement that the defendant report on a monthly basis in accordance with the checkmark that was placed on the order of supervision showing that the defendant was being placed on probation for a period of one year. The trial judge ruled that the State met its burden of proving a willful and

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substantial violation in connection with the defendant’s failure to report on a monthly basis to his probation officer and the failure to enroll in and successfully complete the domestic intervention program. The trial court found the defendant to be in violation of his probation, revoked the probation and sentenced him in both of his substantive cases to five years and three years respectively. After the denial of the defendant’s motion to correct a sentencing error, he appeals the revocation of his probation.

We reverse. We agree with the defendant that the condition requiring Mr. Davis report to his probation officer no later than the fifth day of each month was not checked on the order of supervision of probation as a requirement of his probation and therefore cannot serve as a basis upon which to revoke his probation.

The reporting requirement of probation provided for in section 948.03(1)(a), Florida Statutes (2006), and in Florida Rule of Criminal Procedure 3.986(e) is an essential aspect of the supervisory duties of probation. See Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009). The trial judge orally informed the defendant that he was being placed on one year’s reporting probation. As such, the defendant was made aware that a condition of his probation required him to report monthly to his probation officer. However, oral pronouncement alone, generally, is not enough. The defendant must be placed on proper written notice of this requirement in order to satisfy due process. See Torres v. State, 712 So. 2d 1169 (Fla. 2d DCA 1998).

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Due process is satisfied only if the conditions are included in the written sentencing order. See Lawson v. State, 969 So. 2d 222, 237 (Fla. 2007) (“General conditions of probation, which are contained in the Florida Statutes, must be included in the order but need not be orally pronounced at the sentencing hearing.”); Maddox v. State, 760 So. 2d 89, 105 (Fla. 2000) (“[G]eneral conditions of probation do not have to be orally pronounced at the sentencing hearing and due process is satisfied as long as the conditions are included in the written sentencing order.”). The defendant did not receive sufficient written notice to satisfy due process. The probation form given to the defendant at his plea hearing correctly included the condition, which states that “[n]ot later than the fifth day of each month [the defendant] will make a full and truthful report to your [probation] officer on the form provided for that purpose.” The provision in the probation form is written such that it requires a check mark next to it to be applicable.³ Without the check mark, it is not a written requirement. Because the order of supervision of probation in this case lacks a checkmark next to the requirement to report monthly to the probation officer, we find that it did not satisfy due process

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requirements and cannot serve as the basis for the revocation of probation. We reverse the order of revocation and remand for resentencing.

Reversed and remanded with instructions.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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RICKY MILLER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-739.

District Court of Appeal of Florida, Fourth District.

May 26, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Stanton S. Kaplan, Senior Judge, L.T. Case No. 08-8205 CF10A.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

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

WARNER, J.

Ricky Miller appeals his conviction of possession of cocaine. At his trial, he requested that the court instruct the jury on his affirmative defense of lack of knowledge that the substance he possessed was cocaine. The trial court refused to give the instruction. We reverse.

The possession of cocaine charge arose from Miller’s possession of a glass pipe which contained cocaine residue. When Miller testified in his own defense, counsel had specifically asked Miller whether he knew that cocaine was in the pipe, and Miller denied knowing of any. During the charge conference, the defense requested a jury instruction on lack of knowledge of the illicit nature of a controlled substance, as it was an affirmative defense to the cocaine possession charge. The trial court declined to give the standard instruction on this affirmative defense, because there was no evidence that Miller did not know that cocaine was illegal. Defense counsel argued that the instruction was proper where evidence supported the contention that Miller did not know cocaine was in the pipe confiscated from him. The trial court disagreed and denied the request for the affirmative defense instruction. The court later instructed the jury as follows:

[T]o prove the crime of possessing cocaine, the State must prove three elements beyond a reasonable doubt.

First, they have to prove that Mr. Miller possessed a certain substance. Second, that the substance was cocaine.

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And third, that Mr. Miller had knowledge of the presence of the substance.

A written copy of the instructions was provided to the jury for its deliberations. The jury convicted Miller of possession of cocaine, along with other charges. He appeals only his conviction for possession of cocaine.

In 2002, the Florida Legislature enacted section 893.101, Florida Statutes, which expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893. The statute superseded Chicone v. State, 684 So. 2d 736 (Fla. 1996), which had held that the state was required to prove a fourth element of the offense, namely that the defendant knew of the illicit nature of the substance. See Barrientos v. State, 1 So. 3d 1209, 1216 (Fla. 2d DCA 2009). Section 893.101, Florida Statutes, thus makes possession of a controlled substance a general intent crime and provides that lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. See Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005).

To prove a cocaine possession charge, the state must prove that the defendant knew that he possessed a substance, which was in fact cocaine, but the state does not have to prove that the defendant knew it was cocaine. See Fla. Std. Jury Instr. (Crim.) 25.7. Instead, the defendant may raise by affirmative defense the claim that he did not know the substance was cocaine. See Burnette v. State, 901 So. 2d 925, 927 (Fla. 2d DCA 2005). The affirmative defense does not require that the defendant offer evidence that he did not know that the possession of cocaine was illegal.¹

In this case, Miller presented at least some evidence in support of this affirmative defense. He testified that he did not know there was cocaine in the glass pipe. “A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.” Gregory v. State, 937 So. 2d 180, 182 (Fla. 4th DCA 2006) (emphasis in original); Bozeman v. State, 714 So. 2d 570 (Fla. 1st DCA 1998). Thus, the trial court should have given the requested instruction on the affirmative defense of lack of knowledge of the illicit nature of the

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substance. Because the trial court failed to properly instruct the jury, we reverse.

TAYLOR and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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JEFFREY T. LAMB, Petitioner,
v.
WALTER A. McNEIL, Secretary, Florida Department of Corrections, Respondent.

No. 4D09-3508.

District Court of Appeal of Florida, Fourth District.

May 26, 2010.

Petition alleging ineffective assistance of counsel to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Lucy Chernow Brown, Judge, L.T. Case No. 2004 CF012283AXX.

Richard G. Lubin of Lubin and Metz, P.A., West Palm Beach, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for respondent State of Florida.

WARNER, J.

Petitioner seeks habeas corpus relief alleging ineffective assistance of appellate counsel for failing to rely on a complete and accurate transcript of all of the proceedings of petitioner’s first degree murder trial, as well as for failing to raise certain issues in direct appeal. We deny the writ.

To support his claim, petitioner points to several places where the trial transcripts of statements petitioner made to police included “inaudible” responses. Comparing the trial transcript to other transcripts created of the taped statements, he claims that because the trial transcript inaccurately recorded the taped statements, it misled appellate counsel in the selection of issues to raise on appeal. However, he has failed to show what meritorious issues were not raised as a result of the inaccurate transcript, which would have undermined confidence in the outcome of the proceedings. “If a legal issue `would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000) (quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994)). The failure to transcribe the hearing on the motion for judgment of acquittal does not constitute ineffective assistance for the same reason. Petitioner has not shown that had the denial of the motion been raised in direct appeal, it would have undermined the correctness of the result, as there was competent substantial evidence to support the state’s case. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

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Finally, petitioner maintains that appellate counsel should have raised the exclusion of defense evidence in the direct appeal. The trial court excluded the results of a test performed by an expert to show that a tire iron placed into evidence by the state could not be the murder weapon. The expert had conducted the test a day before being called to testify at petitioner’s trial. The court excluded the evidence as a discovery violation. Defense counsel did not suggest or argue to the trial court for a less drastic remedy other than exclusion, nor did he suggest a way to cure the obvious prejudice to the state. However, the expert was otherwise permitted to give detailed testimony as to her opinion that the tire iron could not be the murder weapon, an opinion she had formed prior to conducting the test. Therefore, the evidence of the test was merely cumulative to her in-court testimony. We do not reach the question of whether the trial court erred in excluding the test results. Appellate counsel could rightfully have declined to raise this issue, because any error would have been harmless beyond a reasonable doubt. See, e.g., Wallace v. State, 766 So. 2d 364, 372 (Fla. 3d DCA 2000) (finding error harmless because the excluded testimony was cumulative of other evidence presented to the jury); Billeaud v. State, 578 So. 2d 343, 344-45 (Fla. 1st DCA 1991) (error in excluding testimony tending to show that killing was a crime of passion was harmless beyond a reasonable doubt where the evidence was largely cumulative).

We reject all other claims made.

Petition denied.

GROSS, C.J., and TAYLOR, J., concur.

Not final until disposition of timely filed motion for rehearing.

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The State of Florida, Appellant,
v.
E.A., a juvenile, Appellee.

Case No. 3D08-3109.

District Court of Appeal of Florida, Third District.

Opinion filed May 26, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 08-3655, William Johnson, Judge.

Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellant.

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

Before COPE, SUAREZ, and SALTER, JJ.

SUAREZ, J.

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The State appeals an order granting juvenile E.A.’s motion to suppress. We reverse and remand for the trial judgeto enter adequate findings of fact determining the credibility of testimony on the issue of whether or not a seizure within the Fourth Amendment had occurred to implicate a finding on probable cause.

At the motion to suppress hearing, on December 27, 2007, a Miami-Dade police officer testified that he approached the car in which E.A. was a passenger because the vehicle was blocking the entrance to the driveway to a residence. As the officer approached the vehicle, he smelled the odor of burnt marijuana emanating from the car. He shined his flashlight through the open window and saw E.A. holding a bag of suspect marijuana between his legs. The officer removed E.A. from the car and placed him under arrest. E.A. testified that his car was parked next to an abandoned residence. He stated he was across the street from the car when he first saw a police officer. He crossed back to his car and, as he was getting into the car, the officer came out of the bushes, approached E.A. with his gun drawn and ordered him out of the vehicle. E.A. consented to a search of his person and contends that the officer found nothing. The trial court granted the motion to suppress solely upon the finding that E.A. did not commit a parking violation or law violation and, therefore, there was no reasonable suspicion for the stop.

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On appeal, both the defense and the State agree that, in fact, the police officer’s initial approach to the vehicle was lawful. The State asserts error in the trial court’s failure to include in its written order credibility findings resolving the conflict in testimony between E. A. and the police officer. The factual resolution on credibility is necessary in order to determine whether or not there was a Fourth Amendment seizure before addressing probable cause for the seizure of the marijuana and ensuing arrest of E.A. See State v. Defereance, 807 So. 2d 806 (Fla. 4th DCA 2002); State v. Polanco, 658 So. 2d 1123 (Fla. 3d DCA 1995). The defense asserts the trial court’s order should be affirmed arguing that the State failed to preserve the issue for appeal by failing to get a factual ruling from the trial court. We reject the defense’s argument. A review of the record shows that, because the trial judge first ruled, incorrectly, that there was no reasonable suspicion to uphold the stop, he granted the motion to suppress without ever addressing the issue of probable cause for the arrest. The State was left with no opportunity to object to the failure of the trial court to resolve the conflict in testimony on the issue of whether or not a Fourth Amendment seizure had occurred.

We reverse the order granting the motion to suppress and remand for the trial judge to resolve the conflict in testimony relating to whether there was a

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seizure under the Fourth Amendment as it relates to probable cause for the arrest of E.A. and for a written order containing the findings.

Reversed and remanded with directions.

Not final until disposition of timely filed motion for rehearing.

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Nelson Viera, Appellant,
v.
The State of Florida, Appellee.

Case No. 3D07-3300.

District Court of Appeal of Florida, Third District.

Opinion filed May 26, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 05-30218-B, Bertila Soto, Judge.

Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

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

SCHWARTZ, Senior Judge.

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This is an appeal from a conviction and a 40 year sentence for trafficking in heroin. We find no trial error and therefore affirm the conviction. However, after consideration of the circumstances surrounding the sentence in light of the factors stated in Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003), particularly the judge’s enthusiastic advocacy of the State’s pre-trial offer of a ten year sentence in return for a guilty plea, and the unexplained 40 year sentence (the offense carried a 25 year mandatory minimum) which was imposed after the trial which followed the defendant’s rejection of the offer, we must conclude that the sentence was, in legal parlance, “vindictive,” requiring resentencing by another judge. See Brandful v. State, 858 So. 2d 367 (Fla. 3d DCA 2003); Compare Ducksworth v. State, 26 So. 3d 74 (Fla. 3d DCA 2010).

Affirmed in part, vacated in part, and remanded.

Not final until disposition of timely filed motion for rehearing.

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TOURRIE HOWARD, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-2494.

District Court of Appeal of Florida, Fourth District.

May 26, 2010.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Jeffrey R. Levenson, Judge, L.T. Case No. 05-20277CF10A.

Tourrie Howard, Bowling Green, pro se.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Tourrie Howard challenges the trial court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part. The record furnished to this court, which includes the transcript of the initial plea hearing, does not refute Howard’s allegation that he was not advised that he could be sentenced to a habitual offender prison term following a violation of probation and that he could receive the maximum sentence. See Cousino v. State, 762 So. 2d 1063 (Fla. 4th DCA 2000); Thomas v. State, 745 So. 2d 468 (Fla. 4th DCA 1999). We remand either for an evidentiary hearing or for the attachment of records which conclusively show that he is entitled to no relief on this point.

Affirmed in part, reversed in part and remanded.

GROSS, C.J., LEVINE and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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STATE OF FLORIDA, Appellant,
v.
OTHMANE AMEQRANE, Appellee.

Case No. 2D09-3018.

District Court of Appeal of Florida, Second District.

Opinion filed May 21, 2010.

Appeal from the Circuit Court for Hillsborough County, Daniel H. Sleet, Judge.

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

Richard W. Bisconti of Nelson, Bisconti, Thompson & McClain, LLC, Tampa, for Appellee.

VILLANTI, Judge.

The State appeals the trial court’s order granting Othmane Ameqrane’s motion to suppress. The trial court concluded that a police officer who conducted a traffic stop of Ameqrane’s vehicle did not possess the requisite reasonable suspicion

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that Ameqrane’s faculties were impaired by alcohol so as to justify the officer’s request that he perform a horizontal gaze nystagmus (HGN) field sobriety test or any other field sobriety test. Based upon the uncontroverted facts, we conclude that the trial court erred in its legal conclusion and, therefore, reverse and remand for further proceedings.

Ameqrane was charged with one count of driving under the influence and one count of escape from law enforcement custody. He filed a motion to suppress evidence of the field sobriety testing and his statements. At an evidentiary hearing on that motion, Officer Juan Mello of the City of Tampa Police Department testified that he had been a DUI investigator for six years, had received special training to qualify as a DUI officer, and had conducted over 2000 DUI-related arrests. On November 14, 2008, around four o’clock in the morning, Officer Mello observed Ameqrane’s vehicle speeding, and he conducted a traffic stop. Once the vehicle was stopped, the officer approached Ameqrane’s vehicle, began talking to him, detected alcohol on his breath, and noticed that his eyes were bloodshot and glassy. Officer Mello testified that Ameqrane admitted he had consumed alcohol. The officer asked Ameqrane to step out of the vehicle to determine if he was driving under the influence of alcoholic beverages. The officer first performed an HGN test of Ameqrane’s eyes and concluded that his eyes were “bouncing everywhere” and that it appeared Ameqrane had “quite a bit of alcohol in [his] system.” He then asked Ameqrane to submit to additional field sobriety exercises. Ameqrane vacillated between agreeing to additional sobriety testing and refusing to undergo such testing, eventually stating, “Just go ahead and take me to jail.” Ameqrane then refused further sobriety testing, and he was arrested for DUI.

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In his motion to suppress, Ameqrane argued that the smell of alcohol and his bloodshot eyes were insufficient to establish reasonable suspicion to conduct any field sobriety testing. The trial court agreed, concluding that under these facts Officer Mello did not have sufficient reasonable suspicion that Ameqrane’s normal faculties were impaired due to the consumption of alcoholic beverages and, therefore, he could not request any field sobriety testing. The court stated that Ameqrane could be detained only long enough to be issued a citation for speeding. Accordingly, the court suppressed all evidence and statements obtained by Officer Mello after his request that Ameqrane perform the HGN field sobriety exercise. This included evidence of the HGN field test, Ameqrane’s refusal to participate in additional field sobriety tests, and any evidence related to subsequent blood tests. Because prevailing case law favors the State in this dispute, we agree that reversal of the suppression order is required.

We apply a mixed standard of review when analyzing a trial court’s ruling on a motion to suppress. “The trial court’s `determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the circuit court’s determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review.’” State v. K.S., 28 So. 3d 985, 987 (Fla. 2d DCA 2010) (quoting State v. Clark, 986 So. 2d 625, 628 (Fla. 2d DCA 2008)).

To request that a driver submit to field sobriety tests, a police officer must have reasonable suspicion that the individual is driving under the influence. In State v. Taylor, 648 So. 2d 701, 703-04 (Fla. 1995), the supreme court provided an example of what constitutes “reasonable suspicion” sufficient to conduct a DUI investigation:

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When [the defendant] exited his car, he staggered and exhibited slurred speech, watery, bloodshot eyes, and a strong odor of alcohol. This, combined with a high rate of speed on the highway, was more than enough to provide [the officer] with reasonable suspicion that a crime was being committed, i.e., DUI. The officer was entitled under section 901.151 to conduct a reasonable inquiry to confirm or deny that probable cause existed to make an arrest. [The officer's] request that [the defendant] perform field sobriety tests was reasonable under the circumstances and did not violate any Fourth Amendment rights.

The purpose of a DUI investigation is to either confirm or deny whether there is probable cause for a DUI arrest. See id. at 703; State, Dep’t of Highway Safety & Motor Vehicles v. Haskins, 752 So. 2d 625, 627 (Fla. 2d DCA 1999); Origi v. State, 912 So. 2d 69, 71 (Fla. 4th DCA 2005).

In Origi, as in this case, a state trooper observed the defendant speeding. 912 So. 2d at 70. The trooper stopped the defendant and noticed that he smelled of alcohol and had bloodshot eyes. Id. The Fourth District concluded that these “circumstances gave rise to a reasonable suspicion sufficient to justify detaining [the defendant] for a DUI investigation.” Id. at 72. While other facts were recited in the Origi opinion—staggering, swaying, and slurred speech—those facts were not relied upon by the district court as the basis for finding reasonable suspicion for the DUI investigation; the district court specifically relied on the defendant’s speeding, odor of alcohol, and his bloodshot eyes. Id. at 70-72; cf. Carder v. State of Fla., Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 547a n.2 (Fla. 9th Cir. Ct. 2007) (stating that combination of defendant’s bloodshot, glassy eyes and odor of alcohol provided reasonable suspicion to request that Carder submit to field sobriety tests, even if her speech was not slurred); Fewell v. State, 14 Fla. L. Weekly Supp. 704a (Fla. 9th Cir. Ct.

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2007) (concluding that there was sufficient reasonable suspicion to request that defendant perform field sobriety tests based on traffic violation, defendant’s bloodshot eyes, sunburn, and a strong odor of an alcoholic beverage); Brush v. State of Fla., Dep’t of Highway Safety & Motor Vehicles, Bureau of Driver Improvement, 14 Fla. L. Weekly Supp. 2b (Fla. 4th Cir. Ct. 2006) (concluding that police officer’s knowledge that defendant had run a stop sign, coupled with his observation that defendant had a strong odor of alcohol about him, a flushed face, and watery, bloodshot eyes, provided reasonable suspicion to conduct field sobriety exercises); State v. Tamer, 10 Fla. L. Weekly Supp. 931a (Fla. 15th Cir. Ct. 2003) (concluding that defendant’s speeding, admission that he had consumed two or three beers, and police officer’s observation that the defendant smelled of alcohol, had bloodshot eyes and a flushed face provided reasonable suspicion to ask defendant to perform field sobriety exercises); State v. Petroski, 6 Fla. L. Weekly Supp. 621b (Fla. 15th Cir. Ct. 1999) (concluding that state trooper had reasonable suspicion to conduct roadside sobriety exercises based on smell of alcohol on the defendant’s breath, his glassy eyes, flushed face, and admission of alcohol consumption).

In this case, the police officer testified that he observed Ameqrane speeding at four o’clock in the morning. When he approached Ameqrane to issue a citation, the officer smelled alcohol and observed Ameqrane’s glassy, bloodshot eyes. Upon performing the HGN test, the officer observed that Ameqrane’s eyes were jerky and bouncy and concluded that Ameqrane had apparently consumed “quite a bit” of alcohol. These facts provided sufficient reasonable suspicion to ask Ameqrane to submit to further field sobriety tests to either confirm or deny whether there was

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probable cause for a DUI arrest. Hence, we see no basis to support the trial court’s legal conclusion that Officer Mello did not have reasonable suspicion to require any field sobriety testing under the undisputed facts of this case. Accordingly, we reverse the suppression order and remand the case for further proceedings.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.

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

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STATE OF FLORIDA, Appellant,
v.
KEITH JOSEPH MCKNIGHT, Appellee.

Case No. 5D09-2743.

District Court of Appeal of Florida, Fifth District.

Opinion filed May 21, 2010.

Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellee.

PER CURIAM.

The State appeals the downward departure sentence imposed on Keith McKnight ["McKnight"]. We reverse.

McKnight was charged by information with driving while license cancelled, suspended or revoked as a habitual traffic offender, a third-degree felony, and driving under the influence, a misdemeanor. He has an extensive prior record and the State filed a notice of its intent to seek habitual offender status.¹

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On July 14, 2009, a status conference was held for the two offenses and the associated violation of probation. The court offered McKnight a withhold of adjudication on count one and two years of probation on count two. The State objected that such a sentence would be an impermissible downward departure. The computation of McKnight’s criminal punishment code scoresheet reflected 114.4 total sentence points, with a resulting lowest permissible prison sentence of 62.55 months. McKnight readily agreed to the offer and was sentenced accordingly. The trial court further found that, although McKnight qualified as a habitual felony offender, the designation was not necessary for the protection of the public.

As its basis for the downward departure, the court said:

The reasons for the downward departure is that the defendant, prior to coming into court, relied upon the Court’s — not directions — suggestion that he use all best efforts to get a license, and by goodness, he has in fact got a license.

A downward departure sentence less severe than the lowest permissible sentence shown on the criminal punishment code scoresheet “is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (2009). At a minimum, the trial court must impose the lowest permissible sentence calculated according to the Criminal Punishment Code unless the court finds that the evidence supports a valid reason for a downward departure. See e.g., § 921.002(1)(f) & (3), Fla. Stat. (1999); State v. Henderson, 766 So. 2d 389, 390 (Fla. 2d DCA 2000). Section 921.0026(2) sets forth the circumstances under which a departure from the lowest permissible sentence is reasonably justified. The statutory list of mitigating factors is not exclusive and the trial court may impose a downward departure sentence for reasons not delineated in section 921.0026. See State v.

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Stephenson, 973 So. 2d 1259, 1263 (Fla. 5th DCA 2008); State v. Bray, 738 So. 2d 962, 963 (Fla. 2d DCA 1999).

In evaluating a nonstatutory mitigating circumstance, a reviewing court must consider the reasons given in light of the stated legislative sentencing policy. State v. Geoghagan, 27 So. 3d 111, 115 (Fla. 1st DCA 2009); Rafferty v. State, 799 So. 2d 243, 248 (Fla. 2d DCA 2001) (during sentencing, question trial court should ask is whether nonstatutory reasons given for downward departure meet legislative policy for departing downward in sentencing); State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998). As noted in Chestnut, because the first purpose of sentencing is to punish, a downward departure from the permissible sentence is discouraged and adequate justification is required. Id. Second, the mitigating factors expressly authorized by the Legislature mainly focus on the offense itself: the nature of the crime, the defendant’s level of criminal involvement or participation, the mental capacity or state of mind of the defendant. Id.

The trial court’s first reason for downward departure — that McKnight followed the judge’s suggestion and obtained a valid license — does not resemble any of the statutorily authorized grounds for departure. It goes against the legislative policies of punishment and of increasing the severity of the punishment for repeat crimes. McKnight has three prior convictions for driving while license cancelled, suspended or revoked. According to the police report, at the time McKnight was stopped for the DUI, his license was suspended and he was intoxicated at the time he was driving.

The second basis for the court’s downward departure, that McKnight has previously received substantial prison time, also goes against legislative policy. The

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trial court lacks discretion to grant a downward departure sentence based on factors already taken into account by the sentencing guidelines. See State v. Sachs, 526 So. 2d 48, 50 (Fla. 1988); Stephenson, 973 So. 2d at 1264. Nor will an offender’s work status or length of previous sentences support downward departure. See Geoghagan 27 So. 3d at 115; State v. Chapman, 805 So. 2d 906, 908 (Fla. 2d DCA 2001); State v. Nathan, 632 So. 2d 127, 128 (Fla. 1st DCA 1994); State v. Lacey, 553 So. 2d 778 (Fla. 4th DCA 1989).

According to the record, McKnight is gainfully employed cleaning septic tanks and he had previously paid substantial restitution for treatment of a prior victim’s injuries. The trial court expressed the view that it made more sense for McKnight to “continue to be a law-abiding, tax-paying, contributing member of society,” and not to be a “drag” on the citizens of Florida by being incarcerated for several years. The state legislature has established different priorities in its sentencing policy, however, and has chosen not to repose that kind of downward sentencing discretion in the state’s judges.

Because the trial court failed to articulate valid reasons for the downward departure sentence, the downward departure sentence is vacated. On remand, McKnight may be permitted to withdraw his plea, if he chooses to do so, or be resentenced within the guidelines.

SENTENCE VACATED and REMANDED.

GRIFFIN, SAWAYA and LAWSON, JJ., concur.

—————

Notes:

—————

Courtesy of David Edelstein

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M.F., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-3053.

District Court of Appeal of Florida, Second District.

Opinion filed May 21, 2010.

Appeal from the Circuit Court for Polk County, John Radabaugh, Judge.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

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

SILBERMAN, Judge.

M.F., a juvenile, seeks review of the trial court’s order finding that she committed the offense of grand theft of a motor vehicle, withholding adjudication, and placing her on probation. M.F. argues that the trial court erred in denying her motion for

Page 2

judgment of dismissal. Because the State failed to establish that M.F. was involved with the theft of her mother’s vehicle, we reverse.

M.F.’s mother testified that she lived in a home in Polk County with M.F.’s grandmother, M.F., and M.F.’s boyfriend. The mother owned a white Camaro that she kept in the carport. The car was operational, but it had expired tags and was not registered, so the mother told everyone in the home not to touch the car. In October 2008, the mother left the family’s home and temporarily moved to Fort Lauderdale.

The grandmother testified that in early November 2008, Sergeant Robert Pletts from code enforcement spotted the unregistered Camaro in the carport. Sergeant Pletts told her that the car had to be removed because it did not have a valid tag. The grandmother explained that the car belonged to her absent daughter, and Sergeant Pletts said he would give her until December to correct the problem.

On November 6, 2008, two unidentified men with a truck towed the Camaro from the driveway as the grandmother was painting a room in the back of the home. The grandmother heard the men in the driveway and ran to the front of the home, but the men drove away with the car before she could stop them. As the men were leaving, the grandmother saw M.F. and her boyfriend getting into the next door neighbor’s car in his driveway. The grandmother yelled to M.F., but M.F. ignored her.

The neighbor drove his car in the same direction as the truck towing the Camaro, but the grandmother could only see the tow truck for about a block. She did not know if the car followed the truck after it left her line of sight. When M.F. came home later that night, she did not say anything about the Camaro. The grandmother waited a couple of days and then called the mother. After she spoke to the mother, the

Page 3

grandmother called the police. The only thing M.F. ever said to the grandmother about the Camaro was that it was none of the grandmother’s business. M.F. told the mother that the grandmother had the car towed away.

Officer Sanchez testified that he responded to the stolen vehicle complaint on November 14, 2008. He placed a BOLO for the Camaro, and he verified that there was no police report from a towing company indicating that the car was towed. The officer was not sure if every towing company reported towed cars to the police.

The trial court should grant a judgment of dismissal when the State fails to present a prima facie case of the offense charged. M.E.R. v. State, 993 So. 2d 1145, 1146 (Fla. 2d DCA 2008). In circumstantial evidence cases, the State must present evidence that is inconsistent with any reasonable hypothesis of innocence. This court conducts a de novo review of the denial of a motion for judgment of dismissal. In conducting this review, we must view the evidence in the light most favorable to the State. Id.

The elements of grand theft of a motor vehicle are (1) knowingly obtaining or using or attempting to obtain or use the property of another with (2) the intent to deprive the victim of the right to or benefit from the property or appropriate the property to one’s own use or the use of another unauthorized person, when (3) the property is a motor vehicle. § 812.014(1), (2)(c)(6), Fla. Stat. (2008). The evidence presented by the State in this case does not even establish that the mother’s car was stolen as opposed to being towed away by code enforcement, let alone that M.F. was responsible for having the car towed away. There was no evidence suggesting that M.F. planned to steal the Camaro. There was no evidence connecting M.F. with the two unidentified

Page 4

men who towed the car other than the fact that M.F. got into a neighbor’s car that headed the same direction as the tow truck for about one block. Finally, the Camaro was never retrieved, so there was no physical evidence that M.F. had used it or sold it to someone else.

Additionally, the evidence did not exclude the reasonable hypothesis of innocence that code enforcement had arranged for the Camaro to be towed. The car did not have a valid tag, and code enforcement had already stopped by to warn the grandmother that it must be removed. Sergeant Pletts supposedly told the grandmother that he would give her until December to have the Camaro registered, but there was no evidence regarding whether he or a different officer had the car removed. Indeed, no one from code enforcement testified. Because the Camaro remained in the carport without a valid tag, it is certainly possible that code enforcement arranged for the car to be towed without waiting until December. Moreover, the State did not discount the possibility that some unknown third parties stole the Camaro.

Because the State’s evidence was legally insufficient to establish a prima facie case of grand theft of a motor vehicle and was not inconsistent with any reasonable hypothesis of innocence, we reverse the order on appeal.

Reversed and remanded.

CRENSHAW and MORRIS, JJ., Concur.

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

Courtesy of David Edelstein

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LUKE FISHER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-6422.

District Court of Appeal of Florida, Second District.

Opinion filed May 21, 2010.

Appeal from the Circuit Court for Charlotte County, J. Frank Porter, Judge.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

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

CRENSHAW, Judge.

Luke Fisher appeals his judgments and sentences for trafficking in cocaine, possession of methamphetamine, possession of oxycodone, possession of MDMA, driving while license suspended, carrying a concealed firearm, and possession of drug paraphernalia. Fisher argues the trial court erred by imposing sentences that

Page 2

did not adhere to the terms of a deferred sentencing plea agreement. Yet we find Fisher did not preserve this issue by filing a motion to withdraw plea, and thus his argument is beyond our scope of review for the purpose of this appeal. Accordingly, we affirm his judgments and sentences.

On November 4, 2008, Fisher entered into a written negotiated plea agreement wherein he agreed to plead no contest in exchange for a sentence of forty-eight months in prison with a minimum mandatory term of three years for the felony offenses and time served for the misdemeanor possession offense. Fisher understood that the trial court would defer sentencing and he would be allowed to remain at liberty until the sentencing hearing. The trial court informed Fisher that under the terms of the agreement, if he failed to appear at the sentencing hearing or if he “pick[ed] up any new charges” in the interim, the trial court would not honor the agreed-upon sentence.

Unfortunately for Fisher, at the sentencing hearing on December 5, 2008, the trial court was informed that he had been arrested as a result of his participation in two controlled drug buys that occurred on November 6 and November 21, 2008. The trial court proceeded to conduct an evidentiary hearing pursuant to Neeld v. State, 977 So. 2d 740, 745 (Fla. 2d DCA 2008), to determine if Fisher had violated the plea agreement by committing a new law violation. At the conclusion of the evidentiary hearing, the trial court found competent, substantial evidence that Fisher had violated the plea agreement and sentenced him to twenty years in prison for trafficking in cocaine and five years in prison for the other felonies.

A defendant who pleads guilty or nolo contendere “[has] a constitutional right to appeal, although the issues that they can raise on appeal are limited.” Leonard

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v. State, , 760 So. 2d 114, 116 (Fla. 2000). Under Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii), a defendant who enters a guilty or nolo contendere plea and who does not expressly reserve the right to appeal a prior dispositive ruling of the trial court is limited to raising issues that occurred contemporaneously with the plea, which concern: (1) the trial court’s lack of subject matter jurisdiction; (2) a violation of the plea agreement, if preserved by a motion to withdraw the plea; (3) an involuntary plea, if preserved by a motion to withdraw the plea; and (4) a sentencing error, if preserved. See Fla. R. App. P. 9.140(b)(2)(A)(ii)(a)-(d); Biggs v. State, 24 So. 3d 797, 798 (Fla. 2d DCA 2010).

Fisher argues the trial court violated the terms of the plea agreement by relying on insufficient evidence to determine that he committed a new law violation and thereafter imposing a sentence greater than the sentence approved under the plea agreement. In support of his argument, Fisher relies on the evidentiary requirements set forth in Neeld. But in Neeld, this court, prior to addressing the merits of his appeal, noted Neeld had filed a motion to withdraw plea. 977 So. 2d at 741. In contrast, for reasons that are unclear in our record on appeal, Fisher did not file a motion to withdraw his plea. Therefore, Fisher’s contentions were not preserved under rule 9.140(b)(2)(A)(ii)(b), and we find his arguments concerning the sufficiency of the evidence relied upon by the trial court to be beyond our scope of appellate review. Accordingly, we affirm Fisher’s judgments and sentences without prejudice to any right he may have to file a motion for postconviction relief.

WALLACE and KHOUZAM, JJ., Concur.

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

Courtesy of David Edelstein

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