Florida Criminal Law Opinions

The State of Florida, Appellant,
v.
Mark Brown, Appellee.

No. 3D08-1444.

District Court of Appeal of Florida, Third District.

Opinion filed May 12, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 07-27543 B, Barbara Areces, Judge.

Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellee.

Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

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SCHWARTZ, Senior Judge.

The state appeals from an order in a prosecution for possession of cannabis and of a firearm by a convicted felon suppressing the defendant’s inculpatory statement and a weapon and drugs found in his apartment. The trial court concluded that the entry into the apartment which preceded the seizure and statement was unjustified. We reverse.

I

The facts are undisputed. During an unrelated field investigation at around midnight, two Miami police officers noticed two men outside an apartment complex. One of them, Brown, had an assault-type rifle in his right hand by his side and was walking to a vehicle with its engine running but the lights turned off. Disregarding police orders to stop, the men ran into an apartment which turned out to be Brown’s. The officers followed and, with the front door still open, entered the apartment where they found a rifle and over twenty grams of marijuana, which the defendant admitted were his.

The trial court granted a defense motion to suppress, concluding in part that Brown’s action “would have been a misdemeanor, and the officer cannot follow him into the home for that purpose.” We conclude however that (1) no constitutional violation occurred; and (2) Brown’s reliance on the knock and announce statute, section 901.19(1), Florida Statutes (2007), is misplaced.

II

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Warrantless searches or arrests in constitutionally protected areas, particularly one’s home, are per se unreasonable unless they fall within one of the established exceptions to the warrant requirement. See Shapiro v. State, 390 So. 2d 344 (Fla. 1980); Morales v. State, 407 So. 2d 321, 324-25 (Fla. 3d DCA 1981); Adams v. State, 240 So. 2d 529 (Fla. 3d DCA 1970). One of these is the existence of “exigent circumstances,”¹ which in turn include those which arise when police are conducting lawful “hot pursuits.” See Alvarez v. State, 573 So. 2d 400, 401 (Fla. 3d DCA 1991); see also Georgia v. Randolph, 547 U.S. 103, 117 n.6 (2006) (listing “hot pursuit,” “protecting the safety of . . . police officers,” “imminent destruction [of a] building,” “likelihood that [a] suspect will imminently flee,” and “a fairly perceived need to act on the spot to preserve evidence” as exigent circumstances that might justify a warrantless search of a residence); Katz v. United States, 389 U.S. 347 (1967); Lee v. State, 856 So. 2d 1133, 1136 (Fla. 1st

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DCA 2003); Gnann v. State, 662 So. 2d 406, 407 (Fla. 2d DCA 1995). See generally D. Gilsinger, Annotation, When is Warrantless Entry of House or Other Building Justified Under “Hot Pursuit” Doctrine, 17 A.L.R. 6th 327 (2006). That doctrine applies to this case.

It is true that, as the trial court found, the offenses observed by the officers, possession of an assault-type rifle, and fleeing from an officer were “only” misdemeanors. See § 775.082(4)(b), Fla. Stat. (2007); § 790.25(3), Florida Statutes (2007); § 790.053(3), Fla. Stat. (2007); see also § 775.082(4)(a), Fla. Stat. (2007); § 843.02, Fla. Stat. (2007). In Ulysse v. State, 899 So. 2d 1233, 1234 (Fla. 3d DCA 2005), however, this Court squarely held that the hot pursuit exception to the warrant requirement is nonetheless fully applicable.

The defendant suggests that the hot pursuit exception to the warrant requirement of the Fourth Amendment does not apply if the officers are pursuing a fleeing misdemeanant. That point has been resolved in this district adversely to the defendant’s position. See Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986). Hot pursuit of a fleeing misdemeanant is permissible where the misdemeanor is punishable by a jail sentence. Id. at 98.

Ulysse, , 899 So. 2d at 1234. Indeed, section 901.15, Florida Statutes (2008) specifically provides:

A law enforcement officer may arrest a person without a warrant when: (1) The person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the officer. An arrest for the commission of a misdemeanor or the violation of a municipal or county ordinance shall be made immediately or in fresh pursuit. [e.s.]

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See generally Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (observing that hot pursuit is the immediate or continuous pursuit of the suspect from the scene of a crime).

In Ulysse, as officers pursued a stolen vehicle, its passenger fled on foot, running into the defendant’s home. The officers followed into the house, where they spotted narcotics and a firearm. Ulysee was charged with possession and thereafter argued suppression of the evidence was required. We disagreed, observing that “on the facts here, a reasonable officer would have probable cause to believe that the passenger had participated in the theft of the car. . . or at the least, trespass in a conveyance” and “the officers were justifiably in hot pursuit of the passenger who ran into [Ulysse's] house” and the evidence was therefore admissible. Id. at 1234.

Similarly, in Gasset, officers observed the defendant driving erratically and a high-speed chase ensued. He drove onto his property and into an attached garage, with the officers immediately behind him. As Gasset exited his vehicle, the officers entered the garage and arrested him, ultimately charging him with DUI. We decided that the officers had probable cause to make a warrantless arrest and could enter the garage because:

Gasset waived any expectation of privacy he may have had in his garage by engaging in the high-speed chase previously described and leading the officers directly to the place of his arrest. The enforcement of our criminal laws, including serious traffic violations, is not a game

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where law enforcement officers are “it” and one is “safe” if one reaches “home” before being tagged. Accord State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App. 1984). “[A] suspect may not defeat an arrest which has been set in motion in a public place. . . by the expedient of escaping to a private place.” United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L. Ed. 2d 300, 306 (1976) (act of retreating into house cannot thwart an otherwise proper arrest); see also Bey v. State, 355 So. 2d 850 (Fla. 3d DCA 1978).

Gasset, , 490 So. 2d at 98-99 (footnote omitted).

The time of day, the presence of an assault-type rifle, the disregarded commands to stop, and the possible threat of an uncooperative suspect with a weapon, were overwhelming reasons to follow Brown into the home. In accordance with Ulysse and Gasset, we therefore find that no constitutional violation was involved in this case.

III

Brown’s argument for affirmance is based on the “knock and announce” statute, § 901.19(1), Fla. Stat. (2007)², as interpreted in Ortiz v. State, 600 So. 2d 530 (Fla. 3d DCA 1992). For several reasons we reject this position.

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1. In the first place, this case is decisively distinguishable from Ortiz. There, officers had received an anonymous tip that illicit activity was taking place in an apartment complex. After watching the defendant for thirty minutes, officers decided to question him. When Ortiz saw the officers approaching, he ran into an apartment, dropping a misdemeanor amount of marijuana—conduct unrelated to the reason for the chase. Relying on section 901.19, this court concluded the officers’ warrant-and-knock and announce-less entry after him was unlawful. See also Espiet v. State, 797 So. 2d 598, 603 (Fla. 5th DCA 2001) (concluding that the State failed to present evidence of exigent circumstances excusing the deputies’ failure to obtain an arrest warrant); M.J.R. v. State, 715 So. 2d 1103, 1104 (Fla. 5th DCA 1998) (concluding that a warrantless non-emergency arrest of a suspect at his or her home is presumed illegal); compare Rucker v. State, 302 So. 2d 490, 491 (Fla. 2d DCA 1974). The officers’ “chase” of Brown was a far cry from what occurred in Ortiz, which was in sum not in “hot” or “fresh,” but rather lukewarm and stale pursuit. See When is Warrantless Entry of House or Other Building Justified, supra §§ 17-40 passim (citing cases where entries held unjustified as not true hot pursuits). By virtue of their respective resemblance or lack of it to our case, Ortiz does not control and Ulysse and Gasset do.

Moreover, we find Ortiz‘ analysis of the statute even on its own facts quite problematic. As we see it, the portion of the statute on which it primarily relies,

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that the police may enter “when authorized for a felony without a warrant,” which Ortiz takes as negatively implying the reverse, that is, that police cannot enter, presumably even in hot pursuit, when making a warrantless arrest for a misdemeanor, cannot be properly read in that way. On its face, the quoted provision applies only when, as in U.S. v. Banks, 540 U.S. 31, 43 (2003), the police receive no reply in response to a lawful knock and announcement: it cannot apply when, as in this case, no knock and announce is required or appropriate. See id. at 36 (“the [knock and announce] obligation gives way when officers `have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or. . . would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence,’”) (quoting Richards v. Wisconsin, 520 U.S. 385, 394 (1997)). If literally applied, the court’s language in Ortiz unacceptably would nullify the portion of section 901.15 which authorizes an arrest after a fresh pursuit without any exception when a closed door, much less an open one, as here, intervenes.

2. Approaching the issue from a broader perspective, we believe that for fundamentally the same reasons that a true hot pursuit is excepted from the warrant requirement, it must, as a matter of law and logic, also preclude and application of

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the knock and announce rule. The two doctrines simply cannot co-exist.³ It would be no less than ridiculous to put such a requirement on officers in such situations. See State v. Webb, 398 So. 2d 820, 824 (Fla. 1981) (“construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided.”); State v. Olson, 586 So. 2d 1239, 1243 (Fla. 1st DCA 1991) (statutes must be read so as to “avoid unconstitutional results . . . and absurd ones”). In this case, it would be both purposeless and dangerous for the law to require an officer to knock and announce his presence to an armed defendant like Brown who obviously knew he was there, who is being freshly pursued, and who had already specifically disobeyed commands to stop. See Brigham City, Utah v. Stuart, 547 U.S. 398, 406-7 (2006) (concluding that knocking on the front door would have been futile); Jones v. State, 440 So. 2d 570, 573 (Fla. 1983); Benefield v. State, 160 So. 2d 706, 710 (Fla. 1964) (observing “even if probable cause exists for the arrest of a person, our statute is violated by an unannounced intrusion in the form of a breaking and entering any building, including a private home, except . . . where the person within already knows of the officer’s authority

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and purpose. . . .”); Van Allen v. State, 454 So. 2d 49, 51 (Fla. 4th DCA 1984) (“knock and announce is unnecessary `where the person within already knows of the officer’s authority and purpose `” (quoting Benefield, , 160 So. 2d at 710)); Moreno v. State, 277 So. 2d 81, 83 (Fla. 3d DCA 1973); see generally Hudson v. Michigan, 547 U.S. 586;⁴ When is Warrantless Entry of House or Other Building Justified, supra.⁵

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3. Finally we believe that reversal is required even if we are wrong on the knock and announce point. This is so because of the holding of Hudson that even established violations of the principle do not implicate the exclusionary rule so as to suppress pertinent evidence. We follow Hudson both because we are persuaded by its reasoning on the point⁶ and because we are required to do so by Article 1,

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section 12,⁷ of the Florida Constitution. See State v. Betz, 815 So. 2d 627, 631 (Fla. 2002). Contra Cable v. State, 18 So. 3d 37, 39-40 (Fla. 2d DCA), review granted, 22 So. 3d 539 (Fla. 2009) (certifying question).

V

The order under review is therefore reversed and the cause remanded for denial of the motion to suppress.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

  K&A = No HP
  HP = No K&A

—————

Courtesy of David Edelstein

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O.B., a juvenile, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-1726.

District Court of Appeal of Florida, Third District.

Opinion filed May 12, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 09-1716-B, Abby Cynamon, Judge.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender and Jessica del Valle and Aileen Peñate, Certified Legal Interns, for appellant.

Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.

Before GERSTEN, SHEPHERD, and CORTIÑAS, JJ.

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CORTIÑAS, J.

Fifteen-year-old O.B., his brother, and a friend were on their way to play basketball at an elementary school near the brothers’ home when it began pouring rain. The youths sought shelter under a neighbor’s carport. Just as the rain was abating, a police car pulled up, and one of the officers, with his gun drawn, approached the youths. This scared them, and they ran away. O.B. became separated from the others and hid in someone’s backyard, where he was soon apprehended by a newly-arrived officer, who ordered him to lie face down in the mud and handcuffed him. Then, the boy testified, the officers kicked him in the face and threw him over a fence; when his father arrived, he found O.B.’s eye swelling shut and his shirt torn.

O.B. was charged with resisting an officer without violence. After an adjudicatory hearing at which one of the original officers and the arresting officer both testified, the trial judge indicated that she would base her ruling on the answer to a single question: Is responding to a BOLO tantamount to the lawful execution of a legal duty? Answering that question in the affirmative, the court issued O.B. a judicial warning and withheld adjudication of delinquency, which O.B. now appeals.

O.B. argues that the State failed to establish either that the officers had the requisite reasonable suspicion to detain him or that he fled with knowledge that the officers intended to detain him.

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In order

[t]o convict [a defendant] of resisting or obstructing an officer without violence, the State is required to prove that (1) the officer was engaged in the lawful execution of a legal duty; and, (2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.

V.L. v. State, 790 So. 2d 1140, 1142 (Fla. 5th DCA 2001) (internal citations omitted).

First, “the [S]tate must establish that the officer was engaged in the lawful scope of his or her duties.” M.M.H. v. State, 929 So. 2d 628, 629 (Fla. 3d DCA 2006) (citing B.D.H. v. State, 903 So. 2d 390 (Fla. 3d DCA 2005)). “The element of lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrantless arrest.” E.A.B. v. State, 851 So. 2d 308, 311 (Fla. 2d DCA 2003). Otherwise, “the individual has a right to ignore the police and go about his business.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000).

A stop is justified when an officer observes facts giving rise to a reasonable and well-founded suspicion that criminal activity has occurred or is about to occur. In turn, whether an officer’s well-founded suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the investigatory stop and is based solely on facts known to the officer before the stop.

C.E.L. v. State, 24 So. 3d 1181, 1186 (Fla. 2009) (internal citations omitted). “For reasonable suspicion justifying a detention to exist, `the detaining officer[] must have a particularized and objective basis for suspecting the particular person

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stopped of criminal activity.’” Tillman v. State, 934 So. 2d 1263, 1273 (Fla. 2006) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). “Terry v. Ohio, 392 U.S. 1, 21 (1968), . . . requires `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” Id. The officer “must be able to articulate something more than an `inchoate and unparticularized suspicion or “hunch.”‘” United States v. Sokolow, 490 U.S. 1, 7 (1968). Once these requirements are satisfied, a Terry stop should be “`a minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go his way.’” D.T.B. v. State, 892 So. 2d 522, 524 (Fla. 3d DCA 2004) (quoting Wardlow, , 528 U.S. at 126).

The trial court, on the basis of Billips v. State, 777 So. 2d 1094 (Fla. 3d DCA 2001), and E.A.B., determined that, as a matter of law, simply responding to a BOLO constitutes the lawful execution of a legal duty. However, both of these cases support the opposite determination: that police officers seeking to detain an individual in response to a BOLO are not lawfully executing a legal duty unless they have the requisite reasonable suspicion. In Billips, this Court held that the fact that the defendant was driving a car matching the description in the BOLO provided the probable cause necessary to “seiz[e] the vehicle as evidence in their investigation of the crime.” Billips, , 777 So. 2d at 1095. In E.A.B., the Second

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District found that, despite the issuance of a BOLO, “[t]he testimony simply did not establish the officers’ well-founded, articulable suspicion of criminal activity,” and therefore “the State did not establish that . . . the officers were engaged in the lawful execution of a legal duty when they pursued and apprehended” the defendant. E.A.B., , 851 So. 2d at 311-12.

Similarly, in this case, “there were no facts or circumstances supporting a reasonable suspicion that [O.B.] had committed a crime, and, hence, there was no probable cause to arrest [him]. . . . Therefore, as there was not going to be an arrest, logically, [the juvenile] cannot be charged with having resisted an arrest.” D.T.B., , 892 So. 2d at 525; see also D.G. v. State, 831 So. 2d 256 (Fla. 3d DCA 2002). All that the officer testified to was that he was dispatched in response to a burglary in the neighborhood. The trial court deemed the contents of the BOLO inadmissible hearsay; therefore, it is unknown whether a description of the suspects was even given, much lesswhether the youths matched such a description. The State says merely that the officers “observed three African-American males in the backyard,” not that they observed them engaging in any criminal or suspicious conduct.

O.B. draws parallels between his situation and Jean v. State, 987 So. 2d 196 (Fla. 4th DCA 2008), and L.M. v. State, 694 So. 2d 118 (Fla. 3d DCA 1997). In the former case, as here, the officers were dispatched in response to an attempted

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burglary in a residential neighborhood, it was the middle of the day, and Jean had “a reasonable explanation why he was in the neighborhood.” Jean, , 987 So. 2d at 198. Furthermore, “[d]espite the fact that Jean was found in close proximity to the scene of the crime,” the State failed to provide any “evidence that he or his companions were acting suspiciously,” and the officer’s conclusory statement that Jean met the BOLO’s description of one of the suspects was insufficient under the totality of the circumstances to “provide a reasonable suspicion of criminal activity that would justify the stop and detention.” Id. In L.M., police had detained several youths near the location of a burglary merely for wearing clothing fitting the BOLO description, although the youths were doing nothing unusual and “were not involved in any criminal activity.” L.M., , 694 So. 2d at 119. This Court held that the officer did not have reasonable suspicion to detain the juveniles.

The State contends that Jean and L.M. are distinguishable from the instant case because here, upon seeing the police, the youths took flight, and therefore, C.E.L. is more pertinent. There, the Florida Supreme Court found the defendant guilty of resisting arrest, basing its decision on Wardlow, which “held that a defendant’s `unprovoked flight upon noticing the police’ in a high-crime area was suggestive of wrongdoing and therefore provided reasonable suspicion justifying an investigatory detention.” C.E.L., , 24 So. 2d at 1183, n.4 (citing Wardlow, , 528 U.S. at 124-26).

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“[A]s a general rule, flight, standing alone, is insufficient to form the basis of a resisting without violence charge.” C.E.L., , 24 So. 3d at 1186 (citing Mosley v. State, 739 So. 2d 672, 675 (Fla. 4th DCA 1999)); see D.T.B., , 892 So. 2d at 525. Even “a suspect’s mere presence at the scene of a crime and flight therefrom is insufficient . . . .” F.B. v. State, 605 So. 2d 578, 578 (Fla. 3d DCA 1992) (citing M.F. v. State, 549 So. 2d 225 (Fla. 3d DCA 1989)).

However, “[f]light can support a resisting charge if the state proves that (1) the officer had an articulable well-founded suspicion of criminal activity that justifies the officer’s detention of the defendant, and (2) the defendant fled with knowledge that the officer intended to detain him or her.” V.L., , 790 So. 2d at 1143. As this Court observed, “Wardlow did not criminalize running from the police. Wardlow only held that running from the police in a high crime area gave the police reasonable suspicion to allow `officers confronted with such flight to stop the fugitive and investigate further.’” D.T.B., , 892 So. 2d at 524 (quoting Wardlow, , 528 U.S. at 125) (emphasis added).

C.E.L. conceded the first point of V.L., “that Wardlow provided the officers with reasonable suspicion to conduct an investigatory stop,” as his flight did take place in a high-crime area. C.E.L., , 24 So. 3d at 1188. In contrast, O.B. maintains that the officers had no reasonable suspicion to detain him. Indeed, they did not, both for the reasons established above and because of the absence of any testimony

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that O.B.’s flight took place in a high-crime area, an element essential to “create” reasonable suspicion.

C.E.L. virtually admitted the second point of V.L. by failing to “argue that he was unaware of the officers’ verbal commands to stop or of their intent to detain him.” C.E.L., , 24 So. 3d at 1188. Here, in contrast, there is no evidence that O.B. heard any order to stop; in fact, he testified that when he “took off running,” he did not hear the officers issue a command, and he was unaware whether an officer was after him in particular. The State therefore failed to prove the second requirement, that “an individual who flees must know of the officer’s intent to detain him.” C.E.L., , 24 So. 3d at 1188.

Neither of the requirements in either V.L. or C.E.L.—(1) “flight in a high-crime area creat[ing] the reasonable suspicion sufficient to warrant a lawful investigative stop,” or (2) “continued flight in knowing defiance of the officer’s lawful order to stop constitut[ing] the offense of obstructing without violence”—is present here. Id. at 1189. We therefore find that the trial court erred in finding O.B. guilty of resisting an officer without violence.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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JOHN B. WILLIAMS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-5812.

District Court of Appeal of Florida, Second District.

Opinion filed May 12, 2010.

Appeal from the Circuit Court for Hillsborough County, William Fuente, Judge.

Jackson Stuart Flyte, Regional Counsel, Second District, Bartow, and Kimberly Nolen Hopkins, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

John B. Williams appeals his convictions for aggravated battery and battery. We affirm the conviction for battery without discussion. Concerning the conviction for aggravated battery, this offense was actually committed by another

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person, and Mr. Williams was convicted as a principal. He argues that the evidence warranted, in addition to an instruction on principals, an instruction on the issue of an independent act by another person. He maintains the omission of that instruction was not harmless in this case. See Fla. Std. Jury Instr. (Crim.) 3.6(l). Although there may be occasions in which a defendant is entitled to both an instruction on principals and an instruction on an independent act by another person, in this case we conclude the trial court correctly decided the instruction on principals was adequate to present the issue to the jury. Accordingly, we affirm the conviction for aggravated battery.

I.

The charges in this case arose from a parking lot brawl on July 29, 2006. On that day, a Saturday, a group of acquaintances gathered for an afternoon barbeque at an apartment complex in Temple Terrace. Among the group were Desmond and Rudell Ball, who were working on a car in the parking lot. When John Williams arrived in the parking lot with his brother, Brandon Williams, and cousin, Willie Williams, a fight broke out between the Williamses and the Balls.

For their involvement in the fight, each of the Williamses was charged with one count of aggravated battery with great bodily harm and use of a weapon arising from the beating of Rudell Ball. Each was also charged with one count of aggravated battery with a deadly weapon arising from the beating of Desmond Ball. John Williams was convicted of simple battery for the beating of Desmond Ball. We focus in this case on the conviction arising from the beating of Rudell Ball.

The three defendants proceeded together to trial by jury. At that trial, the witnesses presented conflicting versions of the events. In general, the State’s theory of

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the case was that the Williamses arrived at the scene in one car prepared to attack the two victims with various weapons. There was evidence, albeit conflicting, to support this theory. Thus, it was the State’s theory that the men in the car had a common plan to initiate this fight with the Balls before they arrived at the scene of the crime.

On the other hand, John Williams’s theory of the case was that he arrived at the location to pay child support to Desmond Ball’s sister, who is the mother of Mr. Williams’s three children. He and Desmond Ball disliked one another before the events of this day. He testified he drove to the apartment complex with Brandon and Willie Williams to deliver the check. After arriving, he left his car and began looking for the correct apartment, believing Willie and Brandon remained in the car. He testified he encountered two men, one of whom he recognized as Desmond Ball. After exchanging words, John Williams and Desmond Ball began fighting. John Williams testified that he was stabbed through his forearm while fighting with Desmond Ball. This fact was confirmed by one of the State’s witnesses, who claimed responsibility for the stabbing. John Williams recounted that as he ran to leave, he noticed someone lying on the ground. He later learned this person was Desmond Ball’s uncle, Rudell Ball. In his testimony, Willie Williams explained it was Brandon Williams who hit Rudell Ball.

Thus, John Williams maintained that he had no plan or intention to be involved in a fight with the Balls prior to arriving at the scene. Instead, after he separated from the other occupants of the car, he alone was involved in a fight with Desmond Ball. The events involving Rudell Ball were totally separate from his fight with Desmond Ball, and these two events had not been planned in concert.

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During the charge conference, each of the Williamses requested an independent act jury instruction. The court declined to give the instruction, reasoning in part that the instruction was not applicable where there was no evidence presented by any defendant of any common design or unlawful act. The jury found each defendant guilty as charged of the aggravated battery on Rudell Ball and guilty of the lesser-included offense of battery as to Desmond Ball. For the aggravated battery, John Williams was sentenced to ten years’ imprisonment followed by twenty years’ probation.

II.

We review the trial court’s withholding of a requested jury instruction under an abuse of discretion standard. Brown v. State, 11 So. 3d 428, 432 (Fla. 2d DCA 2009) (citing Worley v. State, 848 So. 2d 491, 491 (Fla. 5th DCA 2003)). In criminal cases, the trial court’s discretion is limited because “a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory, and so long as the theory is recognized as valid under the law of the state.” Worley, , 848 So. 2d at 492; see also Vazquez v. State, 518 So. 2d 1348, 1350 (Fla. 4th DCA 1987).

Thus, the question in this case is whether there was any evidence, however slight, to support an independent act instruction in addition to an instruction on principals. More specifically, we consider what evidence was necessary to support giving the independent act instruction and whether that evidence was presented to the jury under the theories argued. To address these questions, it is helpful to first examine the instructions on principals and on independent act.

The standard jury instruction on principals states:

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

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

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

Fla. Std. Jury Instr. (Crim.) 3.5(a).

The standard jury instruction on independent act states:

If you find that the crime alleged was committed, an issue in this case is whether the crime of (crime alleged) was an independent act of a person other than the defendant. An independent act occurs when a person other than the defendant commits or attempts to commit a crime

1. which the defendant did not intend to occur, and

2. in which the defendant did not participate, and

3. which was outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant.

Fla. Std. Jury Instr. (Crim.) 3.6(l).

If one examines the principals instructions, it is entirely adequate to encompass Mr. Williams’s theory that he was not a principal to the beating of Rudell Ball. The State was required to prove beyond a reasonable doubt that Mr. Williams had a conscious intent that the act of beating Rudell Ball “be done,” and it was also required to prove that he did some act or said some word which was intended to and did incite, cause, encourage, assist or advise the other person or persons to actually commit this

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beating. See Fla. Std. Jury Instr. (Crim.) 3.5(a). Depending on which version of the evidence it believed, the jury could have relied on the principals instruction to acquit Mr. Williams. The independent act instruction would not have added anything to his defense.

The requirement in Florida for an instruction in a criminal case on an independent act arose in connection with the felony murder rule. In felony murder cases, the courts have long required a causal connection between the murder and the underlying felony—specifically, that the death occurred in furtherance of the felony. See, e.g., Adams v. State, 310 So. 2d 782 (Fla. 2d DCA 1975), vacated on other grounds. In these cases, if the lethal act was not committed in furtherance of the common scheme or design, then the murder may be shown to be “an independent act of another.” Bryant v. State, 412 So. 2d 347, 350 (Fla. 1982). Thus, the act is said to be “independent” not only because it is committed by another person, but because it is independent of the common scheme or design to commit a felony.

The independent act doctrine “arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, `which fall outside of, and are foreign to, the common design of the original collaboration.’” Ray v. State, 755 So. 2d 604, 609 (Fla. 2000) (quoting Dell v. State, 661 So. 2d 1305, 1306 (Fla. 3d DCA 1995)). Our caselaw has not limited the independent act instruction’s application to felony murder cases. See, e.g., Calabrese v. State, 886 So. 2d 396, 398-99 (Fla. 1st DCA 2004) (holding court erred in refusing to give independent act instruction in prosecution for conspiracy to traffic in cocaine); Barfield v. State, 762 So. 2d 564, 566 (Fla. 5th DCA 2000) (finding error in

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refusal to give independent act instruction in prosecution for robbery). Additionally, in these cases, like those felony murder cases requiring the instruction, there was evidence of some common plan or design. See, e.g., Calabrese, , 886 So. 2d at 398 (“[T]he jury could have found that although Appellant and Rauf conspired to purchase cocaine, Rauf acted independently in deciding to buy a greater weight of cocaine[.]“).

As recited above, the standard instruction, which the Florida Supreme Court adopted in 1997, defines an independent act to include one which is “outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant.” Fla. Std. Jury Inst. (Crim.) 3.6(l). Mr. Williams is essentially arguing that he is entitled to this instruction because the beating of Rudell Ball was separate from his individual “unlawful act” of battering Desmond Ball.

We interpret the independent act instruction to require some evidence of a common design or common unlawful act. The State claims the three men went to the scene of the crime to engage in a brawl with all comers. Mr. Williams claims that he simply got into a fight with Desmond Ball after he arrived, that one of the other occupants fought Rudell Ball, and that, overall, the occupants of the car had no common plan. In the absence of any evidence of a common plan to batter Desmond Ball but not Rudell Ball, the trial court did not abuse its discretion in declining to give an independent act instruction.

To the extent that Mr. Williams argues that he was entitled to the independent act instruction because there was evidence that he committed a separate “unlawful act,” we believe Mr. Williams is reading too much into the jury instruction. The caselaw in which this instruction is given does not appear to contain an example of a

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crime where the defendant had no common plan to commit some crime. For example, Calabrese, , 886 So. 2d at 398-99, dealt with a conspiracy to buy and, allegedly, traffic in cocaine; Barfield, , 762 So. 2d at 565, involved a plan to steal an ATM. For the reasons explained above, we conclude the instruction is describing a “common . . . unlawful act contemplated by the defendant.” It is this common plan or act from which the charged offense is urged to be “independent.” If this were not the case, then a defendant would be entitled to both an instruction on principals and one on independent act in most, if not all, cases in which the principals instruction is given.

Mr. Williams also argues that two baseball bats that were recovered from his apartment should not have been introduced into evidence. We agree that there is little or nothing in this record that connects these two bats to the charged offenses. Given that the bats were ordinary baseball bats common in many American homes, we fail to see their relevance in this case. On the other hand, for essentially the same reasons, we conclude that the admission of these bats, which was not a feature of the trial, was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

Affirmed.

CASANUEVA, C.J., and NORTHCUTT, J., Concur.

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

Courtesy of David Edelstein

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

No. 4D07-4555.

District Court of Appeal of Florida, Fourth District.

May 12, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michael L. Gates, Judge, L.T. Case No. 05-1087 CF10A.

Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, J.

A jury convicted Michael Wolfe of the first-degree murder of David Jackson, and the trial court adjudicated him guilty and sentenced him to life in prison. On appeal, Wolfe argues that the trial court erred in overruling certain defense objections during his trial. We disagree and affirm Wolfe’s judgment of conviction and sentence.

The narrative which follows is recounted from the testimony at trial most in harmony with the jury’s verdict. Sometime around 1983, the victim, nineteen-year-old Jackson, met Barbara Britton. She became pregnant, and the couple married. Barbara continued to live with her parents though, and after she gave birth to their son, Jackson continually had to fight for visitation. Eventually, they divorced. In June 1987, Barbara met and married the defendant, Michael Wolfe, and they moved from Broward County to Arizona with the baby. In November 1987, Jackson and his friend, Alvaro Bracho, visited Barbara and the baby in Arizona.

Subsequently, Jackson was awarded visitation in Florida during the second and third week of July 1988. Jackson told his mother, Judy Carlson, that he wanted to get back together with Barbara. On June 25, 1988, prior to Barbara and the baby’s scheduled arrival in South Florida, Carlson called her son at 8 p.m. His roommate, Bracho, explained that Jackson had received a phone call from a woman, showered, borrowed a couple of dollars, and said he would be back later. Carlson never heard back from her son, and he neither went to work the next day, nor picked his brother up from the airport as planned.

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Bracho and Carlson reported Jackson missing. On September 22, 1988, police recovered Jackson’s car at the Fort Lauderdale airport. It had been there for only thirty-five days, even though Jackson had been missing for eighty-eight. No fingerprints were found in the car, but officers recovered a six-pack of Heineken with one beer missing and a box of bullets. Jackson owned several guns and always kept one in his bedroom and one in his car. The gun he was known to keep under the front seat of his car has never been recovered.

During the summer of 1989, a construction worker, building a Wal-Mart in Broward County, discovered some bones and notified the police. The medical examiner determined the bones were human, so officers returned to the scene and recovered an additional twenty-one bones. The bones did not show any sign of trauma, and did not have any sufficient identifying factors, especially because a skull was never found.

In 2003, police contacted Carlson regarding Jackson’s cold case. Carlson supplied them with a letter written by Jackson to a friend named Sue five days before he went missing. In Jackson’s letter to Sue, he mentioned Barbara’s impending visit and his hope that they would get back together. Carlson also provided the officers with a DNA sample, which was used to match the bones discovered at the Wal-Mart construction site to her son. There was only a six in 10,000 chance this match was a coincidence.

After identifying the bones, the missing persons unit recommenced investigating the case. Wolfe had adopted Jackson’s son after his disappearance, but in 1993, Wolfe and Barbara divorced. In 2003, Wolfe lived in Ohio. Pembroke Pines officers traveled to his home, and though Wolfe was not there, he voluntarily met the officers at the local police station the next day. While at the station, Wolfe wrote a letter, explaining that three months before Jackson disappeared, Barbara, the baby, and he visited Barbara’s parents in South Florida. Barbara’s parents lived approximately two miles from the Wal-Mart. Wolfe and Barbara’s father, Harry, went for a walk, and Harry expressed concern about allegations that Jackson abused the baby. Harry suggested that Jackson “should be gone.” Wolfe, unsure if Harry was serious, advised that the park they were in would be a good spot to dispose of a body due to salt in the sand. Wolfe suggested using Barbara as bait to lure Jackson to a place where Harry could use a small caliber gun, a .22, to shoot Jackson in the head once or twice. Wolfe explained that he did not know if Harry would listen, and when Barbara and the baby returned to Florida the week of Jackson’s disappearance, there was no mention to

Page 3

Wolfe of any foul play. According to Wolfe, Barbara and the baby had simply gone to South Florida before the scheduled July visitation in order to see Barbara’s parents.

Upon further investigation, police learned Wolfe had been a military police officer in the air force, and twenty-one days before Jackson’s disappearance, he obtained a federal firearms license. His gun sales records reflected he had sold a firearm to Nancy Graham. Graham, who resided in Alabama in 2003, was contacted by police and explained that she had been married to Wolfe from 1993 to 1998. Prior to divorcing, Barbara and Wolfe moved from Arizona back to South Florida. After they split, Wolfe met Graham and began living with her in Fort Lauderdale. One night, while sitting on the patio drinking alcohol, Wolfe mentioned to Graham that his son’s biological father, Jackson, had gone missing. He stated that Barbara and her father had come up with a plan to get rid of Jackson because Jackson had been abusing the baby. Wolfe went along with the plan, and he and Barbara flew from Arizona to Fort Lauderdale under assumed names, using other people’s identification cards. Then, Barbara contacted Jackson and asked him to meet her at a motel, but not tell anyone she was in town. Wolfe was in the motel bathroom, drunk. When Jackson arrived, Wolfe shot him in the head twice. Barbara and Harry cleaned up; then, Wolfe and Harry took Jackson’s car to the airport. Next, Wolfe and Harry took Jackson’s body to a lot and buried him. Subsequently, Harry learned about construction of a Wal-Mart at that site, so Wolfe and Barbara again flew from Arizona to Florida, and Wolfe and Harry dug up the bones and put them in the trashcans outside Harry’s home.

Based on Graham’s statement, an arrest warrant issued for Wolfe. When arrested during a traffic stop in Ohio, Wolfe replied, “I’m f****d.” The story was on the news, and Carol Larson, Wolfe’s wife of twelve years before he met Barbara, learned about Wolfe’s arrest. She contacted officers and explained that several years after Wolfe and Barbara divorced, she was attending nursing school outside of Orlando, and Wolfe contacted her. This was during the time Wolfe lived with Graham. One night, while drinking, Wolfe confessed to killing Barbara’s exhusband in a motel room by twice shooting him in the head.

Wolfe was indicted for first-degree murder. At trial, he testified that only Barbara and the baby were in Florida on the days surrounding Jackson’s disappearance. He denied confessing to Jackson’s murder to either Graham or Larson, but admitted to alcoholism. The jury found him guilty as charged, and the trial court sentenced him to life in prison.

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Wolfe avers that the trial court erred in admitting, over objection, his statements to Graham and Larson because the State failed to establish the corpus delicti of murder. “To admit a defendant’s confession, the state must prove the corpus delicti either by direct or circumstantial evidence. . . . [P]roof beyond a reasonable doubt is not mandatory.’” Barrow v. State, 27 So. 3d 211, 220 (Fla. 4th DCA 2010) (quoting Meyers v. State, 704 So. 2d 1368, 1369 (Fla. 1997) (citation omitted)). “`In order to prove corpus delicti in a homicide case, the state must establish: (1) the fact of death; (2) the criminal agency of another person as the cause thereof; and (3) the identity of the deceased person.’” Id. (quoting Meyers, 704 So. 2d at 1369). Wolfe specifically contests whether there was sufficient evidence proving that the criminal agency of another person caused Jackson’s death. We find Wolfe’s argument unpersuasive.

In order to establish that the criminal agency of another person was the cause of death for purposes of proving the corpus delicti in a homicide case, all that is necessary is that the evidence “`tends’ to show that a homicide was committed or allows a reasonable inference that the alleged victim could be dead due to a criminal agency.” Davis v. State, 582 So. 2d 695, 700 (Fla. 1st DCA 1991). It is not necessary that the evidence establish that Wolfe committed the crime. Barrow, 27 So. 3d at 220. The circumstantial evidence in the instant case establishes that Jackson was a responsible person, who paid his bills the day before he went missing; he was close to family and friends and spoke with them regularly; he left his home with only a couple of dollars; and later, his car was found at the airport but his dismantled skeletal remains were found in a once-deserted field two miles from his ex-wife’s parents’ home. Based on the record, we hold that the State presented sufficient circumstantial evidence to allow the reasonable inference that Jackson could be dead due to someone’s criminal agency, thereby establishing the corpus delicti of murder.

Next, Wolfe argues that the trial court erred in permitting the State, over objection, to ask Graham and Larson about Wolfe’s possession of other people’s identification cards during their respective relationships with him, as this amounted to evidence of a collateral offense. Graham, Wolfe’s wife after Barbara, testified that, in 1996, she had moved back to Georgia and Wolfe decided he wanted to try to reconcile with her and went there as well. While in Georgia, Graham testified that she had gone through Wolfe’s briefcase “and there was a lot of I.D.’s in there that were not his.” Larson, Wolfe’s wife before Barbara, was asked if Wolfe ever had any fake I.D.’s while they were married. Larson replied:

Page 5

Yes. When we were first married or getting ready to get married, he had — I don’t know five or six driver’s licenses, social security cards of different people. It was weird. Some were older guys, some were young people. I said what is this? He said, oh, you know, people lose their wallets. I was like you wouldn’t give them back? What are you doing with this stuff? He said well, hold on to them. You never, never know.

“Admissible evidence of uncharged crimes falls into two categories: `similar fact’ evidence and `dissimilar fact’ evidence.” Victorino v. State, 23 So. 3d 87, 98 (Fla. 2009) (quoting Zack v. State, 753 So. 2d 9, 16 (Fla. 2000)). Dissimilar fact evidence is governed by the general rule of relevancy in section 90.402, Florida Statutes, which states that generally all relevant evidence is admissible unless excluded by law. Id. at 98-99. “A trial court’s determination that evidence is relevant and admissible `will not be disturbed absent an abuse of discretion.’” Id. at 98 (quoting Taylor v. State, 855 So. 2d 1, 21 (Fla. 2003)). We find no abuse of discretion in the trial court’s admission of the testimony of Larson and Graham concerning Wolfe’s possession of fake I.D. cards.

Placing Wolfe in Florida at the time of the offense was a critical element of the State’s case. Graham testified that Wolfe told her that he and Barbara had flown from Arizona into Fort Lauderdale under assumed names using someone else’s I.D. cards. A police officer’s testimony that there was no independent evidence to corroborate that a “Michael A. Wolfe” flew into Florida from the Southwest or back around June 25, 1988, suggested that Wolfe’s possession of other people’s identifications could be relevant. Moreover, even if testimony about Wolfe’s possession of the identifications was improper because of the somewhat wide “before and after” time span involved, we find the error was harmless. If the jury found Graham and Larson credible, then the jury would have found Wolfe guilty regardless of their testimony about the identifications, and if the jury did not find them credible, the testimony about the identifications still would not have affected its verdict. See Ventura v. State, 29 So. 3d 1086, 1090-91 (Fla. 2010) (citing State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)) (rejecting overwhelming evidence test as proper analysis of harmless error and noting that proper analysis considers whether there is a reasonable possibility that the error affected the verdict).

Last, Wolfe contends that the trial court erred in permitting the State to admit at trial, over objection, the letter written by Jackson five days before his disappearance because it was hearsay. In the letter, Jackson

Page 6

stated his son and ex-wife were coming to visit him, and he hoped things would go well and that they would move in with him. “[O]rdinarily, a victim’s state of mind is not a material issue, nor is it probative of a material issue in a murder case. However, there are some exceptions to this general rule.” Brooks v. State, 787 So. 2d 765, 771 (Fla. 2001) (citation omitted). For example, the “victim’s state of mind may be relevant to an element of the crime.” Id. (citing Stoll v. State, 762 So. 2d 870 (Fla. 2000)). Here, Jackson’s bones did not show any sign of pre-mortem injury, and as discussed above, the State bore the burden of demonstrating that Jackson’s death was the result of the criminal agency of another. See Barrow, 27 So. 3d at 220. Thus, the State, in its case in chief, needed to demonstrate Jackson had been murdered, as opposed to, for example, having run away or committed suicide. The instant letter falls within the state-of-mind hearsay exception, see § 90.803(3)(a)1., Fla. Stat. (2007), because it demonstrates that Jackson wanted to reconcile with Barbara and wanted to be a father to his son. The letter would also explain Jackson’s subsequent conduct in clandestinely meeting Barbara at a motel room, corroborative of the testimony that it was there that he was ambushed by Wolfe.

Accordingly, and based on the foregoing, we find no error in the issues on appeal and affirm.

Affirmed.

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

Not final until disposition of timely filed motion for rehearing.

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RICKY BERNARD YOUNG, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-4266.

District Court of Appeal of Florida, Fourth District.

May 12, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County, Sherwood Bauer, Jr., Judge, L.T. Case No. 472005CF000533B.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

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

On Motion for Rehearing

WARNER, J.

We grant appellant’s motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

Appellant, Ricky Young, appeals his convictions for robbery with a firearm or other deadly weapon, and other charges, arguing that the court erred in denying his motion to suppress evidence, because the officer who initiated the vehicular stop which preceded the search did not have probable cause. There was, however, evidence of speeding as well as a reasonable suspicion that the occupants of the vehicle had committed a crime. He also claims that the court improperly admitted a test that a detective made to determine the operability of a firearm. We conclude that the test was relevant and admissible. Finally, he challenges his sentence, claiming that the trial court relied on improper factors. We reject this claim as well, as he did not object to their consideration at sentencing, and the issue is not cognizable under Rule 3.800(b)(2). While appellant claims that we should consider this a fundamental error, we disagree, concluding that no error in the sentencing process occurred. We thus affirm on all issues.

Young and two others robbed an employee of a Domino’s restaurant. The employee was waiting by his vehicle outside the restaurant after it closed. The assailants hit him with a gun, causing significant injury, took his money and the food he was eating, rummaged through his vehicle, and fled in their own car. The police arrived shortly after the

Page 2

incident and broadcast in a BOLO the employee’s description of his assailants. Another deputy on road patrol at a location close to the Domino’s restaurant heard the BOLO and observed a vehicle driving at a high rate of speed heading out of town on a rural road. The deputy initiated a stop. The description in the BOLO of the assailants matched the persons in the vehicle. A search revealed the exact amount of money taken from the victim, a cell phone, a BB gun, and a Domino’s box. The victim identified Young as one of his assailants.

The state charged Young with robbery with a firearm, aggravated assault with a weapon, and burglary of a conveyance. He was tried with his co-defendant and the jury convicted Young of all charges. The court sentenced Young to life in prison for the robbery and lesser sentences for the other crimes.

Young contends that the trial court erred in admitting evidence seized after a stop of his vehicle without probable cause. We agree with the trial court that Young’s speeding justified the stop. See Hurd v. State, 958 So. 2d 600, 602 (Fla. 4th DCA 2007) (citing Whren v. United States, 517 U.S. 806, 810 (1996)) (“Under search and seizure law, the stopping of a motorist is reasonable where a police officer has probable cause to believe a traffic violation has occurred.”). The officer’s trained observation of Young speeding sufficed to provide probable cause for the stop. See State v. Allen, 978 So. 2d 254, 255 (Fla. 2d DCA 2008) (explaining that “police may stop a vehicle for a speeding violation based on the officer’s visual or aural perceptions and that verification of actual speed by the use of radar equipment or clocking is not necessary to justify the stop”); see also Byrd v. State, 964 So. 2d 806, 806 (Fla. 4th DCA 2007).

We also agree with the trial court that the officer initiating the stop had a reasonable suspicion that Young had just committed a crime based upon the factors set forth in Jean v. State, 987 So. 2d 196, 198 (Fla. 4th DCA 2008) (citing Rodriguez v. State, 948 So. 2d 912, 914 (Fla. 4th DCA 2007)). In Jean we said: “In determining the legality of a stop as a consequence of a BOLO, this court has looked to factors such as the length of time and distance from the offense, specificity of the description of the alleged perpetrator(s), the source of the BOLO information, the time of day, absence of other persons in the vicinity of the sighting, suspicious conduct, and any other activity consistent with guilt.”

Consistent with these factors, minutes after learning from dispatch that a robbery occurred at Domino’s Pizza, the road deputy relatively close to the pizza restaurant observed a car speed past him on a rural

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highway, traveling in the opposite direction of the scene of the crime. By following the car with his bright lights on, the deputy observed that the car’s occupants matched the BOLO description that he had just received of the assailants. The occupants acted suspiciously in that they kept looking back at the deputy’s car, and the driver repeatedly changed lanes. Based on this evidence, the officer possessed reasonable suspicion to stop the car and determine whether the men inside had been involved in the robbery. The court did not err in denying the motion to suppress.

In his second point, Young contends that the court erred in admitting the results of a detective’s test firing of the BB gun found in Young’s vehicle to prove its operability. Because the state did not charge Young with firing a weapon, he claims that the admission of such tests was irrelevant and prejudicial. Young’s argument is flawed because the detective’s experiment was not meant to recreate Young’s firing of the weapon during the crime but to establish whether the weapon was operational, and by extension, deadly.

The state charged Young with robbery with a deadly weapon, aggravated battery with a deadly weapon, and burglary of a conveyance while armed with explosives or a dangerous weapon, to wit: a BB gun. At the outset of trial, Young admitted to committing robbery and battery but expressly disputed that the BB gun constituted a deadly weapon. Whether a BB gun is a deadly weapon is a question for the jury to decide. See Dale v. State, 703 So. 2d 1045, 1047 (Fla. 1997). In order to prove the charged crime, the state needed to prove that Young carried a firearm or other deadly weapon. Proof that the BB gun was operational was relevant to proving that it was a deadly weapon. The assailants used the gun as a club to strike the victim and pointed it at his head. The test firings constituted evidence relevant for the jury’s consideration of the deadliness of the weapon.

Finally, Young challenges his sentence, arguing that the court considered improper factors in its determination. Specifically, he claims that the court relied on the statement of a deceased co-defendant which was not presented at trial in determining the level of Young’s involvement in the crime. He did not object at the sentencing hearing to the trial court’s references to the co-defendant. He then filed a motion to correct a sentencing error pursuant to Rule 3.800(b)(2). The trial court considered the motion and denied it in a written order. The court determined that, while the court was aware of the co-defendant’s statement, the record did not reflect that the court gave any consideration to the statement. The court explained how Young had

Page 4

essentially taken the court’s words at the sentencing hearing out of their intended context. On appeal, Young continues to contend that the court considered improper factors and violated his right to confront witnesses against him in relying on the statement of one of the other participants in the robbery.

A motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) is not the proper vehicle to raise an issue involving the use of improper factors during sentencing. See Hannum v. State, 13 So. 3d. 132, 135 (Fla. 2d DCA 2009) (“Initially, we must point out that rule 3.800(b)(2) is not the proper mechanism for preserving for appeal the issue of whether the court improperly considered certain factors in imposing sentence.”); see also Jackson v. State, 983 So. 2d 562, 572 (Fla. 2008) (explaining that rule 3.800(b)(2) is intended to permit defendants to bring to the trial court’s attention errors in sentence-related orders, not any error in the sentencing process).

Nevertheless, the trial court did consider and rule on the motion and determined that it had not relied on improper sentencing factors. Despite this, we would still be required to conclude that fundamental error occurred in order to reverse. Jackson, 983 So. 2d at 568-69.

Even if the trial court had relied on the hearsay statements of the deceased co-defendant, a summary of which appears in the trial record, the court would not have fundamentally erred or erred at all, for that matter. The Sixth Amendment right of confrontation does not apply in sentencing proceedings. See Cameron v. State, 943 So. 2d 938, 939 (Fla. 4th DCA 2006). As Justice Cantero noted in concurring in Rodgers v. State, 948 So. 2d 655, 674 (Fla. 2006), “Virtually every federal appellate court has recently addressed the issue and has reaffirmed the longstanding principle that the Confrontation Clause does not apply to sentencing.” (Citations omitted) (emphasis in original). Therefore, and particularly in light of the lack of objection, the court could have considered the statement of the co-defendant, and any such consideration would not constitute reliance on improper factors in sentencing Young. We also reject Young’s contention that the court relied on other improper factors.

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

FARMER and LEVINE, JJ., concur.

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D.B., A Child, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3649.

District Court of Appeal of Florida, Fourth District.

May 12, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Charles Kaplan, Judge, L.T. Case No. 07-8908DL00A.

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

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

MAY, J.

A juvenile appeals the denial of his motion to suppress after entering a no contest plea to charges of burglary of a dwelling, grand theft, and criminal mischief greater than $1,000. He argues the trial court erred in denying the motion to suppress because he was not given Miranda¹ warnings. We agree and reverse.

The juvenile was originally thought to be a witness to a burglary. A detective interviewed him at his home with his mother present. During that interview, the juvenile provided a name and positive photo identification of a suspect.

That suspect then inculpated the juvenile in the crimes. The juvenile’s mother drove him to the district office for a second interview. The detective brought the juvenile into the five-by-five foot investigation room where he remained alone, but under camera surveillance, while the detective spoke to his mother for sixteen minutes.

The detective testified that he did not provide the juvenile with his Miranda rights at the beginning of the interview because he was listed as a witness. He just “wanted to confirm or deny the allegations made by the co-defendant.”

The court watched a DVD of the interview. It showed the detective telling the juvenile that he had obtained information not previously

Page 2

revealed by the juvenile in the first interview. The detective explained that he already knew what the juvenile did and that he needed to tell the truth.

[W]hen I spoke to you yesterday, you know, I kind of gave you the benefit of the doubt. Okay? I — You know, based on everything . . . I wanted to believe you, what you said, and stuff like that. All right? Obviously, things came to light. I found out what you did, what your participation was. Okay? And I’m going to give you an opportunity to tell the truth.

But I want — I want you to do is tell me the truth. Okay? And this is a lesson that you’re going to learn today. By telling the truth, it helps the situation out. When you lie, you can’t take back a lie. And the more you lie, the more in trouble you get. Okay? And that’s something that you’re going to learn today. Okay? So, my advice to you is tell me the truth. I know what you did. Okay? I already learned.

. . . .

I spoke to [the co-defendant] in here by . . . ourselves, just me and him. And he told me what happened. Okay? And obviously I learned some things, things that you didn’t tell me. Okay? And that’s what I want you to do is tell me now. Because ultimately what happens is — How old are you, 10 years old?

. . . .

Take the punishment. It’s going to be over — Okay? But you’ve got to tell me the truth because right now your mom is ultimately responsible for everything that you do.

. . . .

Okay. But that’s the way it is. Okay? And if it gets to the point where you’re out of control and you’re incapable of listening to your mother’s directions and . . . you don’t abide by the rules — okay? — you get taken away from your mom, you get — you put into a foster home. How would you feel about that?

Following that exchange, the juvenile made incriminating statements. Page 3>

The trial court denied the motion to suppress because the juvenile “never testified that he believed he was in custody nor did he ever attempt to leave [the] interview room . . . .” The juvenile pled no contest to the charges, reserving his right to appeal the ruling on the motion to suppress.

On appeal, the juvenile argues the court erred in denying his motion to suppress because he was not given Miranda warnings. The State responds that Miranda warnings were not warranted because the juvenile was not in custody at the time of the interview.

“The question of whether a suspect is in custody is a mixed question of law and fact.” Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999). The “in custody” requirement under Miranda is subjected to de novo review, accepting the court’s factual findings if supported by competent, substantial evidence. See C.A.M. v. State, 819 So. 2d 802, 804 (Fla. 4th DCA 2001) (quoting State v. Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001)).

Miranda warnings are required when an individual is interrogated while in custody. Meredith v. State, 964 So. 2d 247, 250 (Fla. 4th DCA 2007). “The ultimate inquiry is whether `a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.’” Id. (quoting Ramirez, 739 So. 2d at 573).

Four factors guide the determination of whether a suspect is in custody.

(1) the manner in which the police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Ramirez, 739 So. 2d at 574. Applying the four-part test to our facts, we find the juvenile was “in custody.”

First, the detective asked the juvenile’s mother to bring him to the district office. The mother drove the juvenile to the second interview, which took place in a small room, under camera surveillance, without the presence of the juvenile’s mother.

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Second, the purpose, place, and manner of the interrogation support a finding that the juvenile was “in custody.” The purpose of the interview was to obtain incriminating responses. The interview took place at the district office. Prior to the interview, the juvenile was placed in a five-byfive foot interrogation room and left alone with the door closed, under camera surveillance, while the detective spoke with his mother for sixteen minutes. When the detective entered the room, he advised the juvenile that his mother wanted him to tell the truth.

The detective repeatedly told the juvenile that he knew what he had done because he had been told by the co-defendant. The detective told him that he had failed to reveal information during the first interview and he could tell the juvenile was lying. The detective even indicated that he knew the juvenile was probably scared. And, the detective essentially threatened the juvenile with placement in a foster home if he was considered out of control. The manner of this interrogation was accusatory, insistent, and coercive.

Third, the juvenile was repeatedly confronted with evidence of guilt. The detective told the juvenile that he already learned about his participation in the crime from the co-defendant. While the detective did not reveal details, he basically told the juvenile that he had not been truthful during the first interview, accused him of lying, knew he had been involved, and demanded the truth.

Fourth, the detective never informed the juvenile that he was free to leave. In fact, the circumstances militated against any thought that the juvenile was free to leave. The juvenile was placed into a small interrogation room alone under camera surveillance while the detective spoke to his mother. He was never advised of his ability to leave or his ability not to answer questions. After the interview, the detective left the juvenile in the room for a considerable amount of time. And, the DVD showed the juvenile repeating to himself, “Get me out of here; get me out of here.”

Under the totality of the circumstances, a reasonable eleven-year-old child would not believe he was free to leave. See Lee v. State, 988 So. 2d 52, 56 (Fla. 1st DCA 2008). The juvenile was “in custody” for Miranda purposes. See B.M.B. v. State, 927 So. 2d 219, 222 (Fla. 2d DCA 2006). The trial court’s reliance on the juvenile’s failure to request to leave placed undue emphasis on only one factor, and failed to take into account the totality of the circumstances.

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Because we find the juvenile to have been “in custody,” Miranda warnings were required. The failure to provide them requires suppression of the juvenile’s statements. We reverse the order denying the motion to suppress and remand the case to the trial court to vacate the disposition order and plea.

Reversed and remanded.

FARMER and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

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RICARDO RIVERA, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-5264.

District Court of Appeal of Florida, Second District.

Opinion filed May 12, 2010.

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

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

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Ricardo Rivera challenges his convictions and sentences for attempted trafficking in heroin and conspiracy to traffic in twenty-eight grams or more of heroin. We affirm his convictions without discussion. We affirm his sentences and the orders

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on costs but remand for corrections in the written sentences to conform to the trial court’s oral pronouncements.

The trial court orally sentenced Rivera on September 22, 2008, to ten years in prison for attempted trafficking in heroin (count 2) and to a minimum-mandatory term of twenty-five years for conspiracy to traffic in heroin (count 3). The trial court took Rivera’s plea and orally sentenced him on count 1 (not at issue here) on December 2, 2008. At that hearing, the trial court recognized that count 1 was based on a no contest plea and that Rivera had previously been sentenced on counts 2 and 3. All sentences were imposed concurrently. The written judgment and sentences on all three counts were not entered until December 2, 2008, and were not filed until December 12, 2008. Rivera filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Because the trial court did not timely rule on the motion, it is deemed denied. See Fla. R. Crim. P. 3.800(b)(1)(b), (b)(2)(b).

The motion to correct sentencing error raised the following issues:

(1) The judgment, sentence and costs order for counts 2 and 3 should have been filed nunc pro tunc to Rivera’s sentencing on September 22, 2008 (though not duplicate costs for this single case upon his subsequent sentence on count 3);

(2) The judgment incorrectly reflects that Rivera entered a plea on counts 2 and 3, when he was convicted by jury after trial;

(3) The sentences on counts 2 and 3 incorrectly show the trial judge deferred sentencing from July 24, 2008 (the jury verdict date) to December 2, 2008, when Rivera was sentenced on counts 2 and 3 on September 22, 2008; and

(4) The record lacks adequate documentation to support the imposed $4,000 in prosecution costs to the Statewide

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Prosecutor and $4,008 investigative costs to the Lee County Sheriff’s Office[.]

The rule 3.800(b)(2) motion preserved the issue of the written sentences conflicting with the trial court’s oral pronouncement. See Barnes v. State, 977 So. 2d 801, 802 (Fla. 2d DCA 2008). The written sentences must conform to the oral pronouncement. See id. As to the first three issues, we direct the trial court to correct the sentencing documents to reflect that (1) Rivera’s sentences on counts 2 and 3 are nunc pro tunc to his sentencing on September 22, 2008; (2) he was convicted by a jury after a trial on counts 2 and 3; and (3) that he was sentenced on counts 2 and 3 on September 22, 2008.

With respect to the fourth issue concerning prosecution and investigative costs, under the facts of this case the rule 3.800(b)(2) motion did not preserve that issue for review. At the sentencing hearing on September 22, 2008, the prosecutor said that the State was requesting $4008.50 for investigative costs and $4000 for prosecution costs. The prosecutor further stated, “I don’t believe the Defense has an objection to those.” Rivera did not make any argument in opposition, and the trial court orally imposed those costs without objection. Not until he filed his rule 3.800(b)(2) motion did Rivera argue that without proper documentation of costs, the prosecution and investigative costs over $100 could not be imposed and should be stricken.

Based upon Mapp v. State, 18 So. 3d 33 (Fla. 2d DCA 2009), we conclude that the alleged error is one in the sentencing process that required a contemporaneous objection and not one in the sentencing order. An error in the sentencing process cannot be preserved via a rule 3.800(b) motion. Id. at 37. Thus, in accordance with Mapp, we determine that the costs issue has not been preserved.

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Mapp is analogous because there the defendant failed to make a contemporaneous objection regarding the sufficiency of the evidence at a restitution hearing. Id. at 36. Here, Rivera failed to object to a lack of documentation for prosecution costs and investigative costs when the trial court announced those costs. Further, the prosecutor asserted that the defense had no objection to those costs, and defense counsel did not argue against the request for costs. This court in Mapp recognized that “rule 3.800(b) was not intended to circumvent rules requiring contemporaneous objections.” Id. at 37 (quoting Jackson v. State, 983 So. 2d 562, 573 (Fla. 2008)). The court affirmed the restitution order, determining that counsel waived the issue of insufficient evidence of restitution by failing to object at the hearing when the trial court imposed the amount of restitution. Id.

Cases citing Mapp have determined that errors regarding the sufficiency of evidence to support restitution amounts did not constitute fundamental error. See Warren v. State, 23 So. 3d 218, 219 (Fla. 1st DCA 2009); Pilon v. State, 20 So. 3d 992, 993 (Fla. 4th DCA 2009). In addition, the Florida Supreme Court has previously stated, “We conclude that an unpreserved error in the assessment of costs cannot be considered a serious, patent sentencing error that should be corrected on appeal as fundamental in the absence of proper preservation in the trial court.” Maddox v. State, 760 So. 2d 89, 109 (Fla. 2000).

Because Rivera did not raise a contemporaneous objection at the sentencing hearing regarding lack of documentation, the costs issue is not preserved for review. Further, under these circumstances, the lack of documentation as to the costs does not constitute fundamental error. Therefore, we affirm the orders on costs.

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Affirmed but remanded for correction of the written sentences.

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

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

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Ricardo Alfonso, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-1102.

District Court of Appeal of Florida, Third District.

Opinion filed May 12, 2010.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Lower Tribunal No. 98-16525, Barbara Areces, Judge.

Ricardo Alfonso, in proper person.

Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

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

PER CURIAM.

Ricardo Alfonso (“the defendant”) appeals the written denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We reverse.

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The defendant moved for post-conviction relief based on the trial court’s failure to warn him of the deportation consequences of his plea. See Fla. R. Crim. P. 3.172(c)(8). The trial court denied the defendant’s motion without prejudice as legally insufficient, but stated that the defendant had the right to appeal the ruling within thirty days.

Because the defendant failed to allege that he was subject to deportation based only on the conviction here, the trial court correctly determined that the defendant’s motion was legally insufficient. See Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002). In accordance with Spera v. State, 971 So. 2d 754 (Fla. 2007), the trial court should have given the defendant an opportunity to amend his motion. This may have been the trial court’s intent when it denied the motion without prejudice. However, because of the contradictory language referring to the defendant’s right to appeal, the order is ambiguous and confusing. Therefore, the defendant may not have understood that he had a right to amend his motion.

Accordingly, we reverse and remand for the defendant to be given an opportunity to amend his motion. If the defendant amends his motion, the amended motion shall relate back to his original motion to satisfy the time requirements of State v. Green, 944 So. 2d 208 (Fla. 2006).

Reversed and remanded with directions.

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COPE, J. (concurring).

As stated in the majority opinion, we have decisions which say that a defendant must allege that he is subject to deportation based only on the conviction he or she is challenging. Sabnani v. State, 5 So. 3d 808, 809 (Fla. 3d DCA 2009); Dumenigo v. State, 988 So. 2d. 1201, 1202 (Fla. 3d DCA 2008). It should also be pointed out, however, that we clarified this rule in Macias v. State, 35 Fla. L. Weekly D549 (Fla. 3d DCA March 10, 2010).

By way of background, in Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002), this court held that a defendant cannot obtain relief from a plea on account of a lack of deportation warnings unless the defendant shows that he was prejudiced by the absence of those warnings. In Prieto, the defendant had been sentenced in 1994 pursuant to a plea agreement in a homicide case. There had been no warning of the immigration consequences. The defendant also had a 1989 felony conviction for grand theft. The Immigration and Naturalization Service commenced deportation proceedings based on both prior cases. The 1989 conviction was apparently a conviction after trial, not pursuant to a plea, but in any event, the defendant did not challenge the 1989 conviction. This court held that on

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those facts, the defendant could not show prejudice based on the 1994 plea. That was so because even if the 1994 plea were set aside, the defendant would remain subject to deportation pursuant to the 1989 conviction.

Subsequent to that case, this court said (as already stated) that a defendant must show that the plea he is seeking to set aside “is the only matter that subjects him to deportation (so as to establish the requisite prejudice).” Sabnani, , 5 So. 3d at 808.^*

We clarified this rule in the Macias case. There the defendant had two prior convictions, both resulting from plea agreements, one entered in 1991 and the other entered in 1994. The defendant moved to vacate both pleas, alleging that there had been no immigration warning in either of the prior cases. The postconviction motion filed in the 1991 case was denied because of the existence of the 1994 case. The postconviction motion in the 1994 case was denied because of the existence of the 1991 case. This court reversed for further proceedings. Macias, 35 Fla. L. Weekly at D549. As a matter of pleading, prejudice was sufficiently shown because there were two prior pleas, both of which were being attacked for lack of deportation warnings.

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The postconviction record before us is scanty, so the details of the defendant’s conviction record are not clear. The State acknowledges that the defendant must be given an opportunity to re-plead.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

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MICHAEL NELFRARD, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4418.

District Court of Appeal of Florida, Fourth District.

May 12, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, John J. Murphy, III, Judge, L.T. Case No. 07-23015 CF10A.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

After entering a plea and being sentenced for possession of cocaine, appellant filed a timely motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(l). He claimed that his counsel coerced him into entering a plea and misinformed him as to the maximum penalty he could face. The trial court summarily denied the motion, attaching a copy of the transcript of the plea colloquy. On appeal, appellant claims that the trial court erred in failing to appoint an attorney to represent him where he alleged a conflict with his current attorney in his motion. We affirm, concluding that where the record conclusively refuted the allegations of the motion to withdraw a plea pursuant to Rule 3.170(l), the trial court did not err by summarily denying it without appointing additional counsel to represent the appellant.

While defendant was on probation for grand theft, he was arrested for possession of cocaine, which resulted in the filing of an affidavit of violation. At the hearing on the violation, the state made a plea offer which the defendant accepted. His counsel meticulously questioned him on the particulars of the plea and explained to him that he could be sentenced up to ten years in prison for the combined crimes. The court also thoroughly explained the plea to the defendant. Defendant eventually pled to both the violation of probation and to the possession of cocaine, for which the court sentenced him to concurrent sentences of 364 days in custody.

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Defendant filed a pro se motion to vacate his plea to the possession of cocaine charge, claiming that counsel coerced him into accepting the plea by telling him that he would be sentenced to five years consecutive to his sentence for the violation of probation. The trial court summarily denied the motion without a hearing. In its order it explained that “[o]nce sentence has been imposed, to withdraw a plea a defendant must demonstrate a manifest injustice requiring correction.” It then concluded that he was required to show that his plea was involuntary and “failed to make such a showing of manifest necessity,” attaching a copy of the plea colloquy transcript to the order. Defendant appeals.

Where a defendant seeks to withdraw a plea after sentencing, the defendant must prove that a manifest injustice has occurred. Snodgrass v. State, 837 So. 2d 507, 508 (Fla. 4th DCA 2003); State v. Wiita, 744 So. 2d 1232, 1235 (Fla. 4th DCA 1999). This is a more stringent standard than a motion to withdraw a plea filed before sentencing, as the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice. Snodgrass, 837 So. 2d at 508. Examples of situations where withdrawal is necessary to correct a manifest injustice include cases where the defendant proves that he received ineffective assistance of counsel or where the defendant’s plea was involuntary. See Williams v. State, 316 So. 2d 267, 274 (Fla. 1975). Similarly, a defendant’s entry of a plea based upon defense counsel’s misadvice about sentencing can be a basis for allowing a defendant to withdraw the plea. Snodgrass, 837 So. 2d at 508.

The defendant argues that his motion stated a facially sufficient claim of coercion through misadvice of defense counsel as to the maximum length of his sentence, and he was entitled to a hearing on the issue. When a defendant files a facially sufficient motion to withdraw plea under rule 3.170(l), due process requires a hearing unless the record conclusively shows the defendant is entitled to no relief. Ragoobar v. State, 893 So. 2d 647, 648 (Fla. 4th DCA 2005); Simeton v. State, 734 So. 2d 446, 447 (Fla. 4th DCA 1999). However, the plea colloquy itself may conclusively refute a defendant’s allegations that counsel misrepresented the length of time the defendant would serve. See, e.g., Alfred v. State, 998 So. 2d 1197 (Fla. 4th DCA 2009). Where the court informs a defendant of his sentencing exposure, a defendant may not reasonably rely on a contrary representation by counsel. See, e.g., Scheele v. State, 953 So. 2d 782 (Fla. 4th DCA 2007) (holding that a defendant could not reasonably rely on his lawyer’s alleged advice that he faced a maximum sentence of only ten years where the trial court told the defendant in no uncertain terms that he faced a maximum of twenty-eight years).

Page 3

A review of the entire plea colloquy conclusively refutes defendant’s allegations that his attorney coerced him by telling him that if he failed to accept the plea offer, he would be sentenced to five years in prison for the cocaine charge. During the plea colloquy, the defense attorney and the court both informed the defendant of the maximum sentences to which he could be sentenced, noting that he could face any sentence up to the maximum of consecutive five-year sentences on the two cases. The trial court also specifically informed him that the length of the sentence was not yet decided. Therefore, he could not have reasonably relied on his counsel’s alleged statement that he would receive a five-year prison sentence if he did not accept the state’s plea offer, when the trial court told him that the sentence was undetermined.

Defendant also claims that he was entitled to conflict-free counsel to represent him on the motion to withdraw the plea. In Schriber v. State, 959 So. 2d 1254 (Fla. 4th DCA 2007), we held that the trial court erred in summarily denying the defendant’s pro se motion to withdraw plea after sentencing without appointing conflict-free counsel after he alleged that his prior counsel led him to enter a guilty plea involuntarily. Although in Schriber we directed the trial court to appoint conflict-free counsel to assist Schriber in drafting his motion and instructed the trial court to thereafter determine whether to summarily deny the motion or to hold an evidentiary hearing, the supreme court has announced a new rule regarding appointment of counsel to represent defendants filing pro se motions to vacate pleas. In Sheppard v. State, 17 So. 3d 275 (Fla. 2009), the court held:

[W]e outline the procedure trial courts should follow when a represented defendant files a pro se rule 3.170(l) motion based on allegations giving rise to an adversarial relationship such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea. In these narrow circumstances, . . . the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Id. at 286-87 (emphasis supplied) (footnote omitted). Thus, the trial court is not required to appoint conflict-free counsel unless both an adversary relationship exists and the defendant’s allegations are not

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conclusively refuted by the record. While the trial court did not have the benefit of Sheppard and did not hold a hearing to determine adversity between defendant and counsel, the failure to conduct a hearing is at most harmless error, because conflict-free counsel would not be required where defendant’s allegations were conclusively refuted by the record.

For the foregoing reasons, we affirm appellant’s conviction and sentence.

DAMOORGIAN and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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KARIM BORDES, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-300.

District Court of Appeal of Florida, Fourth District.

May 12, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Paul L. Backman, Judge, L.T. Case No. 07-8588 CF10A.

Carey Haughwout, Public Defender, and Margaret Good-Earnest, 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.

WARNER, J.

Appellant, Karim Bordes, challenges his conviction for burglary of a dwelling, arguing that the trial court erred in failing to give an instruction on the lesser-included crime of trespass. Because all of the elements of trespass were present, and there was evidence to support the charge, the instruction should have been given when requested by the defendant. We reverse.

The police apprehended Bordes in the home of Tori Webber after a neighbor reported a suspicious vehicle in the area. Bordes ran when he first saw police, and dropped gloves as he tried to exit the house. When the officers asked Bordes what he was doing in the house, he told them that a friend who owed him money asked him to come to the house so that he could pay him back. At trial the friend testified that he owed money to Bordes and had called him to tell him to come by and pick it up, but the friend did not tell him to come to the home where the police detained Bordes. The owner of the home, Tori Webber, testified that she did not know Bordes or his friend and did not give either permission to be in her home.

At trial, Bordes requested that the court give the lesser-included instruction of trespass. The court declined, determining that the information did not contain all of the elements of trespass. The jury found Bordes guilty of burglary, and the court convicted and sentenced him to eighteen years in prison as a habitual offender. He appeals.

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A trial court must give a jury instruction on a permissive lesserincluded offense if: (1) the indictment or information alleges all the statutory elements of the permissive lesser-included offense, and (2) there is some evidence adduced at trial establishing all of those elements. Khianthalat v. State, 974 So. 2d 359, 361 (Fla. 2008). Because this issue involves strictly legal determinations, our standard of review is de novo. See Williams v. State, 957 So. 2d 595, 598 (Fla. 2007).

Bordes was charged with burglary of a dwelling. The information alleged that Bordes did “unlawfully, enter or remain in a structure, to wit: a dwelling . . . property of Tori Webber, with intent to commit therein the offense of Theft . . . contrary to F.S. 810.02(1) and F.S. 810.02(3).” Trespass is a category II permissive lesser-included of burglary. Where the information alleges all of the statutory elements of the lesser offense, and the evidence at trial establishes each of the elements, it is error not to give the trespass instruction. See Henig v. State, 820 So. 2d 1037, 1039 (Fla. 4th DCA 2002); Piccioni v. State, 833 So. 2d 247, 248-49 (Fla. 4th DCA 2002). In both Henig and Piccioni we held that an information worded identically to the one in this case (save for the victim’s name) included all of the statutory elements of trespass.

The evidence presented at trial covered each element of the crime of trespass. Bordes willfully entered Webber’s home without her permission. Thus, both predicate requirements to give the instruction were established, and the jury should have been instructed on trespass.

The state contends that this case is distinguishable from the foregoing cases, because Bordes claimed that his friend gave him “permission” to enter the home, not Webber. This makes no difference to the applicability of the charge. The owner, Webber, did not give permission. The jury must deliberate whether Bordes had the intention to commit a theft within the home, or whether, as he contends, he was simply waiting for his friend in the wrong house, which would be a trespass.

Because this case will have to be retried, we also briefly address Bordes’ claim that the court erred in permitting the state to elicit testimony from the victim regarding calls that Bordes’ mother made to her, which intimidated her. We agree that it was error to admit the testimony where the state did not use the evidence to explain an inconsistency in the witness’s testimony or use it as impeachment. See Koon v. State, 513 So. 2d 1253 (Fla. 1987); Lopez v. State, 716 So. 2d 301 (Fla. 3d DCA 1998).

Reversed and remanded for further proceedings.

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DAMOORGIAN and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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