Florida Criminal Law Opinions

James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

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

BY ORDER OF THE COURT:

The State’s motion for rehearing is granted in part. The prior opinion dated May 5, 2010, is withdrawn, and the attached opinion is issued in its place.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge.

VILLANTI, Judge.

Mickey M. Canavan appeals his conviction for aggravated stalking, claiming that the court should have granted his motion for judgment of acquittal because

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the State failed to prove that he knew of the entry of the final injunction when he continued to harass the victim. We agree, reverse his conviction for aggravated stalking, and remand for entry of a judgment of conviction for simple stalking.

The State charged Canavan with aggravated stalking in violation of section 784.048(4), Florida Statutes (2007), based on allegations that he harassed his former wife after entry of a final injunction against domestic violence. To convict Canavan of this offense, the State had to prove beyond a reasonable doubt that Canavan continued to harass the victim despite knowledge of the injunction upon which the charge was premised. See State v. Johnson, 676 So. 2d 408, 411 (Fla. 1996) (stating that “[t]he statutory elements of aggravated stalking under section 784.048(4) are knowledge of an injunction and knowingly, willfully, maliciously, and repeatedly following or harassing the beneficiary of the injunction”).

Canavan’s former wife obtained a temporary injunction against him in December 2006 because he was following her, she was afraid of him, and she was afraid that he would try to take their son. A permanent injunction was entered a year later at a hearing that Canavan did not attend. It is undisputed that the permanent injunction was not served on Canavan until he was arrested for the stalking charge at issue in this case.

If the defendant is served with the permanent injunction, we agree that proof of service is sufficient to prove that he had knowledge of the injunction. See Robinson v. State, 840 So. 2d 1138, 1139 (Fla. 1st DCA 2003) (suggesting that one method of establishing defendant’s knowledge of the existence of a permanent injunction is proof of service of the permanent injunction). The statute, however, does

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not expressly make service of the injunction an element of the offense. Given that defendants in these cases sometimes go to great lengths to avoid service of process, it is reasonable to permit the State to prove that the defendant has actual knowledge of the permanent injunction as a result of actions other than service of process. See, e.g., Livingston v. State, 847 So. 2d 1131, 1134 (Fla. 4th DCA 2003) (concluding that the State produced sufficient evidence to deny motion for judgment of acquittal on aggravated stalking charge where the temporary injunction served on the defendant notified him of the date of the final hearing and made him aware that he would be bound by any injunction issued at the final hearing); Robinson, 840 So. 2d at 1139 (reversing conviction for violation of domestic violence injunction because the State failed to establish, through proof of service of the permanent injunction or through proof that the defendant had some other notice, that the defendant knew the permanent injunction had been entered against him).¹

Here, the State presented no proof of service of the final injunction prior to Canavan’s arrest on the stalking charge. The temporary injunction, a copy of which was provided to Canavan by the former wife’s new husband, did not contain any language advising him that he would be bound by the terms of any injunction issued at the scheduled final hearing. The State simply failed to provide any evidence that Canavan knew of the entry of the permanent injunction. Because the State failed to prove this element of the charge of aggravated stalking, Canavan’s motion for judgment of acquittal should have been granted. We do not need in this case to decide what

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evidence would be sufficient to establish that a defendant knew of the existence of a permanent injunction. Based on the foregoing, we must reverse the conviction for aggravated stalking.

Nevertheless, we remand for entry of a judgment of conviction for simple stalking. Simple stalking is a category one, lesser-included offense of aggravated stalking. See Fla. Std. Jury Instr. (Crim.) 8.7(b). To prove simple stalking, the State must prove that the defendant willfully, maliciously, and repeatedly followed, harassed, or cyberstalked the victim. § 784.048(2); Fla. Std. Jury Instr. (Crim.) 8.6. To prove aggravated stalking, the State must prove the same conduct, plus the existence of an injunction and the defendant’s knowledge that the injunction had been entered against him. See § 784.048(4); Fla. Std. Jury Instr. (Crim.) 8.7(b). By finding Canavan guilty of aggravated stalking, the jury also made a necessary finding on the elements constituting the lesser-included offense of simple stalking. The jury was given both of these instructions. We are reversing Canavan’s aggravated stalking conviction because the State did not, as a matter of law, establish the third element of aggravated stalking that factually Canavan knew the final injunction had been entered against him. However, we do not take issue with the remaining elements of the offense. Section 924.34, Florida Statutes (2007), requires an appellate court to remand for entry of a judgment of conviction for the lesser-included offense of simple stalking where the jury has specifically found the existence of the elements comprising this lesser-included offense. Therefore, we remand for entry of a judgment of conviction for the lesserincluded offense of simple stalking.

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Reversed and remanded for further proceedings consistent with this opinion.

ALTENBERND and WALLACE, JJ., Concur.

——–

Joseph A. Brown, pro se.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Charlotte County; John W. Dommerich, Judge.

BLACK, Judge.

Joseph A. Brown appeals the postconviction court’s order dismissing his motion to enforce plea agreement, treated as a motion under Florida Rule of Criminal Procedure 3.850. The postconviction court found Brown’s motion facially insufficient. We note that Brown’s motion is not properly sworn for purposes of rule 3.850. The postconviction court dismissed the motion without prejudice to the filing of a facially sufficient motion within the time prescribed by the rule. Because the dismissal was

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without prejudice, the order is not a final order and the postconviction court appropriately did not admonish Brown to appeal within thirty days.

We dismiss this appeal for lack of jurisdiction. The postconviction court should enter a revised order permitting Brown to amend his motion within a reasonable period of time not to exceed thirty days, pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007). See Herron v. State, 35 Fla. L.Weekly D1033 (Fla. 2d DCA May 7, 2010); Moreland v. State, 32 So. 3d 782 (Fla. 2d DCA 2010). If Brown does not amend the motion, the postconviction court should enter a final order disposing of Brown’s claims. If Brown does amend his motion, the postconviction court must consider the amendment in its final disposition.

Dismissed.

DAVIS and VILLANTI, JJ., Concur.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

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Bowman, John, Associate Judge.

On November 15, 2006, defendant, Daryl Tindall, was charged with three counts each of (a) Aggravated Kidnapping, (b) Lewd and Lascivious Molestation-Offender under 18, Victim under 12, and (c) Sexual Battery on a Child under 12 by Perpetrator under 18.

On August 8, 2008, the trial court adjudicated defendant guilty of two counts of Aggravated Kidnapping and two counts of Sexual Battery, and sentenced defendant to life in prison. Defendant has timely appealed.

Defendant raises two issues for our consideration. We find no abuse of discretion in the admission of the child hearsay statements and write only to address the issue of the aggravated kidnapping charges.

At trial, defendant moved for judgment of acquittal on the kidnapping charges at the close of the State’s case and the close of defendant’s presentation (the State had no rebuttal evidence) arguing that his actions were incidental to the alleged sexual misconduct. The trial court denied the motions. On May 7, 2008, a jury found defendant guilty of two counts of Aggravated Kidnapping, Lewd and Lascivious Molestation, and Sexual Battery. However, the trial court adjudicated defendant guilty of only two counts of Aggravated Kidnapping and two counts of Sexual Battery, and sentenced defendant to life in prison.

A trial court’s denial of a motion for judgment of acquittal is subject to de novo review. Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003).

There were two child victims in the case, E.K. and J.T.

J.T.’s Testimony

At trial, J.T. testified that, in the summer of 2006, when she was six years old, she visited her friend, Stewart, who is defendant’s nephew, on a Monday at his home. Defendant, who was sixteen years old, lived together with Stewart in the same home. After answering J.T.’s knock on the door, defendant pulled J.T. by her hair inside the home and to his bedroom, which he subsequently locked. Defendant then placed J.T. on his bed and took his and her clothes off.

Thereupon, defendant rubbed J.T. with his penis on the lips of her “cookie,” which is the name she gave to her private part. J.T. further testified that defendant told her not to tell anybody and that she did not tell anyone afterwards because she was scared. On Tuesday, J.T. visited Stewart’s house again, this time with E.K. J.T. testified that E.K. went inside the house, that defendant was with E.K. in the home, and that Stewart went inside the house and came back out.

On Wednesday, J.T. again visited Stewart’s home by herself, and after answering the door, defendant pulled J.T. by the hair, took her to his bedroom, put her on his bed, took off his clothes, and locked the door. Defendant again rubbed his penis on the lips of her “cookie” for ten minutes, and told J.T. not to tell anyone. J.T. never visited Stewart’s home again.

E.K.’s Testimony

E.K. testified that, about one week before her birthday in the summer of 2006, she visited Stewart’s home to play and that, while she was outside, Stewart told her that defendant wanted her to go inside the home. After going inside, defendant gave E.K. a bear hug, picked her up, took her to his bedroom, and locked the door. Defendant took E.K.’s clothes off and unzipped his zipper. E.K. tried to stop him and screamed. Defendant held her hands up and touched E.K. with his penis in her “private spot” where she urinates from. E.K. stated that defendant’s actions lasted five to seven minutes and that, after she put her clothes on, defendant told her not to tell anyone about what had happened.

E.K. further testified that, about two weeks after her birthday on a Tuesday, she went to play with Stewart at his home and defendant again grabbed her, took her to his bedroom, took off her clothes, locked the

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door, and unzipped his pants. While standing up and with one hand holding E.K.’s hands up and the other covering her mouth to prevent her from screaming, defendant again pushed with his penis into her private spot where she urinates from as she was on the edge of his bed with her legs apart. This ensued for about five to seven minutes, and afterwards, defendant again told E.K. not to tell anyone.

Defendant argues that he was entitled to a judgment of acquittal on the aggravated kidnapping charges because the acts which constituted kidnapping were incidental to the underlying alleged sexual misconduct. Section 787.01, Florida Statutes, provides:

(1) (a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

1. Hold for ransom or reward or as a shield or hostage.

2. Commit or facilitate commission of any felony.

3. Inflict bodily harm upon or to terrorize the victim or another person.

4. Interfere with the performance of any governmental or political function.

(b) Confinement of a child under the age of 13 is against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian.

(2) A person who kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) (a) A person who commits the offense of kidnapping upon a child under the age of 13 and who, in the course of committing the offense, commits one or more of the following:

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1. Aggravated child abuse, as defined in s. 827.03;

2. Sexual battery, as defined in chapter 794, against the child;

3. Lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition, in violation of s. 800.04 or s. 847.0135(5);

4. A violation of s. 796.03 or s. 796.04, relating to prostitution, upon the child; or

5. Exploitation of the child or allowing the child to be exploited, in violation of s. 450.151, commits a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Pursuant to s. 775.021(4), nothing contained herein shall be construed to prohibit the imposition of separate judgments and sentences for the life felony described in paragraph (a) and for each separate offense enumerated in subparagraphs (a)1.-5.

§ 787.01, Fla. Stat. (2008) (emphasis added).

This court has held that, under Faison v. State, 426 So. 2d 963 (Fla. 1983), we “must determine whether a defendant’s conduct amounts to a confinement crime separate from other criminal charges.” Essex v. State, 917 So. 2d 953, 956 (Fla. 4th DCA 2005).

In Mobley v. State, 409 So. 2d 1031, 1034 (Fla. 1982), the Florida Supreme Court observed that a literal construction of a kidnapping statute would potentially convert almost any forcible felony into kidnapping. The court adopted the view that the kidnapping statute does not apply to unlawful confinement or movements that are “incidental to other felonies.” Id. at 1034-37.

Later, in Faison, the supreme court announced a multi-part test for determining whether a particular confinement or movement during the commission of another crime constitutes kidnapping.

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In such situations, the confinement or movement:

(a) Must not be slight, inconsequential and merely incidental to the other crime;

(b) Must not be of the kind inherent in the nature of the other crime; and

(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier to [commit] or substantially lessens the risk of detection.

Faison, 426 So. 2d at 965 (citing State v. Buggs, 547 P.2d 720, 731 (Kan. 1976)).

In the case at bar, both victims were grabbed and taken to another room in the residence. The court, in Formor v. State, 676 So. 2d 1013, 1014-15 (Fla. 5th DCA 1996), found the confinement to be incidental to robbery where the defendant moved the victims three to six feet from bedrooms to bathrooms. Kirtsey v. State, 511 So. 2d 744, 745 (Fla. 5th DCA 1987) involved the robbery of two store employees while closing the store. “One of the employees was tied up and moved about the interior of the store.” Id. The other was forced at gun point to open the safe. Id. The court, in reversing the kidnapping conviction, found that “while these acts were not inherent in the offense of robbery,… and arguably may have made the attempted robbery easier to commit,… the acts were slight and merely incidental to the robbery offense….” Id. The court further noted that the entire criminal episode occurred within the interior of the store. See id. The supreme court further clarified Kirtsey in Berry v. State, stating that “it is the confinement of the victims rather than their movement which justifies the kidnapping conviction.” 668 So. 2d 967, 970 (Fla. 1996).

The confinement of the victims by defendant here lasted only so long as the actual battery, upon which the victims got dressed and left. There seems to be a small distinction between moving a victim by physical force and movement by threat of a deadly weapon. In Sanders v. State, 905 So. 2d 271, 272 (Fla. 2d DCA 2005), the victim was held in her apartment for three hours with the Defendant demanding sex. Eventually, the Defendant threatened the victim with a knife before the victim acquiesced to the demand. Id. He later allowed the victim to use the bathroom, closed the door and left. Id. at 273. The court found these facts did not support a “confinement” separate to support a charge of kidnapping. Id. at 274-75. The defendant “obviously could not have

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accomplished the sexual battery without the victim’s presence. In other words, the victim’s confinement was the sort that, though not necessary to the underlying felony, was likely to naturally accompany it.” Id. at 274. The Sanders court placed emphasis on the fact the victim was not confined beyond the actual battery or left unable to move. Id. at 274-75. “[T]he victim’s confinement in the bathroom ceased once Sanders left the apartment, and the victim was not left in a precarious and vulnerable state.” Id. at 275.

In Gray v. State, 939 So. 2d 1095, 1096 (Fla. 1st DCA 2006), Gray entered store wearing a mask, seized the store clerk at the counter by the hair, and pulled her to an office where the keys to the store were located. After obtaining the keys, he then pulled her to the front door and ordered her to lock the doors, leaving the keys in the front door. Id. Thereafter, he forced her behind the counter to open the registers. Id. Finally, he ordered the victim to lie down, remove her clothes, and warned her not to move as his friend, who allegedly was also inside the store, would “blow her head off.” Id.

The clerk heard the keys jingle and the doorbell ring, and after twenty (20) seconds she pressed the silent alarm. Id. The court observed “[w]hile Gray made threats on her life, he did not bind her. Notwithstanding his directions to the clerk requiring her to lock the store and remove her clothes, such acts did not extend beyond the actual commission of the robbery, because when Gray left the store, the door was unlocked with the victim’s clothes inside, thereby enabling her to dress immediately. As such her confinement did not exceed the scope of the robbery.” Id. at 1097.

Similarly, the victims here were taken from the front door of the house to a bedroom. Each was held in the room for only so long as the actual battery occurred and then released.

The supreme court’s decision in Berry seems very illustrative to the very facts of this case. In Berry, the victims were forced from room to room within the apartment, and at the conclusion of the robbery, the victims were tied up and left facing down on the floor. 668 So. 2d at 968. The court found this confinement was neither slight nor inconsequential under the first primary test of Faison. Id. The court went on to construe this prong “to mean that there can be no kidnapping where the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.” Id. at 969. The court went on to illustrate an example which fit the facts of our case. Id.

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For example, if the defendant “had confined the victims by simply holding them at gunpoint, or if the robbers had moved the victims to a different room in the apartment, closed the door, and ordered them not to come out, the kidnapping conviction could not stand.” Id.

In examining the second prong of Faison, the court concluded that binding of the victims was a confinement, not inherent in the crime of robbery, as it was not necessary to tie up the victim in order to commit the robbery. Id.

Here, the victims were held only during the course of the battery, which would inherently occur during the course of any such battery. Neither victim was ever tied up or restrained beyond the time of the actual battery. The second prong of Faison is likewise not met.

“A conviction is fundamentally erroneous when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law.” Griffin v. State, 705 So. 2d 572, 574 (Fla. 4th DCA 1998). As defendant here did not commit the crime of kidnapping, his conviction and sentence constitutes fundamental error for which we reverse and remand for further proceedings.

Reversed and Remanded.

Hazouri, J., concurs.

Farmer, J., dissents with opinion.

Farmer, J., dissenting.

Judge Bowman has fully canvassed the applicable authorities on the kidnapping issue. I read them to point in a different direction.

I call attention to the statutory requirement that the movement and confinement facilitate the commission of the sexual battery or reduce the risk of detention. See § 787.01(1)(a)2, Fla. Stat. (2009); Faison v. State, 426 So.2d 963, 965 (Fla. 1983). Faison described the pertinent events in that case as follows:

“After discovering that the only employee present in a small contractor’s office was the receptionist, Faison entered the office and attacked the young woman. To do so, he dragged her from her desk in front of a large window to the rear of the office where he sexually assaulted her. He then forced her into a nearby restroom and raped her again.

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“About ten minutes later, the receptionist spotted Faison across the street, and her employer attempted to stop him. Faison escaped into a residential area and broke into the home of another young woman. He attacked her and violently dragged her from the kitchen down a hallway into the bedroom. The two continued to fight until the woman was nearly unconscious; Faison then sexually assaulted her.”

426 So.2d at 964.

The supreme court concluded that each of the separate episodes conforms with the conditions necessary to prove the crime of kidnapping. The court explained:

“(a) The movements of both victims were effected by substantial force and violence inflicted by Faison to overcome their resistance and to make them to go where he wanted. It cannot be said, therefore, that the asportations were either slight, inconsequential or merely incidental to the sexual batteries which followed.

“(b) These movements were not inherent or necessarily required in the commission of the sexual batteries, which could have been accomplished on the spot without any asportation whatever.

“(c) Both abductions were from an area where the rape could have been more easily observed through a window in the first victim’s office, and the second one’s kitchen to the ‘relative seclusion’ of the rear and restroom of the office and the bedroom of the home, respectively. Moreover, each asportation removed the victim from access to a door again, in the office and in the kitchen through which she might have escaped. Hence, each made the sexual battery substantially easier to commit and substantially reduced the danger of detection.”

426 So.2d at 966.

In this case the similarities to Faison are striking:

(a) Defendant pulled J.T. by her hair inside the house, dragged her to the bedroom, closed the door and locked it. Similarly, on both occasions he grabbed E.K., carried her into the bedroom, closed the

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bedroom door and locked it. This is brutal conduct on a young child made even more odious by its purpose.

(b) These movements were not inherent or necessarily required in the commission of the sexual batteries, which could have been accomplished without either the movement into the bedroom or the locking of the door. He could have carried out the sexual battery where he seized the children.

(c) Both abductions were from an area where the sexual batteries might have been observed the first at the front door, the second in the entry area of the house to the seclusion of the bedroom. Moreover each movement and confinement significantly lessened the possibility that the child might be able to escape.

426 So.2d at 966.

I cannot find any meaningful distinction between the underlying facts of the kidnappings in Faison and those of the kidnappings in this case. Both were manifestly undertaken by this defendant for the obvious purpose of committing the sexual batteries without detection or facilitating them. I would affirm the kidnapping convictions.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Lawrence Mirman, Judge; L.T. Case No. 472006CF000900A.

Not final until disposition of timely filed motion for rehearing.

Carey Haughwout, Public Defender, and Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for appellant.

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

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ourth District January Term 2010

Warner, J.

Appellant, Jevon Wimberly, appeals his conviction for attempted second degree murder with a firearm, claiming fundamental error in both the prosecutor’s closing argument and the jury instructions. He claims that the prosecutor made an improper appeal to racial prejudice and that the jury instructions contained an error as to the elements of the charged crime. We conclude that the prosecutor’s comments were improper but did not rise to the level of fundamental error, and the jury instructions were also not fundamentally erroneous. We affirm the conviction and sentence.

This case arises out of an incident in which appellant Wimberly was found to have shot the victim, Stuart Williams. The shooter and the victim were both African-Americans. On the afternoon of the shooting Williams was retrieving some personal items from the vehicle of Ms. Thompson, a friend of Williams. Several other women were present. As he was taking items from the car, a man approached the side of the car and stated, “What’s up, where you at?” The man lifted his shirt and pulled out a gun. Williams said, “Oh, that’s him,” and started running. One witness, Ms. Greene, testified that she heard the shooter say, “Yeah, that’s the n er.”¹ Williams testified that he recognized the shooter as an individual he knew by the nickname “Dread.”

The shooter chased Williams, firing at him until the gun was out of bullets. One of the shots hit Williams in the back of his neck. After Williams was shot, he continued to run until he came upon Ms. Thompson and jumped into her car. Williams was covered in blood and asked, “Am I going to die?” Ms. Thompson asked Williams if he knew who shot him, and Williams replied, “Dread.” Shortly thereafter, Williams’s friends called for an ambulance and he was taken to the hospital.

Williams remained in the hospital for five days but ultimately survived the shooting. Initially, Williams did not tell the police who shot him. However, he later met with police officers and identified Wimberly in a photographic line-up as the person who shot him. Williams also identified Wimberly at trial as the shooter and the man he knew by the name “Dread.”

Williams, a convicted felon who was incarcerated at the time of the trial, was the only witness to actually identify Wimberly in open court as the shooter. Another witness at the scene of the incident, Ms. Stephenson, Williams’s girlfriend at the time, had identified Wimberly as the shooter in a photographic line-up a few days after the shooting, but at trial she was unable to identify him as the person who shot Williams. Ms. Stephenson claimed at trial that her memory had lapsed but did admit that the shooter’s name was Dread.

Likewise, at trial Ms. Thompson could not remember the shooter’s face but admitted that she had told people that she did not want to be involved in the case. She did not disagree with her prior statement regarding the shooter’s physical description, when confronted with it by prosecutors. Another witness, Ms. Greene, also maintained that she could not remember what the shooter looked like. Outside of the presence of the jury the prosecutor claimed that Ms. Greene was feigning ignorance. The trial court allowed the jury to hear portions of her taped statement to police.

The defense presented witnesses to dispute Wimberly’s appearance, particularly his haircut, on the date of the incident, thus defending based upon misidentification.

During the closing argument the prosecution made the following comments:

[PROSECUTOR SAPAK:] I’ll proffer to you, Ladies and Gentlemen, this is the type of neighborhood where people

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attack each other. Even in crimes that involve guns, even in crimes that involve people getting shot, it’s a close community where people want to protect each other, they certainly don’t want to talk to police and they certainly don’t want to talk to prosecutors who could be considered an extension of the police, it’s the nature of the game and it’s not an opportunity where the prosecution gets to pick their witnesses, it’s just the way it is.

***

[PROSECUTOR BOUTRUS:] He [Stuart Williams] was reluctant because, as Mr. Sapak said, this is a close community. The police, the State Attorney’s Office, people like to handle them things themselves, deal with them on their own. Like Stewart [sic] said, like Ashley said, or like Tara said, don’t tell the story, that’s what Stewart [sic] said while he’s in the ambulance, don’t tell anybody about it, I don’t want to, you know, be involved with the police, with the whole judicial system.

No objection was made to these comments or to similar comments by the prosecutors. However, the defense did object on the grounds of relevancy when one of the prosecutors said, “Every day you wake up, we wake up, and you hear about people shooting people all over the place.” The prosecutor stated that her comment went “to the fact that people in this community protect each other,” arguing that the jurors needed to understand that the witnesses were reluctant to testify because “this is a way of life” for them. Defense counsel stated that he had no objection to that line of argument; he simply objected to the comment regarding “people shooting people,” and the trial court sustained his objection but denied the motion for mistrial.

Although he was charged with attempted first degree murder with a firearm, the jury found Wimberly guilty of attempted second degree murder with a firearm. The trial court sentenced him to twenty-five years in prison.

On appeal, Wimberly now claims that the prosecution’s argument constitutes fundamental error. He must do so, because no objection was lodged to the prosecutor’s comments during closing arguments about the community and its tendency to protect its members. In fact, defense counsel stated he had no objection to the statements about the community. Wimberly claims, however, that this was an appeal to racial

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prejudice. Although we do not think it was an appeal to racial prejudice, we disapprove of the argument made because it injected “facts” not contained in the evidence. Nevertheless, we do not conclude that it was fundamental error reaching down to the validity of the verdict itself.

While wide latitude is permitted in closing argument, such latitude does not extend to improper argument. Gore v. State, 719 So. 2d 1197, 1200 (Fla. 1998). “Counsel must contemporaneously object to improper comments to preserve a claim for appellate review. Unobjected-to comments are grounds for reversal only if they rise to the level of fundamental error.” Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007). Improper comments rise to the level of fundamental error only where the error “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000).

While we wholeheartedly adhere to the principle that racial prejudice has no place in our system of justice, see Robinson v. State, 520 So. 2d 1, 7 (Fla. 1988); State v. Davis, 872 So. 2d 250, 253-54 (Fla. 2004), we do not view the prosecutor’s comments as an appeal to racial prejudice. Instead, the prosecution improperly, and without any supporting evidence, bolstered its case against Wimberly by remarks regarding the characteristics of the neighborhood to provide a reason why the state’s witnesses were all vague as to the identification of Wimberly at trial.

Wimberly relies on cases reversing convictions based on improper argument or evidence concerning the reputation of the neighborhood. Our supreme court has held that introducing the fact that a defendant was arrested in a high-crime area may be unduly prejudicial under some circumstances, but not always. See Gillion v. State, 573 So. 2d 810, 811-12 (Fla. 1991). We also have determined that such evidence may be prejudicial.

For example, in Wheeler v. State, 690 So. 2d 1369 (Fla. 4th DCA 1997), we reversed the defendant’s convictions for drug-related crimes because of improper testimony regarding the neighborhood’s reputation for the sale of crack cocaine. The Wheeler court found that the police officer’s testimony, which was highlighted in closing argument, prejudiced the defendant by impermissibly implying guilt through association. Id. at 1371. The purpose of the evidence was to convince the jury that because the area of the defendant’s arrest was known for cocaine sales, the defendant must have agreed to sell cocaine. Id. Likewise, in Beneby v. State, 354 So. 2d 98, 99 (Fla. 4th DCA 1978), we reversed a conviction for possession of cocaine where the prosecutor

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described the area in which the defendant was arrested as “an area that is known to be inhabited by drug users” and a police officer testified that the area “has quite a reputation for narcotics.”

Turning to the substance of the prosecution’s closing arguments in this case, these remarks were improper and objectionable. Contrary to the state’s argument, these remarks were not a “fair comment” on the evidence. There was no evidence at trial that the neighborhood where the victim was shot “is the type of neighborhood where people attack each other” or that it was a “close community” where people “want to protect each other [and] they certainly don’t want to talk to police.” In fact the prosecutor himself told the jury that he would “proffer” that the witnesses were from that type of community, thus acknowledging that he had no evidence to support it. The closing arguments were improper, for the reason that these comments were completely unsupported by any evidence at trial. See, e.g., Huff v. State, 437 So. 2d 1087, 1090 (Fla. 1983) (noting that the state attorney is prohibited from commenting on matters unsupported by the evidence produced at trial).

Nonetheless, Wimberly has not met his burden to show fundamental error. The prosecution’s remarks, while improper and unsupported by the evidence at trial, were made within the context of attempting to explain the reluctance of certain witnesses and the inconsistencies in their statements. See, e.g., Dennis v. State, 817 So. 2d 741, 755 (Fla. 2002) (prosecutor’s closing argument which included “testimony” that no threats were made to accuser to get him to implicate defendant, while improper, was not fundamental error, where other evidence in the case suggested that accuser was not threatened). The record is replete with witnesses’ memories being vague and requiring refreshment with prior statements. Further, the victim himself told his girlfriend to “tell no stories” and refused to identify his assailant the day of the incident. Ms. Thompson, another witness, affirmatively testified of her unwillingness to “get involved.” It would have been clear to the jury that many of the witnesses were reluctant to testify. Therefore, unlike cases such as Wheeler, the argument concerning the nature of the neighborhood was not designed to imply that Wimberly was “guilty by association.” They did not denigrate the defense. Nor were the remarks of such an inflammatory nature so as to prejudice the jury against Wimberly. Cf. Stephenson v. State, 31 So. 3d 847 (Fla. 3d DCA 2010) (holding that fundamental error occurred, in the prosecution of a mother for aggravated manslaughter of her child, when the prosecutor commented on the fact that the mother had contemplated having an abortion during the course of her pregnancy with the child). Rather, the prosecution’s

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comments in this case, albeit misguided, were an attempt to explain the problems with the credibility of the state’s own witnesses.

Accordingly, the prosecutors’ comments, while improper, did not rise to the level of fundamental error. The victim himself clearly identified Wimberly as his attacker at trial and prior to trial. One of the eyewitnesses identified him from a photo line-up the day of the incident. She confirmed her photo identification even though she stated at trial that her memory had faded. Another of the eyewitnesses couldn’t remember much at trial, but she agreed that her statements to police the day of the incident describing the appearance of the shooter were fresher than her imperfect testimony at trial. We cannot say that the verdict could not be obtained without the assistance of the error.

Wimberly also complains that the prosecutor brought out the fact a witness heard the shooter say, “Yeah, that’s the n—er.” Wimberly contends that the use of this vile epithet was irrelevant and served only as a device to inflame and prejudice the jury. The defense did not object at trial to its utterance.

“[T]he introduction into evidence of a racial or ethnic slur is not per se reversible error.” Rich v. State, 18 So. 3d 1227, 1230 (Fla. 4th DCA 2009). In Rich, this court held that the defendant’s use of a racial slur, specifically “cracker,” during a drug transaction was irrelevant, because it did not tend to prove or disprove any element or material fact in the case.² The Rich court distinguished cases where the defendant’s use of a racial slur was relevant to show the defendant’s state of mind as an element of the crime charged. Id. at 1229.

Here, Wimberly was charged with attempted first degree murder, which required the state to prove that the shooting was committed with premeditation. Contrary to Wimberly’s argument, the use of the racial slur was relevant to the shooter’s state of mind as an element of the crime charged. See, e.g., Clinton v. State, 970 So. 2d 412, 414 (Fla. 4th DCA 2007) (evidence that defendant, after stabbing victim, screamed “I’m going to kill you n—er” was properly admitted to prove defendant acted with premeditated design).

Finally, we reject, without further discussion, Wimberly’s claim of fundamental error in the jury instruction. The error alleged did not

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involve a material element of the crime and appears to be a typographical error which we conclude could not have been misconstrued by the jury.

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

Taylor and May, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case No. 06-18716 CF10A.

Not final until disposition of timely filed motion for rehearing.

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^1. The prosecutor got the witness to say this term twice, claiming that she did not hear the witness the first time. However, defense counsel did not object to the testimony concerning the shooter’s use of this racial slur.

^2. However, the court determined that the error in admitting the racial slur was harmless. Id. at 1230.
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Carey Haughwout, Public Defender, and Peggy Natale, 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.

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Warner, J.

Appellant, Morgan Edwards, challenges his conviction for DUI manslaughter, claiming that the trial court erred in granting the state’s motion in limine excluding testimony of a toxicologist that the driver of the vehicle Edwards hit was also impaired. Because the testimony of the toxicologist was not relevant to the material issues in the case, the trial court did not err in granting the state’s motion. We affirm.

Rosa Arroyo, her husband, and Victor Perez, their friend, had gone to a nightclub in downtown West Palm Beach one evening. Rosa was driving their vehicle west on Boynton Beach Boulevard, approaching the intersection at Congress Avenue. As she went through the intersection, her vehicle was hit in its midsection by Edwards’s vehicle, resulting in injuries to both Rosa and her husband. Mr. Perez was killed. A witness in the vehicle next to Rosa’s testified that when Rosa entered the intersection the light was green in her direction. A police officer walking just 100 feet from the intersection testified that the light on Congress, the road on which Edwards was travelling, was red. Furthermore, the accident investigator viewed a surveillance tape, from a gas station at the intersection, which showed a green light for Boynton Beach Boulevard at the time of the crash.

Edwards was taken to the hospital for his injuries and to secure a blood test, which showed that his blood alcohol level was well over the legal limit. While there, Edwards told one of the investigating officers that he did not run a red light but the other driver did. That became his theory of defense.

Prior to trial, the state moved to preclude Edwards’s use of an expert to extrapolate that Rosa’s blood alcohol level at the time of the crash was over the legal limit. The expert based his opinion on Rosa’s statements that she had consumed three drinks, which the expert determined contained two to three ounces of alcohol. Using this information, as well as Arroyo’s height and weight, the expert made a calculation of blood alcohol. The court granted the motion in limine on the grounds that the evidence would not be relevant and the testimony was speculative.

At trial, the state’s witnesses all confirmed that Rosa had the green light. An accident reconstruction expert testified that Edwards was driving between 41 and 60 miles per hour when his vehicle hit Rosa’s car. The only evidence contradicting any of the state’s case was a statement that Edwards made that night to the effect that Rosa had run a red light. Not only did the eyewitnesses dispute that claim, but the officer in charge of the accident reconstruction testified that the physical evidence was inconsistent with that explanation. Edwards did not testify at trial but put on an investigator’s evidence regarding the timing of the lights at this intersection two years after the incident in question. After presentation of the evidence, Edwards was convicted as charged, prompting this appeal.

Edwards argues that it was error for the court to preclude him from offering the expert evidence to show that Rosa was intoxicated at the time of the accident. The state argues that the court did not abuse its discretion, because the evidence was not relevant and was speculative. The standard of review of a trial court’s ruling on a motion in limine is abuse of discretion. Dessaure v. State, 891 So. 2d 455, 466 (Fla. 2004). However, the trial court’s discretion is limited by the rules of evidence, and a trial court abuses its discretion if its ruling is based on an “erroneous view of the law or on a clearly erroneous assessment of the evidence.” McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). Every defendant is entitled to present any evidence that tends to support the defendant’s theory of defense. See Vannier v. State, 714 So. 2d 470, 472 (Fla. 4th DCA 1998). “[W]here evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission. § 90.404(2)(a), Fla. Stat. (1985). However, the admissibility of this evidence must be gauged by the same principle of relevancy as any other evidence offered by the defendant.” See Rivera v. State, 561 So. 2d 536, 539 (Fla. 1990). “Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat.

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Edwards was charged with DUI manslaughter which requires the state to prove that a defendant operated a vehicle with a blood alcohol level in excess of the legal limit and by reason of such operation, “cause[d] or contribute[d]” to the death of another. § 316.193(3)(c) 3., Fla. Stat. The state sought to prove that Edwards ran a red light, crashing into Rosa’s vehicle, and Edwards maintained as his theory of defense that he had the green light, or at least there was reasonable doubt on that issue.

The material fact in dispute in this intersectional collision was who had the green light. Paraphrasing from Sires v. State, 824 So. 2d 943, 947 (Fla. 5th DCA 2002), another DUI manslaughter intersectional collision case, the proposition is this: “If [Edwards] had the green light, he did not cause or contribute to the crash and was not guilty of DUI manslaughter. If he ran the red light, he did cause the crash and was guilty of DUI manslaughter.”

That Rosa may have been intoxicated does not tend to prove who had the green light at the intersection. The evidence of who had the green light was supplied by eyewitnesses, the physical evidence from the accident reconstruction, and the surveillance camera at the intersection. Therefore, we conclude that the trial court did not abuse its discretion in granting the motion in limine.

We are unwilling to say that another driver’s intoxication could never be relevant in the prosecution of a defendant for DUI manslaughter. For example, if the only evidence in this case as to who had the green light were Rosa’s testimony and Edwards’s exculpatory statement, the evidence of Rosa’s alcohol consumption may have been relevant, because Rosa’s own perception may have been affected by it. Here, however, because there was ample, independent evidence other than Rosa’s testimony, even if the evidence of Rosa’s alcohol consumption were relevant, we would conclude its exclusion was harmless error.

Edwards was not deprived of his defense. In fact, because the state elicited his exculpatory statement to officers the night of the incident, that the other vehicle ran the red light, the jury heard what might be an otherwise inadmissible statement supporting his defense had he tried to elicit the information from the officer in his case. See Cotton v. State, 763 So. 2d 437, 439 (Fla. 4th DCA 2000) (“When a defendant seeks to introduce his own out-of-court exculpatory statement for the truth of the matter stated, it is inadmissible hearsay.”). No abuse of discretion occurred in granting the state’s motion in limine.

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For these reasons, we affirm the conviction and sentence. Damoorgian and Levine, JJ., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen Miller, Judge; L.T. Case No. 2007CF001948AXX.

Not final until disposition of timely filed motion for rehearing.

James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

Appeal from the Circuit Court for Hillsborough County; Denise A. Pomponio, Judge.

DAVIS, Judge.

Z.C.B. challenges the disposition order adjudicating him delinquent on a charge of possession of cannabis, less than twenty grams. He argues that the trial

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court erred by adjudicating him delinquent after having dismissed the petition, denying his motion to suppress, and imposing $115 court costs. Based on the State’s concession, we reverse on the court cost issue but affirm as to the other grounds raised.

Z.C.B. appeared before the trial court on three separate juvenile delinquency petitions. These three cases and several others were on the docket for trial. During what appears from the record to be a docket call at the beginning of the day, Z.C.B.’s cases were called. The State responded that the victim in one case and the police officer witness in another had not appeared but that it was ready to proceed on the third case, which involved an affray charge. This announcement prompted Z.C.B.’s counsel to move to dismiss for lack of prosecution the case in which the victim had failed to appear. The trial court delayed a ruling on that motion, advising that it would handle all three cases together. The cases were then passed while the trial court moved on with the docket.

Later in the morning, Z.C.B.’s cases were again called and the State advised the court that it was ready to proceed to trial on the affray case. The court set that case for trial later that morning. When the State advised the court that the witnesses in the other two cases had still not arrived, Z.C.B.’s counsel again moved to dismiss those cases with prejudice for lack of prosecution. The trial court granted the motion “with prejudice.” The trial court then dismissed Z.C.B. from the courtroom to await his trial on the remaining affray case.

When the parties returned later that morning for the affray trial, the State advised the court that the police officer witness in its second case against Z.C.B.

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actually had been present the entire time. Upon learning this, the trial court announced: “The officer was here? Okay…. [T]hat motion to dismiss, just strike all of that. I’m going to go ahead and we’ll still be set for trial.” Z.C.B.’s attorney then renewed his motion to suppress, and the suppression hearing in that case, which involved a marijuana charge, was set for later that day.

Following that hearing, the trial court denied the motion to suppress and Z.C.B. entered a no contest plea reserving his right to appeal the denial of the dispositive motion. The trial court accepted Z.C.B.’s plea and placed him on probation, the terms of which included paying $115 in court costs, performing twenty hours of community service, and observing a curfew. There was never a hearing held in which evidence as to Z.C.B.’s guilt or innocence was received.

On appeal, Z.C.B. argues that the trial court erred in adjudicating him delinquent after the court previously had dismissed the petition with prejudice. We disagree, however, because jeopardy never attached.

In R.A.C. v. State, 736 So. 2d 718 (Fla. 2d DCA 1999), which ultimately was decided on a jurisdictional issue, this court defined when jeopardy attaches. In that case, on the day of R.A.C.’s adjudicatory hearing, the witnesses were sworn and the State advised the trial court that R.A.C. had filed a motion to suppress. The court conducted a suppression hearing and orally granted the motion. The State advised that, considering the court’s ruling, it was not ready to proceed to trial at that time. R.A.C. moved to dismiss, and the court orally granted the motion.

No written orders were entered memorializing these decisions, but the following week, the trial court unexplainably entered a written order denying the motion

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to suppress and setting aside the order of dismissal. Three days later, the trial court entered another written order dismissing the petition. The three petitions were then inexplicably brought before the court for an adjudicatory hearing, and the trial court found R.A.C. delinquent.

On appeal, R.A.C. argued that the trial court erred by violating his rights against double jeopardy. This court disagreed, reasoning that although the case was originally set for an adjudicatory hearing, the sworn witnesses and testimony taken only addressed the motion to suppress.¹ ki at 719. This court clearly stated, “Jeopardy does not attach in a nonjury trial until the court begins to hear evidence upon which it can base a determination of guilt or innocence of the charged offense.” ki But see D.L.B. v. Kirk, 551 So. 2d 611, 612 (Fla. 5th DCA 1989) (“[T]he order of dismissal was a consequence of the State’s failure to present evidence at the scheduled adjudicatory hearing, and therefore the order was similar to a judgment of acquittal in a criminal case.”). Here, because Z.C.B.’s suppression hearing was not adjudicatory, jeopardy had not attached when the trial court called on the State to begin that hearing. Accordingly, we affirm Z.C.B.’s adjudication of delinquency.

We also affirm, without comment, the trial court’s denial of the motion to suppress. However, Z.C.B. is correct that it was error for the trial court to impose $115 in court costs. The statute allows for such an amount to be imposed in conjunction with

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a felony charge, see § 775.083(2), Fla. Stat. (2008); however, Z.C.B. was adjudicated delinquent for a misdemeanor offense. We therefore reverse the imposition of the $115 court cost and remand for the trial court to impose the correct amount.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KHOUZAM, JJ., Concur.

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^1. We note that R.A.C. does not address whether the motion to suppress was dispositive. We note that Florida Rule of Juvenile Procedure 8.085(2) does authorize the trial court to grant certain pretrial motions to dismiss. However, nowhere do the rules authorize such a granting to be with prejudice. When jeopardy has not attached, there is nothing in the rules to preclude the trial court from setting aside a socalled “dismissal with prejudice.” See Fla. R. Juv. P. 8.130.
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Jack D. Hoogewind, Dade City, for Appellant.

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

Appeal from the Circuit Court for Hernando County,

Kurt E. Hitzemann, Judge.

JACOBUS, J.

Samuel Woodall appeals the denial of his motion to withdraw plea, filed pursuant to Florida Rule of Criminal Procedure 3.170(/). He argues the motion should have been granted because his plea was involuntary. We agree and reverse.

Woodall’s plea agreement covered two separate cases, 2007-CF-2689 and 2008-CF-0983. It disposed of the charges in a third case, 2008-CT-0064, with a nolle

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prosequi. In the first case (07-2689), Woodall was charged with aggravated assault with a deadly weapon, simple battery, resisting a law enforcement officer without violence, and criminal mischief. In the second case (08-983), he was charged with one count of aggravated assault with a deadly weapon. The third case (08-64) involved a charge for driving under the influence.

Before entering his pleas, Woodall was brought to trial in case number 08-983, which arose from an altercation between Woodall and his mother and stepfather. The State expected the evidence to show that an intoxicated Woodall went to his mother’s home to ask for money and became enraged when she refused. During his tirade, Woodall held a knife to his stepfather’s throat and threatened to cut off his head. His mother called the police. An officer arrived as Woodall was driving away in his truck. The officer stopped Woodall and found a knife under the driver’s seat. Woodall was arrested after the officer interviewed his parents. The stepfather gave a sworn verbal statement that Woodall grabbed him around the neck and held a knife to his throat during the incident, and the mother gave a sworn verbal statement describing the knife. The next day, the stepfather made the same sworn statement in writing. The knife found in Woodall’s truck matched the mother’s description.

The State was surprised by the victim’s testimony at trial. The stepfather said he did not see or feel a knife when Woodall grabbed him around the neck and threatened to cut off his head; rather, he just assumed Woodall had a knife. Woodall’s mother testified that she was in another room when Woodall threatened her husband. She also said she never saw a knife. The State impeached both witnesses with their prior

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inconsistent statements through the arresting officer’s testimony and the stepfather’s written police statement.

The trial court denied defense counsel’s motion for judgment of acquittal, but ultimately granted a mistrial when the jury could not reach a unanimous verdict. The court indicated the retrial would be held the following day and denied defense counsel’s motion for a continuance. At that point, the State and defense began discussing the possibility of a global settlement for all three of Woodall’s pending cases. The negotiations continued for some time. Woodall’s attorney told him, on the record, that he had dodged a bullet, he was lucky he was not convicted, and the State’s plea offer was in his best interest. Woodall remained somewhat ambivalent toward entering a plea. He asked for more time to make a decision. The court gave Woodall until the next morning to enter a plea or go to trial.

The next morning, Woodall entered a plea that covered the two felony cases (07-2689 and 08-983), and the State nolle prossed the misdemeanor case (08-64). Woodall was sentenced in accordance with the plea agreement to a total of seven years’ imprisonment. He later filed a rule 3.170(/) motion to withdraw his plea, claiming it was involuntarily entered. The motion was denied after an evidentiary hearing, and Woodall appealed.

On appeal, Woodall continues to argue his plea was involuntary, raising several of the same grounds he presented in his motion below. We find it is only necessary to address one of these issues to resolve the appeal, and that is Woodall’s claim that his plea was rendered involuntary by defense counsel’s failure to advise him about the favorable legal ramifications of his mother and stepfather’s testimony in case number

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08-983, which ended in a hung jury. He asserts that if he had been advised about the legal effect of their change in testimony, such as the resultant lack of substantive evidence of the charged offense, he would not have entered the plea agreement but would have proceeded again to trial.

In order to withdraw a plea after sentencing, a defendant must show a manifest injustice. See Williams v. State, 316 So. 2d 267 (Fla. 1975). The defendant can show a manifest injustice, for example, by proving his plea was involuntarily entered or that he was denied effective assistance of counsel. kd. at 273-74. A defendant who proves he received no advice from counsel about an available defense has a colorable claim of involuntariness and can demonstrate the requisite manifest injustice. See Panchu v. State, 1 So. 3d 1243 (Fla. 4th DCA 2009); Brazeail v. State, 821 So. 2d 364 (Fla. 1st DCA 2002). We conclude Woodall met this standard in the present case.

Woodall will not be heard to say he does not know what the evidence is in case number 08-983, since he attended the trial and heard the testimony of every witness. Nevertheless, it is undisputed that defense counsel failed to advise him of any of the favorable defense implications of the evidence as presented at trial. In particular, the change in testimony by Woodall’s mother and stepfather at trial made it doubtful that the State could prevail on retrial. The impeachment of Woodall’s mother and stepfather at trial by their prior inconsistent statements was just that impeachment evidence, which cannot be used as substantive evidence to prove he actually possessed a deadly weapon (i.e., the knife). See S.L. v. State, 993 So. 2d 1108 (Fla. 4th DCA 2008); Santiago v. State, 652 So. 2d 485 (Fla. 5th DCA 1995). Moreover, if the mother and

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stepfather testified on retrial consistently with their original police statements, they would be subject to impeachment with their testimony from the first trial.

Defense counsel did not explain any of this to Woodall. As a result, his plea was not voluntarily, knowingly, and intelligently entered, and he should have been permitted to withdraw it even after sentencing. To clarify, we do not hold that the State cannot prevail on a retrial in 08-983 (for example, on a lesser charge), but only that defense counsel should have explained the favorable legal effect and defense implications of the evidence at the mistrial. Woodall was prejudiced because he would not have entered the plea agreement had counsel advised him that a lack-of-substantive-evidence defense was available. See Williams; Panchu; Brazeail.

Woodall indicated at the motion hearing that he understands the consequences of withdrawing his negotiated plea. That is, he knows it will put him in the same position in which he began, and the State can reinstate all of the charges in all three cases. See Forbert v. State, 437 So. 2d 1079 (Fla. 1983); Geiger v. State, 532 So. 2d 1298 (Fla. 2d DCA 1988). Woodall will then be entitled to a jury trial in each of those cases.

In sum, we conclude the trial court abused its discretion in denying Woodall’s rule 3.170(/) motion to withdraw plea. We therefore reverse and remand for the trial court to enter an order allowing Woodall to withdraw the plea and to conduct further proceedings consistent with this opinion.

REVERSED and REMANDED with instructions.

ORFINGER, J., concurs,

LAWSON, J., concurring and concurring specially, with opinion, in which ORFINGER, J., concurs.

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LAWSON, J., concurring specially

I concur in the majority opinion, but write to stress the uniqueness of this case, and to explain why it will have limited precedential value beyond these facts. In most cases a defense lawyer’s failure to explain the legal effect of a particular witness’ testimony or some other piece of evidence will not rise to the level of a manifest injustice requiring a trial court to grant a defendant’s post-sentencing motion to withdraw plea. This case is unique in that Appellant’s counsel made a series of mistakes culminating in Appellant’s unwitting plea to a charge that the State could not prove.

Counsel’s failures began during the trial of case number 08-983, when the State sought to cross-examine the victim (Appellant’s step-father), with his out-of-court statements to police. Counsel should have requested an instruction limiting the use of this evidence to the jury’s assessment of the witness’ credibility. See State v. Smith, 573 So. 2d 306, 316 (Fla. 1990) (“Section 90.107 of the Florida Statutes (1987)¹ provides: ‘When evidence that is admissible as to one party or for one purpose, but

Page 7

inadmissible as to another party or for another purpose, is admitted, the court, upon request, shall restrict such evidence to its proper scope and so inform the jury at the time it is admitted.’”) (emphasis in original); Lightfoot v. State, 591 So. 2d 305, 306 (Fla. 1st DCA 1991). Because counsel failed to request that the evidence be admitted for the limited purpose of impeachment, the statement was placed before the jury as substantive evidence. Id.; see a/so, Mi//er v. State, 780 So. 2d 277, 279 (Fla. 3d DCA 2001); Martin v. State, 736 N.E.2d 1213, 1218 (Ind. 2000); State v. Smith, 24 S.W.3d 274, 276 & 279-82 (Tenn. 2000); but see State v. A//ien, 366 So. 2d 1308, 1310-11 (La. 1978). Counsel made the same mistake with respect to the State’s other primary witness at trial–Appellant’s mother.

The witnesses’ direct testimony was that they saw no knife, and neither saw nor felt any object that could have been a knife during Appellant’s altercation with his stepfather. Therefore, if counsel had sought to limit admission of the prior inconsistent statements to their proper scope, there would have been no substantive evidence from which a jury could have concluded that Appellant used a knife during the assault. See But/er v. State, 602 So. 2d 1303, 1305 (Fla. 1st DCA 1992) (“those cases which have found that the evidence of possession of a… ‘weapon’ was legally sufficient have involved either direct testimony based upon actual observation of the weapon, or a clearly distinguishable portion of it; or substantial circumstantial evidence indicating possession of a weapon.”) (citations omitted). Additionally, had counsel made the proper objections, evidence about the knife found in Appellant’s truck would have also been properly excluded from evidence. E.g., O’Connor v. State, 835 So. 2d 1226, 1231

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(Fla. 4th DCA 2003) (“where the evidence at trial does not link a weapon seized to the crime charged, the weapon is inadmissible”).

Even with the impeachment evidence admitted as substantive evidence, Appellant’s lawyer could still have presented a viable motion for judgment of acquittal as to the aggravated assault charge on grounds that the evidence of Appellant’s use of a weapon during the assault was contained only in prior inconsistent statements. This is because the Florida Supreme Court has held “‘as a matter of law, that in a criminal prosecution a prior inconsistent statement standing alone is insufficient to prove guilt beyond a reasonable doubt.’” Beber v. State, 887 So. 2d 1248, 1252 (Fla. 2004) (quoting State v. Moore, 485 So. 2d 1279, 1281) (Fla. 1986)). This ruling is founded on due process concerns, and applies even where the prior inconsistent statement is admitted as substantive evidence. Id. Although counsel did move for a judgment of acquittal, he did not make this argument-or cite to Beber.

Finally, Appellant’s counsel allowed Appellant to plea to the charge that should have been resolved in Appellant’s favor at trial, without explaining to him that the State did not have the evidence to convict him of the charge if the witnesses testified consistently with their trial testimony in a future proceeding.

It is the totality of these circumstances that compels us to find a manifest injustice requiring that Appellant be allowed to withdraw his plea.

ORFINGER, J., concurs.

——–

^1. Prior inconsistent statements that were made under oath subject to the penalty of perjury at a prior trial, hearing or other proceeding, or in a deposition, are admissible under Florida law as substantive evidence, so long as the declarant testifies at the trial or hearing at which the statement is offered, and is subject to cross-examination. § 90.801(2)(a), Fla. Stat. (2009); Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004); but cf. State v. Green, 667 So. 2d 756 (Fla. 1995) (holding that statements made under oath at a discovery deposition in a criminal case do not qualify for admission as substantive evidence under section 90.801(2)(a)). Evidence of a prior inconsistent statement that is not admissible as substantive evidence under section 90.801(2)(1) is still admissible for impeachment purposes under section 90.614, Florida Statutes, as long as a proper foundation is laid for admission of the evidence. E.g., Jackson v. State, 961 So. 2d 1104 (Fla. 5th DCA 2007). The statements at issue in this case were not made at a prior trial, hearing or other proceeding, and were therefore only admissible for impeachment purposes–and not as substantive evidence. Id.
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Nancy A. Daniels, Public Defender; and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General; and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILEDAn appeal from the Circuit Court for Duval County. David M. Gooding, Judge.

PER CURIAM.

Ronald Jackson appeals a conviction and sentence for armed robbery while actually possessing a firearm. We affirm without comment the trial court’s rulings made during the guilt phase of the trial. We vacate the 25-year prison sentence, however, because the trial court’s remarks immediately before pronouncing the

Page 2

sentence are reasonably construed as affirmatively punishing Jackson for failing to show any remorse or regret for any of his actions, thereby denying due process and fundamentally erring.

At sentencing, the trial court made several remarks, including the following:

Mr. Jackson, you’ve been convicted by a jury of your peers, since you show no remorse or regret for any of your actions I’m going to sentence you to 25 years Florida State Prison….

The evidence in this case, although sufficient to support a conviction, was not overwhelming, relying largely upon a photo lineup identification. Appellant made no admission of complicity in the crime charged. The statement made by the trial court can reasonably be read only as conditioning the sentence, at least in part, upon appellant’s claim of innocence, in violation of established law. See Nawaz v. State, 28 So. 3d 122, 124-25 (Fla. 1st DCA 2010) (finding fundamental error where trial court based sentence partly on an impermissible ground); Whitmore v. State, 27 So. 3d 168, 169-72 (Fla. 4th DCA 2010) (concluding that trial court’s reliance upon defendant’s continued protestation of innocence at sentencing, which the judge viewed as a lack of remorse and denial of responsibility, was an impermissible basis for imposing the maximum sentence, denied due process, and constituted fundamental error); Jiles v. State, 18 So. 3d 1216 (Fla. 5th DCA 2009) (reversing sentence and remanding for resentencing before a different judge because original judge improperly based sentence upon defendant’s denying his

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involvement and failing to accept responsibility); Hannum v. State, 13 So. 3d 132, 134-36 (Fla. 2d DCA 2009) (concluding that trial court’s improper consideration of defendant’s maintaining his innocence at trial and at sentencing denied due process and constituted fundamental error, compelling reversal of sentence and remand for resentencing, even though the original prison sentence fell within the scoresheet range); Bracero v. State, 10 So. 3d 664, 665-66 (Fla. 2d DCA 2009) (concluding the trial court’s consideration of defendant’s continuing protestations of innocence as a factor in determining the length of his sentences violated due process, constituted fundamental error, and compelled reversal of sentences and remand for resentencing); Ritter v. State, 885 So. 2d 413, 414-15 (Fla. 1st DCA 2004) (concluding that appellate counsel rendered ineffective assistance by failing to raise due-process challenge to trial court’s considering defendant’s denial of guilt and assertion of innocence as grounds for imposing a prison sentence in excess of State’s recommendation but within the guidelines scoresheet range); A.S. v. State, 667 So. 2d 994, 995-96 & n.4 (Fla. 3d DCA 1996) (reversing and remanding final order committing subject to a juvenile facility, where the trial court impermissibly based its disposition of the case partly on the juvenile’s continuing to maintain his innocence and showing no remorse throughout the proceeding). Jackson is entitled to resentencing before a different judge. See Whitmore, 27 So. 3d at 172.

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We AFFIRM the conviction, VACATE the sentence, and REMAND with instructions to resentence Jackson before a different judge.

KAHN, ROWE, and MARSTILLER, JJ., CONCUR.

John D. Cooksey, Clermont, pro se.

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

3.850 Appeal from the Circuit Court for Orange County, Roger J. McDonald, Judge.

PER CURIAM.

John David Cooksey appeals the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s order without discussion except as to claim 3 of Cooksey’s postconviction motion. As to claim 3, the State concedes that the record does not conclusively refute Cooksey’s claim and that he is entitled to a hearing on that claim alone. We accept the State’s proper concession.

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We affirm in all respects except as to claim 3 of Cooksey’s postconviction motion. On remand, the trial court shall conduct an evidentiary hearing on that claim alone to determine its merits and relief, if any. See Moss v. State, 860 So. 2d 1007 (Fla. 5th DCA 2003).

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

ORFINGER, EVANDER and JACOBUS, JJ., concur.

James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Citrus County,

Patricia Thomas, Judge.

PER CURIAM.

Alexander W. Myers appeals the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm without further discussion as Myers and the State both agree that the imposed sentence is not illegal. However, on remand, the trial judge shall amend the sentencing documents to reflect that pursuant to the 1989 version of section 775.089(1), Florida Statutes, as it relates to

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his conviction of first-degree murder, Myers shall be eligible for parole after serving no less than twenty-five years of his life sentence. Resentencing is not required.

AFFIRMED and REMANDED.

GRIFFIN, ORFINGER and TORPY, JJ., concur.