Florida Criminal Law Opinions

Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, for Appellant.

Curtis S. Fallgatter, 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. Hon. Michael R. Weatherby, Judge.

HAWKES, C.J.

The State of Florida seeks review of a trial court order suppressing evidence of child pornography found in the Defendant’s residence. The trial court suppressed evidence of the Defendant’s child pornography collection and a related confession in which he admitted to repeatedly committing sexual battery on his six-year-old niece. The trial court found the affidavit supporting the warrant for

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the search of the Defendant’s residence was void of probable cause and the confession was obtained as a result of the illegal search. We conclude: (1) The county judge had a substantial basis for issuing a warrant for the search of the Defendant’s residence; and (2) Even if the warrant was technically flawed, the good faith exception to the exclusionary rule would apply. Consequently, we reverse.

FactsOn Thursday, December 11, 2008 the parents of the victim, a seven-year-old child named M.S., contacted the Jacksonville Sheriffs Office (JSO) reporting that the Defendant took pornographic photos of M.S. During a forensic interview conducted by members of the JSO’s Child Protection Team, M.S. gave the following information:

On November 23, 2008, she was riding in the Defendant’s car with the Defendant and his six-year-old niece. The Defendant had noticed that M.S. spilled water on her pants and convinced her to pull down her pants and underwear. The Defendant then took out a “gray camera” and instructed M.S. to pose in the back seat of his vehicle so that he could take “a good picture of her rear.” He proceeded to take photographs of her buttocks and vaginal area. After taking a picture, he would look at the camera and say “that’s a good picture.” M.S. further explained that as the Defendant was encouraging her to pull down her pants for the

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photographs, M.S.’s friend, the Defendant’s six-year-old niece, tried to reassure her by saying: “It’s ok, he takes pictures of me like that all the time.” Detective Soehlig, a member of the JSO “Sex Crimes Unit,” observed the interview.

The following Monday, four days after she learned of the crime and twenty-two days after the criminal activity occurred, Detective Soehlig applied to the county judge for a warrant to search the Defendant’s residence for evidence of child pornography. She included a synopsis of the above interview in her supporting affidavit. The synopsis did not include the specific date of the car trip. Before she submitted the affidavit to the county judge, she had the affidavit reviewed by an Assistant State Attorney, who approved it. In the affidavit, Detective Soehlig requested authority to search the Defendant’s home and to seize computers, electronic storage devices and photography equipment.

After reviewing the affidavit, the county judge issued a search warrant authorizing the JSO to search the Defendant’s residence. The judge simultaneously issued a warrant to arrest the Defendant for violating section 827.071, Florida Statutes, Sexual Performance by a child.

Detective Soehlig and other members of JSO executed the warrant and arrested the Defendant on December 19, 2008. From the Defendant’s home, the officers seized several electronic storage devices and pieces of photography equipment. During a subsequent interview with Detective Soehlig, the Defendant

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admitted taking photographs of M.S. and also confessed to committing sexual battery on his six-year-old niece over one hundred times in the two years since she turned four. He also admitted to taking digital photographs and video of the encounters, which he stored on his home computers.

Prior to trial, the Defendant filed a motion to suppress all evidence seized in the search of his residence, as well as his confession. In his motion, he claimed the supporting affidavit was fatally flawed in that it failed to provide the exact date of the car ride which provided the information for the affidavit on which the search was based; and, further, that the affidavit lacked any probable cause to believe the illegal photographs would be found in his home.

The trial court granted the Defendant’s motion to suppress, finding as follows:

… considering the warrant itself and confining myself to the four corners of the document, I think that the warrant has failed. The warrant is–does not have any sort of provisions to preclude staleness. There is no indication of–well, there just no–indication of the proximity of the information to the date of the affidavit.

There is nothing to indicate that the information that is contained or that is sought or was presumably taken–there’s nothing to connect that information to the house. There’s nothing in there that indicates, in a manner of probable cause, that there is anything to be found in the house. I agree that there are some deductions that could be made, but I don’t think that can be made based on what’s in the four corners of the affidavit, which I find

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somewhat unpalatable, but there it is. The motion to suppress is granted.

The trial court subsequently declined to apply the good faith exception to the exclusionary rule, stating:

I think good faith is one of those instances where the officers usually believe the contents of the affidavit were acceptable. I don’t think good faith falls within the category of, shall we say, less than adequate advice by counsel, you know, going into great details about that. I just don’t think this is a situation where the good-faith exception applies much.

Standard of ReviewArticle I, Section 12 of the Florida Constitution provides that a search warrant must be based on probable cause, supported by a sworn affidavit, and effectuated in conformity with the Fourth Amendment to the United States Constitution. To establish the requisite probable cause for a search warrant, the affidavit included in the warrant application must set forth two elements: (1) the commission element-that a particular person has committed a crime; and (2) the nexus element-that evidence relevant to the probable criminality is likely located at the place to be searched. See Salyers v. State, 920 So. 2d 747, 749 (Fla. 5th DCA 2006); see also Burnett v. State, 848 So. 2d 1170, 1173 (Fla. 2d DCA 2003).

The task of an issuing magistrate, here the county judge, is to review all circumstances set forth in an affidavit supporting a search warrant and make a “practical, common-sense decision” as to whether there is probable cause to issue

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the warrant. State v. Gonzalez, 884 So. 2d 330, 333 (Fla. 2d DCA 2004). The task of a court charged with reviewing a magistrate’s decision to issue a warrant is to examine the four corners of the supporting affidavit and determine whether the magistrate had a “substantial basis” for making its “practical, common-sense decision” regarding probable cause. Salyers v. State, 920 So. 2d at 749; Garcia v. State, 872 So. 2d 326, 329 (Fla. 2d DCA 2004).

Our task is to review the trial court’s ruling regarding whether the issuing magistrate made a proper probable cause determination prior to issuing a search warrant. Therefore, our review is de novo. See Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002); see also State v. Jenkins, 910 So. 2d 934, 936-37 (Fla. 2d 2005).

The Affidavit Established a Sufficient Nexus to Demonstrate Evidence of Child Pornography Would be Found in the Defendant’s ResidenceThere is no dispute that the affidavit establishes probable cause to satisfy the commission element, the first of the two elements that must be satisfied before a warrant may issue. The second element, the nexus element was contested. The trial court accepted the Defendant’s argument that the supporting affidavit failed to establish a nexus between the evidence sought and the Defendant’s residence. We disagree. It was reasonable for the county judge to determine there was a fair probability that a search of the Defendant’s residence would uncover electronic storage devices containing pornographic photographs of the seven-year-old victim.

When attempting to secure a valid search warrant, an applicant is not

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required to provide direct proof that the objects of the search are located in the place to be searched. See State v. Weil, 877 So. 2d 803, 804 (Fla. 5th DCA), review denied, 889 So. 2d 72 (Fla. 2004). Nor is the affiant obligated to rebut every possible hypothetical a defense attorney may later imagine. Rather, the applicant must supply a sworn affidavit setting forth facts upon which a reasonable magistrate could find probable cause to support such a search. Id. The issuing magistrate will then analyze the information contained in the affidavit, consider the type of crime being investigated, examine the nature of the items sought, and make a “practical, common sense decision” as to whether there is a “fair probability” evidence of a crime will be found at a particular place. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); see also State v. Felix, 942 So. 2d 5 (Fla. 5th DCA 2006).

In the case at bar, the Defendant was suspected of creating and possessing child pornography. Various courts have recognized the reality that the act of possessing child pornography is a “solitary and secretive crime.” See State v. Felix, 942 So. 2d at 10-11. As such, it is widely recognized that collectors of child pornography tend to retain their materials in secure places, including their homes. See id. This principle was succinctly articulated in the federal case of U.S v. Lamb, which stated:

Since [child pornography] materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to quickly destroy them. Because of their

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illegality and the imprimatur of severe social stigma such images carry, collectors will want to secret them in secure places, like a private residence. This proposition is not novel in either state or federal court: pedophiles, preferential child molesters, and child pornography collectors maintain their materials for significant periods of time.

945 F.Supp. 441, 460 (N.D.N.Y.1996) (emphasis added).

Numerous courts have adopted this principle: It is reasonable for an issuing magistrate to infer that child pornography suspects would store the images in a secret, safe place, such as their home. Id.; see also State v. Felix, 942 So. 2d 5.

The Defendant puts forth several possible interpretations of the victim’s statements, all of them far less incriminating than those Detective Soehlig placed on the statements and, obviously, the interpretation the county judge placed on them before issuing the warrant. The possibility that the statements could have less incriminating interpretations does not defeat probable cause. A defendant can almost always present a less incriminating interpretation of the facts set forth in an affidavit. An issuing magistrate’s finding of probable cause will be upheld, so long as the magistrate used “practical, common sense” when reviewing the affidavit and made reasonable inferences from the information therein.

Based on the information in the affidavit, the county judge made a practical common sense inference and determined there was a fair probability that the Defendant had stored pornographic images on an electronic storage device in his

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home. Thus, the trial court erred in determining the county judge lacked a substantial basis for authorizing a search of the Defendant’s residence.

The Search Warrant Was Not Based on Stale InformationThe trial court appears to have added a third element beyond the two (the commission element and the nexus element) set forth in case law. The trial court determined that the information contained in the supporting affidavit did “not preclude staleness,” finding “there is no indication of… the proximity of the information to the date of the affidavit.” Again, we disagree.

The amount of time that elapses between an activity justifying a search and the date a corresponding warrant issues is relevant only in determining whether there is probable cause to believe the items to be seized will still be found at the place to be searched (the nexus element). See State v. Jenkins, 910 So. 2d 934, 937 (Fla. 2d DCA 2005). Thus, “staleness” relates to the nexus element. This is one aspect of the issuing magistrate’s “practical common sense” evaluation. Generally, the longer the time period between the criminal activity and the seeking of the warrant, the more likely it is that a magistrate will refuse to issue a warrant because there is an insufficient showing that the evidence will still be found at the location to be searched. Id.

Staleness is not a separate element that must be disproved by all search warrant applicants; nor is there a magic words requirement where the affidavit

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must specifically list every date that each of the events described in the affidavit occurred. See Cruz v. State, 788 So. 2d 375 (Fla. 4th DCA 2001). In other words, a magistrate is not required to leave common sense at the courthouse door when evaluating whether or not the information satisfies the nexus element and supports a finding of probable cause. Instead, an issuing magistrate should assess the whole of the information provided in the affidavit application and determine, based on the particular facts of a given case, the nature of the criminal activity involved, and the evidence hoped to be found, whether there is probable cause to believe evidence will be found. See United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997), cert. denied, 523 U.S. 1101, (1998); see also State v. Felix, 942 So. 2d 5, 9-11 (Fla. 5th DCA 2006).

The question for a reviewing court is never: “Does this information preclude every possibility of staleness?” The question for a reviewing court is instead: “Did the issuing magistrate, using ‘practical common sense, ‘ have a substantial basis to conclude that evidence of criminal activity would be found in the location described in the warrant?” Because this is the relevant inquiry, a reviewing court is not conducting a de novo analysis and should not try to imagine and evaluate every possible claim of how the affidavit could have been better or, if other, less incriminating interpretations could be placed on the information provided. If this were the standard for reviewing courts, the purpose of the warrant requirement

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would diminish and change the rule from a neutral magistrate’s review of information, using “practical, common sense” to determine whether probable cause exists, into a hypertechnical drafting exercise. Under the rule the Defendant argues for, all warrants would be subject to challenges from defense attorneys who can always point out how any affidavit could have been better.

Applying the requisite “practical, common sense” standard, there are two aspects of the supporting affidavit that defeat the Defendant’s staleness argument. First, a fair reading of the entire affidavit leads to the reasonable conclusion that the events described did not occur in the distant past. Second, the type of crime the affidavit described and the age of the victim support the county judge’s conclusion that sufficient probable cause existed to issue the warrant.

Although courts have rejected the assumption that child pornographers keep their materials indefinitely, when faced with evaluating staleness in child pornography cases, courts have repeatedly recognized that collectors of child pornography tend to retain their materials for long periods of time. See State v. Felix, 942 So. 2d 5. In reaching this conclusion, courts reason that because of the illegality of the materials, individuals who succeed in obtaining child pornography are unlikely to quickly destroy it. Id.; see also U.S. v. Lamb, 945 F.Supp. at 460 (holding “[t]his proposition is not novel in either state or federal court: pedophiles, preferential child molesters, and child pornography collectors maintain their

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materials for significant periods of time”).

Indeed, the considerable number of courts addressing this issue have held that a warrant to search for child pornography is not stale, even if the criminal activity on which the warrant was based occurred months, sometimes years before the warrant issued.¹

Although Detective Soehlig neglected to include the specific date of the car ride in the affidavit, a “practical, common sense” evaluation of the circumstances set forth in the affidavit, including the type of crime involved, the age of the victims, the allegedly on-going criminal activity (the six-year-old attempted to reassure the seven-year old by saying “It’s ok, he takes pictures of me like that all the time.”), and the type of evidence sought (digital images of child pornography) indicates it was reasonable for the county judge, the issuing magistrate, to conclude

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the Defendant presently possessed child pornography on electronic storage devices in his residence. Thus, we hold the trial court erred in determining the detective’s failure to include the precise date the criminal activity occurred in the supporting affidavit rendered the warrant void.

The Good Faith Exception to the Exclusionary RuleEven if the Defendant were correct in arguing the affidavit supporting the search warrant was technically flawed, we would still reverse the suppression of his child pornography collection and subsequent confession, pursuant to the good faith exception to the exclusionary rule.

According to the United States Supreme Court’s analysis, suppressing evidence when a law enforcement officer presents information to a neutral magistrate and then acts in objectively reasonable reliance on the magistrate’s decision, benefits neither the officer who acts on the warrant or the public in general. In fact, under these circumstances, the substantial cost of exclusion cannot be justified. See U.S. v. Leon, 468 U.S. 897 (1984); see also Johnson v. State, 660 So. 2d 648 (Fla. 1995). Specifically, the United States Supreme Court stated:

We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion…. Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness

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… for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search..

U.S. v. Leon, 468 U.S. at 922.

To determine whether an officer acted in objectively reasonable reliance upon the validity of a warrant, courts must assess whether, given the totality of the circumstances, an officer “armed with the information possessed by the officer who conducted the search” would have believed the warrant to be valid. Id. at 922.

Suppression is reserved as a remedy only in cases where a warrant is based on an affidavit so lacking in any indicia of probable cause as to render “an officer’s belief in its existence entirely unreasonable.” See id. (calling for suppression in instances where an officer conducting a search has no reasonable grounds for believing that the warrant was properly issued.); see also Montgomery v. State, 584 So. 2d 65, 67-68 (Fla. 1st DCA 1991). As the Supreme Court held, “[s]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness.” Id. (emphasis added). This is not one of those rare cases.

Here, the search warrant was not so lacking in any indicia of probable cause as to render Detective Soehlig’s belief in its validity entirely unreasonable. There are at least five facts supporting her belief that the warrant was valid. First, Detective Soehlig was present during the victim interview in which M.S. explained how the Defendant coerced her into pulling down her pants so he could photograph

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her buttocks and vagina. Second, Detective Soehlig personally filled out the affidavit, citing the grounds for the warrant with knowledge of the fact that the photographs were taken only twenty-two days earlier. Third, she sought out an Assistant State Attorney who reviewed the affidavit and informed her it was sufficient to present to the county judge. Fourth, she herself presented the application to the county judge. Fifth, she watched as the judge issued the warrant.

Perhaps if the Defendant had offered evidence to suggest that the county judge did not actually review the information provided and just signed the warrant, or that the detective had lied in the affidavit misleading the issuing magistrate, the Defendant may be able to show it was unreasonable to rely on the warrant. No such evidence was presented. Barring evidence of this magnitude, it is not reasonable to engage in the “deep inquiry” the Defendant urges. If this were the rule, all law enforcement officers would be required to second-guess every decision a judge makes regarding probable cause. There is no reason to believe that they are equipped for such a task or that society would benefit from such practice.

Given the circumstances, it is apparent that a reasonable, well-trained officer “armed with the information” possessed by Detective Soehlig would have believed the warrant to be valid. It was therefore objectively reasonable for her to conduct

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the search of the Defendant’s residence despite the Defendant’s argument that the affidavit could have been better.

We reverse the trial court’s order to suppress both the evidence and confession and we remand for further proceedings consistent with this opinion.

REVERSED.

VAN NORTWICK and THOMAS, JJ., CONCUR.

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^1. See, e.g., State v. Felix, 942 So. 2d at 10-11; U.S. v. Lacy, 119 F.3d at 745 (upholding a defendant’s conviction for possessing child pornography despite a search warrant that issued on information that was ten months old.); U.S. v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993) (stating, “history teaches that [pornography] collectors prefer not to dispose of their dross, typically retaining obscene materials for years”); U.S. v. Irving, 452 F.3d 110, 125 (2d Cir. 2006) (holding child pornography activity two years old was not stale); U.S. v. Peden, 891 F.2d 514, 518-19 (5th Cir. 1989) (finding that a warrant based on a two-year-old delivery from suspected child pornographers and an eight-year-old conviction for solicitation of a minor was not stale); U.S. v. Prideaux-Wentz, 543 F.3d 954 (7th Cir. 2008) (declining to find that in child pornography cases evidence that is two to four years old is stale as a matter of law); U.S. v. Rabe, 848 F.2d 994, 996 (9th Cir. 1988) (upholding warrant despite two-year delay between original seizures and its issuance); U.S. v. Riccardi, 405 F.3d 852, 860-61 (10th Cir. 2005) (holding same for five years).
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Nancy A. Daniels, Public Defender, and Archie F. Gardner, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Heather Flanagan Ross, 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. Linda F. McCallum, Judge.

PER CURIAM.

Mr. Boyer appeals the trial court’s March 18, 2009, Order revoking his probation for violation of two probation conditions. The trial court found that Mr.

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Boyer violated conditions two and four of his probation. Probation condition two required that Mr. Boyer not change his residence or employment or leave the county of his residence without first procuring the consent of his probation officer. Probation condition four required that Mr. Boyer live without violating any law.

We affirm without comment the trial court’s finding that Mr. Boyer violated condition four by committing a new law violation. However, we hold that the trial court improperly found that Mr. Boyer willfully violated condition two. See Williams v. State, 896 So. 2d 805, 806 (Fla. 4th DCA 2005); Thomas v. State, 672 So. 2d 587, 589 (Fla. 4th DCA 1996).

Because it is clear from the record that the trial court would have revoked Mr. Boyer’s probation based solely upon his violation of condition four, we affirm the revocation of Mr. Boyer’s probation. See Mata v. State, 31 So. 3d 257, 260 (Fla. 4th DCA 2010) (affirming revocation of probation where record was clear that trial court would have revoked probation based solely upon the counts properly proven); Jackson v. State, 807 So. 2d 684, 685 (Fla. 2d DCA 2001). However, we remand with instructions to the trial court to strike violation of condition two from the Order. See Cherington v. State, 24 So. 3d 658, 661 (Fla. 2d DCA 2009); Jackson v. State, 807 So. 2d at 686.

AFFIRMED and REMANDED with Instructions.

KAHN, ROWE, and MARSTILLER, JJ. CONCUR.

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

KELLY, Judge.

Joshua Rosa appeals from his judgment and life sentence for the first-degree felony murder of thirteen-year-old Stephen Tomlinson, who died of asphyxia due to strangulation. Rosa argues that his conviction should be set aside because the

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merger doctrine precludes the use of aggravated child abuse as the underlying felony for a felony murder charge if a single act of abuse led to the child’s death. We disagree that the child abuse in this case was a single act and therefore affirm.

In Florida, a defendant may be convicted of first-degree murder under a premeditation theory or under a felony murder theory. See § 782.04, Fla. Stat. (2007). In this case, Rosa was charged under both theories. The case was submitted to the jury with a verdict form that gave the jury the choice of convicting Rosa of either first-degree premeditated murder or felony murder with a predicate act of aggravated child abuse. The jury convicted Rosa of felony murder.

Rosa, citing Brooks v. State, 918 So. 2d 181 (Fla. 2005), argues that when a single act constitutes both the child abuse and the homicide, the offenses merge, and the State is precluded from proceeding to verdict based upon the felony murder theory. In Brooks, the State pursued a felony murder theory with aggravated child abuse as the predicate offense where a child died of a single stab wound. Id. at 197-98. Because there was no separate act of abuse besides the stab wound that caused the child’s death, the court opined that the abuse merged with the homicide and thus could not serve as the predicate felony for a felony murder conviction. Id. at 198-99.

The State argues that Brooks is distinguishable because here the evidence showed that the victim suffered more than one act of violence. We agree. The record reflects that during the struggle the victim suffered multiple injuries in various parts of his body. In addition to neck injuries showing that the attacker used multiple grips or holds, Tomlinson had abrasions on his right wrist, hip, thigh and shin, and on his left arm and hand. Medical experts agreed that the injury to the hip could have been

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caused by someone forcefully yanking off Tomlinson’s pants and belt. Tomlinson also suffered galeal hemorrhages on the top of his head, likely resulting from blunt impact. Contusions in the muscles on Tomlinson’s back were caused by a blunt object with significant force, possibly by the attacker holding Tomlinson down with one knee.

However, even without the evidence of multiple injuries, we would not necessarily conclude that this strangulation constituted a single act of aggravated child abuse. This case is analogous to Lewis v. State, 35 Fla. L Weekly D1014 (Fla. 1st DCA May 6, 2010), in which the defendant was convicted of first-degree felony murder based on aggravated child abuse in the drowning death of her seven-year-old daughter. In Lewis, the First District noted that it did not consider the act of drowning the child to be a single act of abuse. Id. at D1015. In addition to rejecting the contention that the drowning was a single act of abuse, the court held that the merger doctrine did not apply even if it was a single act of abuse. Id.

The plain, unambiguous language of the [felony murder] statute demonstrates that the legislature intended that a defendant who kills a child during the perpetration of the crime of aggravated child abuse may be charged and convicted of both aggravated child abuse and felony murder, regardless of the number of acts of abuse which caused the child’s death.

Id. The court rejected as dicta the statements in Brooks that the State should have been precluded from invoking the felony murder doctrine where a single stab wound caused the victim’s death and that the State should have been limited to proving first-degree murder only on the theory of premeditation. Id. The First District based its conclusion on the fact that the court ultimately affirmed Brooks’s felony murder conviction. Although we cannot agree that the language in Brooks is dicta, we do agree

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it appears to conflict with the plain language of section 782.04.¹ Brooks makes no reference to the statute, thus it remains unclear how the decision in that case can be reconciled with the statute.

Because of the seriousness of this issue, the First District in Lewis certified the following question to the supreme court to be one of great public importance:

WHETHER BROOKS v. STATE, 918 SO. 2D 181 (FLA. 2005), HOLDS THAT AGGRAVATED CHILD ABUSE CANNOT SERVE AS THE UNDERLYING FELONY IN A FELONY MURDER CHARGE IF ONLY A SINGLE ACT OF ABUSE LED TO THE CHILD’S DEATH.

Because we agree that clarification on this issue is needed, we also certify the question to be one of great public importance. We find no merit to Rosa’s remaining points on appeal and therefore affirm.

Affirmed.

NORTHCUTT and WALLACE, JJ., Concur.

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^1. Section 782.04 defines felony murder, in pertinent part, as: (1)(a) The unlawful killing of a human being:

….

2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:

….

h. Aggravated child abuse.
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John H. Trevena, Largo, for Appellant.

Appeal pursuant to Fla. R. App. P.9.141(b)(2) from the Circuit Court for Pinellas County; Christine Helinger, Judge.

CASANUEVA, Chief Judge.

Peter Albert Cantone was accused of three counts of capital sexual battery on his four-year-old daughter. At the jury trial, the State presented no physical evidence of any sexual contact with the child. The child herself testified but denied, in contradiction to earlier statements, that any illegal acts had been committed. Most of the evidence the State presented to show Cantone’s guilt were the testimonies of the child abuse investigator and two law enforcement officers who interviewed the child and Cantone. At the close of the State’s case, when the trial court denied Cantone’s motion

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for judgment of acquittal, Cantone and the prosecutor reached an agreement for a plea to lesser charges of lewd and lascivious molestation in exchange for concurrent split sentences of seven years’ incarceration followed by thirteen years’ probation as a sex offender. No direct appeal was taken. Cantone now appeals from a summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Cantone filed his first postconviction motion pro se and alleged seven grounds for relief. He then was allowed to retain private counsel who moved to hold Cantone’s pro se motion in abeyance because counsel needed additional time to review the voluminous files and complexities of the case and prepare an amended postconviction motion. At the hearing on this motion, postconviction counsel requested that the pro se motion be held in abeyance for sixty days. The postconviction court orally granted an abeyance of sixty days but the written order imposed no time limitation. When retained counsel filed a “supplement” to the pro se motion nine days later, it contained two additional grounds, one of which contained three subparts. The postconviction court ordered the State to respond to several of the nine claims after which it summarily denied relief on all grounds. We conclude the postconviction court properly denied relief summarily on grounds one, two, four, five, six, seven, eight (B)-(C), and nine. These grounds do not merit further discussion. We reverse the denial of relief on grounds three and eight (A).

In ground three of his postconviction motion, Cantone claimed that defense counsel was ineffective for not allowing him to testify to explain the circumstances surrounding his statements to the investigating officers that inculpated

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him for the illegal sexual contacts between him and his daughter. He alleged that the officers who interviewed him misinterpreted his oral colloquy with himself as admissions. He also claimed that counsel did not adequately explain the alternatives to pleading. The postconviction court determined that his statement to the court at the midtrial change of plea hearing that he was satisfied with his counsel’s representation precluded the first claim. The postconviction court further determined that his second claim that counsel did not discuss the alternatives to pleading was conclusory. We agree that the latter claim was framed in a conclusory manner. But as regards the first claim, we disagree that his statement at the change of plea hearing sufficiently warranted summary denial. In either case, the postconviction court should have dismissed ground three with leave to replead under Spera v. State, 971 So. 2d 754 (Fla. 2007). If Cantone timely repleads ground three, the postconviction court should evaluate its merits and only deny it summarily again if it is not factually and legally sufficient or is conclusively refuted by record attachments. Otherwise, Cantone is entitled to an evidentiary hearing on this ground.

Reversal is also required for the denial of relief on ground eight (A) but not because it had or lacked merit. Ground eight (A) claimed that Cantone’s midtrial plea to lesser offenses in exchange for concurrent split sentences was involuntary because the trial court did not inform him at the time what the maximum sentences were for the offenses to which he was pleading or the consequences of violating the subsequent probation. The postconviction court ordered the State to respond.

In its response, the State argued that although grounds one through seven were timely filed within the two-year limit of the rule, ground eight (A), filed by retained

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postconviction counsel, raised a wholly new claim from the previous pro se seven and was thus untimely because counsel filed it beyond the two-year limit. The State also maintained that counsel’s “motion to hold in abeyance” could not be considered a motion to extend the time for filing postconviction claims or for leave to file new but untimely claims. The postconviction court agreed with the State and denied ground eight (A) as untimely filed. In this, the postconviction court erred.

It was clear to all, especially after the court announced at the hearing on the motion that it would allow an abeyance of sixty days, that it was, in effect, granting an extension of time. The clear inference of the granting of the motion was to allow retained counsel the opportunity to not only amend the prior claims but to add new claims that a legally-trained advocate might recognize but a pro se defendant might not. We therefore reverse this part of the order and remand the case with instructions that the postconviction court consider ground eight (A) as timely filed.

In summary, we affirm that part of the order denying postconviction relief on grounds one, two, four, five, six, seven, eight (B)-(C), and nine. We reverse the remaining part of the order that denied postconviction relief on grounds three and eight (A). We remand the case for further proceedings in accordance with this opinion.

WHATLEY and LaROSE, JJ., Concur.

Jose Isreal Negron, pro se.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Thane B. Covert, Judge.

PER CURIAM.

Jose Israel Negron appeals an order denying his motion for postconviction relief. See Fla. R. Crim. P. 3.850. We affirm, in part, reverse, in part, and remand for further proceedings.

Mr. Negron filed his motion in August 2008. On February 2, 2009, the postconviction court denied claims one, three, four, five, and seven; it struck claims two and six, with leave to amend within thirty days. The postconviction court noted that its order was nonfinal and nonappealable.

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Apparently, Mr. Negron filed a motion to extend the time in which he could amend his claims. See Fla. R. Crim. P. 3.050. According to Mr. Negron, he gave it to prison officials for mailing on February 23, 2009. See Haag v. State, 591 So. 2d 614, 616-17 (Fla. 1992) (explaining “mailbox rule”); Bulley v. State, 857 So. 2d 237, 239 (Fla. 2d DCA 2003) (“[A] pro se postconviction relief motion is deemed filed on the date the inmate relinquished control of the document to State officials for delivery.”). It does not appear that the motion for extension of time was before the postconviction court when, on March 17, 2009, it entered a final order denying Mr. Negron’s rule 3.850 motion in its entirety.

The postconviction court properly denied claims one, three, four, five, and seven. We affirm as to those claims. But, we reverse and remand as to claims two and six. The postconviction court should consider whether a proper motion for extension of time was filed. If so, the postconviction court should address whether further consideration, by amendment or otherwise, is warranted for claims two and six.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY, WALLACE, and LaROSE, JJ., Concur.

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

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Orange County,

Lisa T. Munyon, Judge.

PER CURIAM.

Jermaine Young (defendant) appeals his sentences, arguing that the trial court erred in imposing consecutive Prison Releasee Re-Offender (PRR) sentences on his five aggravated assault convictions because all of the crimes occurred during the course of a single criminal episode. We find no error and affirm.

Because we agree with the well reasoned holding set forth by the trial court in its order denying the defendant’s motion to correct sentencing error, we include it here and adopt it as our own. The trial court’s order reads, in pertinent part, as follows:

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ORDER DENYING MOTION TO CORRECT

SENTENCING: ERROR

* * *Through appellate counsel, defendant alleges that the trial court erred by imposing consecutive prison releasee reoffender (hereinafter, “PRR”) sentences for counts two through six. In support, he cites Boyd v. State, 988 So. 2d 1242, 1244 (Fla. 2nd DCA 2008); Gonzalez v. State, 876 So. 2d 658, 661-662 (Fla. 3rd DCA 2004); Williams v. State, 804 So. 2d 572, 573 (Fla. 5th DCA 2002); and Philmore v. State, 760 So. 2d 239, 240 (Fla. 4th DCA 2000). The foundation upon which each of the cited cases is based and the precedential value are called into question by Reeves v. State, 957 So. 2d 625 (Fla. 2007).

A review of the cases cited reveals that each court ultimately reached the conclusion that PRR sentences could not be imposed consecutively when the offenses were part of the same criminal episode based upon Hale v. State, 630 So. 2d 521 (Fla. 1993) and its progeny. The most recent of the cases cited is Boyd, supra, in which the Second District, in dicta, noted the correctness of the trial court’s ruling which removed a consecutive PRR designation, citing Smith v. State, 824 So. 2d 263, 264 (Fla 2d DCA 2002). The Smith court cited Hale, supra, Smith v. State, 800 So. 2d 703 (Fla. 5th DCA 2001)(citing Hale, among other cases), and Philmore v. State, 760 So. 2d 239 (Fla. 4th DCA 2000).

In Gonzalez v. State, 876 So. 2d 658, 661-662 (Fla. 3rd DCA 2004), the Third District concluded that a defendant could not be sentenced to consecutive PRR sentences arising from the same criminal episode, citing Rodriguez v. State, 835 So. 2d 1172, 1173 (Fla. 2nd DCA 2002) (citing Smith, 824 So. 2d at 264); Robinson v. State, 829 So. 2d 984, 985 (Fla. 1st DCA 2002) (citing Hale, supra; Williams, supra; and Smith, 800 So. 2d at 703-04, among others); McIntyre v. State, 757 So. 2d 1288 (Fla. 4th DCA 2000) (citing Hale, supra).

In Williams v. State, 804 So. 2d 572, 573 (Fla. 5th DCA 2002), the Fifth District came to a similar conclusion, citing Smith v. State, 773 So. 2d 1278 (citing Hale, supra; Philmore, supra; and McIntyre, supra) and Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000) (citing Hale, supra, and Philmore, supra).

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Finally, in Philmore v. State, 760 So. 2d 239, 240 (Fla. 4th DCA 2000), the Fourth District found consecutive PRR sentences for crimes committed in a single criminal episode inappropriate, citing the state’s concession on the point and Hale, supra. Each of the cases relied upon by the defendant to challenge the sentence imposed in counts two through six has its genesis in the Hale decision.

Subsequently, the Fifth District recognized in Reeves v. State, 920 So. 2d 724 (Fla. 5th DCA 2006) that the prison releasee reoffender act is not an enhancement statute, but rather, a minimum mandatory statute, and thus, the rule established in Hale had no application to the PRR statute. The Florida Supreme Court agreed in Reeves v. State, 957 So. 2d 625, 633 (Fla. 2007) finding that Hale had little bearing on the interpretation of the PRR statute. In finding that the trial court had the discretion to impose a criminal punishment code sentence consecutively to a PRR sentence for offenses arising from the same criminal episode, the Court stated,

“Paragraph (b) indicates that section 775.082(9) dictates a minimum sentence or sentencing floor, not a statutory maximum….Moreover, nothing in the PRR statute can be construed as restricting a trial judge’s general discretion to impose sentences consecutively or concurrently.”

Reeves at 630.

Based upon the Supreme Court’s decision in Reeves, the cases cited by defendant, all of which rely upon Hale as their foundational authority, are called into question. Given the holding in Reeves and the stated intent of the PRR statute to punish eligible offenders to the fullest extent of the law, the court can find no reasonable interpretation of the PRR statute that would prohibit consecutive PRR sentences but permit the imposition of consecutive PRR and criminal punishment code sentences as approved in Reeves.

AFFIRMED.

PALMER, TORPY and COHEN, JJ., concur.