Florida Criminal Law Opinions

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STATE OF FLORIDA, Appellant,
v.
S.S., A Child, Appellee.

No. 4D08-4965.

District Court of Appeal of Florida, Fourth District.

June 16, 2010.

Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Robert J. Fogan, Judge, L.T. Case No. 02-12086 DL.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellee.

MAY, J.

The State appeals a trial court order granting a juvenile’s motion to vacate her plea and set aside the judgment and sentence. The State argues that the motion should have been denied as untimely. We treat this appeal as a petition for writ of certiorari and deny the petition.

On March 6, 2003, the juvenile entered a no contest plea. The court withheld adjudication and placed the juvenile on probation. Supervision was terminated on November 13, 2003. In December 2007, when the juvenile applied for a clinical position for a nursing program, she learned that she had a criminal record that could not be sealed or expunged. In June 2008, the juvenile filed a “Motion to Vacate and Set Aside Judgment and Sentence” with a memorandum of law and attached exhibits. The motion argued that her plea was involuntary. The State responded that the motion was time-barred.

The juvenile then filed a “Petition for Writ of Error Coram Nobis” with exhibits. She argued that her plea was uninformed because she was unaware of the consequences of her plea.¹ She requested that she be able to withdraw her plea. The State responded that the petition was time-barred, legally insufficient, and the juvenile had failed to establish prejudice.

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The trial court made the following findings after an evidentiary hearing.

No. 1, that the trial court failed to make a thorough inquiry into a juvenile’s comprehension of the plea offer; that is, the plea colloquy constitutes fundamental error, it being insufficient. The Court secondly finds the child received affirmative misadvice by the defense attorney with regard to what could, or could not, be done with regard to the record. The Court therefore finds that the plea colloquy was insufficient to the point of being void.

The Court further finds that the petition was filed within one year of the child having determined that she could not have a record sealed by FDLE in December of `07, 2-0-0-7.

Now based upon that, and I say this with some reluctance, the Court finds that with those findings, the Court has the obligation to grant the motion.

The trial court subsequently entered a written order.

Before we address the issue raised on appeal, we must address the jurisdiction of this court to review the trial court order. The State’s right to appeal a final order in a juvenile delinquency proceeding is purely statutory. State v. M.K., 786 So. 2d 24, 25 (Fla. 1st DCA 2001).

Section 985.534(1)(b), Florida Statutes (2009), provides a list of orders from which the State may appeal. That list includes:

1. An order dismissing a petition or any section thereof;

2. An order granting a new adjudicatory hearing;

3. An order arresting judgment;

4. A ruling on a question of law when the child is adjudicated delinquent and appeals from the judgment;

5. The disposition, on the ground that it is illegal;

6. A judgment discharging a child on habeas corpus;

7. An order adjudicating a child insane under the Florida Rules of Juvenile Procedure; and

8. All other preadjudicatory hearings, except that the state may not take more than one appeal under this subsection in any case.

§ 985.534(1)(b), Fla. Stat. (2009).

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The statute provides no authority for the State to appeal an order vacating a plea and setting aside judgment and sentence. Id. The order does not dismiss a petition, grant a new adjudicatory hearing, arrest judgment, constitute an illegal disposition, discharge the juvenile on habeas corpus, or adjudicate the child insane. And, the order did not result from a pre-adjudicatory hearing. The State simply has no right to appeal the order. See D.A.E. v. State, 478 So. 2d 815, 815 (Fla. 1985); State v. M.K., 786 So. 2d 24, 26-27 (Fla. 1st DCA 2001).

Nevertheless, we can construe the appeal as a petition for writ of certiorari. Fla. R. App. P. 9.030(b)(2); State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988). We must then determine whether the trial court deviated from the “essential requirements of the law from which the petitioner will suffer irreparable harm which cannot be cured on plenary appeal.” Scherer v. Rigsby, 24 So. 3d 561, 561 (Fla. 4th DCA 2009).

In its brief, the State argues there is no authority for the juvenile’s request to vacate the plea, and that the juvenile had only one year within which to request extraordinary relief, pursuant to Florida Rule of Juvenile Procedure 8.140. We disagree.

As the State acknowledges, a juvenile can challenge the voluntariness of a plea by petition for writ of habeas corpus. See, e.g., State v. T.G., 800 So. 2d 204 (Fla. 2001); D.E.R. v. State, 993 So. 2d 1030 (Fla. 2d DCA 2008). Further, rule 8.140 allows a juvenile to move for relief from an order, judgment or proceeding for a number of reasons, including:

(1) Mistake, inadvertence, surprise or excusable neglect.

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for rehearing.

(3) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of any other party;

(4) That the order or judgment is void.

Fla. R. Juv. P. 8.140(a). Motions relying on subsections (1), (2), and (3) must be made no more than one year after the judgment, order or proceeding. Fla. R. Juv. P. 8.140(b). A challenge to a void judgment however must be made within a reasonable time. Id.

The juvenile alleged two grounds to withdraw the plea. First, she alleged affirmative misadvice of counsel concerning the direct

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consequences of her plea. Second, she alleged an unknowing plea based upon an inadequate plea colloquy.

The plea in this case suffered from multiple infirmities. The trial court did not place the child under oath or question her about her understanding of the plea, the possible dispositions, consequences, and whether she understood the rights she was waiving. In fact, the colloquy was so brief, it was almost nonexistent. Because the juvenile established that she would not have entered the plea had she been properly advised, the requisite prejudice existed to render the judgment void. See, e.g., Koenig v. State, 597 So. 2d 256 (Fla. 1992); Joseph v. State, 904 So. 2d 577 (Fla. 4th DCA 2005). Additionally, the trial court specifically found the juvenile’s motion was timely, and made within the one year of discovering that her record was ineligible for expunction.

We find State v. D.A.G., 995 So. 2d 601 (Fla. 1st DCA 2008) distinguishable.² There, the court reversed a trial court order that vacated a juvenile disposition order. Id. at 602. While the court found the plea void, it considered the judgment only voidable where the juvenile failed to allege prejudice; i.e., the juvenile would not have entered the plea if he had been properly questioned. Id. Because the motion to vacate had been filed more than eight years after entry of the disposition order, it was not filed within a reasonable time nor did it constitute a void judgment. Here, the child both alleged and proved the requisite prejudice, but also filed the motion within one year of discovering the error.

We therefore treat this appeal as a petition for writ of certiorari, but we deny the petition as the trial court adhered to the essential requirements of the law.

Denied.

WARNER, J., concurs.

TAYLOR, J., concurs in part and dissents in part with opinion.

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Notes:

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TAYLOR, J., concurring in part and dissenting in part.

I disagree with the majority’s position that the state does not have the right to appeal the trial court’s order vacating the plea and judgment in this case. The state should be able to appeal the order pursuant to

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section 985.534(1)(b)(2), Florida Statutes (2009) and Rule 9.145(c)(1)(C), Fla. R. App. P. These provisions allow the state to appeal an order “granting a new adjudicatory hearing.” The order setting aside the juvenile’s plea and disposition order is tantamount to an order “granting a new adjudicatory hearing” and, thus, should be subject to appeal by the state. When the plea is set aside because of irregularities or deficiencies in the plea proceedings, the case does not go away. Rather, the proceedings begin anew and the juvenile is given the opportunity for a new adjudicatory hearing.

In State v. D.A.G., 995 So. 2d 601 (Fla. 1st DCA 2008), the first district entertained the state’s appeal of an order vacating an order of disposition that adjudicated a juvenile delinquent. As here, the order was based on the juvenile’s assertion that the trial court failed to make the requisite inquiry prior to accepting the plea. Although the issue of the appellate court’s jurisdiction to hear the state’s appeal may not have been raised by the appellee in D.A.G., in my view, the court properly exercised its jurisdiction in reviewing the challenged order.

Also, though I agree that the plea colloquy in this case was inadequate, I believe that S.S. waited too late to assert her claim that the plea was involuntary due to misadvice of counsel as to collateral consequences. To be timely, her motion should have been filed within one year (or within a reasonable time) of the date on which the disposition order was entered, rather than the date on which she discovered that her juvenile records would not be expunged until age 24. Generally, when a defendant seeks to set aside a conviction and sentence based on an assertion that he relied on his attorney’s erroneous advice in entering a plea, the defendant must file for relief within two years of his judgment and sentence becoming final. See State v. Green, 944 So. 2d 208, 217-219 (Fla. 2006J; Marshall v. State, 983 So. 2d 680 (Fla. 4th DCA 2008).

Marshall is factually similar to this case. There, the defendant entered a plea to lewd assault in 1998. About nine years later, he challenged the voluntariness of his plea on the ground that his attorney misadvised him that, because adjudication would be withheld, he would not have a criminal record. Our court, en banc, determined that his postconviction motion was untimely. In so ruling, we receded from our earlier decision in Miralles v. State, 837 So. 2d 1083 (Fla. 4th DCA 2003), wherein we had held “that a rule 3.850 motion may be filed within two years of discovering counsel’s misadvice regarding a collateral civil consequence of entering a plea.” Marshall, 983 So. 2d at 682. We changed our holding to require a defendant to file his claim within two years after his conviction became final. We reasoned:

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If a collateral consequence of a plea, such as the impact on professional licensing, is of such import that it would cause a defendant to not enter a plea and insist on proceeding to trial, then it should be discovered with the exercise of due diligence within two years of the conviction becoming final. The defendant must exercise due diligence within this time limit to assure that counsel’s advice was accurate.

Although post-conviction procedures under Rule 3.850 do not apply to juvenile proceedings, see State v. T.G., 800 So. 2d 204, 213 (Fla. 2001), the strong public interest in finality of criminal convictions should apply equally to juvenile orders of disposition. In this case, the juvenile’s motion for relief was not filed until almost five years after her plea and disposition order were entered. The trial court found it timely, however, because it was filed within a year of the date when she learned about the age for expunction. The record does not show why she could not have discovered this earlier with the exercise of due diligence. As the Florida Supreme Court warned, allowing extended time limits for bringing these motions can result in unreasonable delay and render plea transcripts, evidence, and witnesses unavailable. See Green, 944 So. 2d at 216.

However, if the majority is correct that certiorari is the only avenue for review available to the state, then I would agree that the state’s petition for writ of certiorari should be denied. Because the juvenile statutes, rules, and case law do not provide clear guidance to the trial court on the issues raised in this case, I would not find that the trial court departed from the essential requirements of the law.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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CARL WINTHORPE PRINCE, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3396.

District Court of Appeal of Florida, Fourth District.

June 16, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Burton C. Conner, Judge, L.T. Case No. 562000CF002862A.

Carl Winthorpe Prince, Jr., Jasper, pro se.

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

PER CURIAM.

We affirm the trial court’s denial of appellant’s postconviction motion. See Fla. R. Crim. P. 3.850. The sole issue raised by appellant in this appeal is without merit. Although he argues that he should have been permitted an opportunity to amend his claim that counsel was ineffective in his handling of a sleeping juror,¹ the record conclusively refutes the allegations of ineffectiveness. Upon being informed of the drowsy juror, counsel immediately brought the matter to the trial court’s attention. The judge, who had seen the juror resting his head against the wall but not sleeping, agreed to keep an eye on the juror to ensure he did not doze off. Counsel did not perform deficiently. Summary denial was proper.

After holding an evidentiary hearing, the trial court denied appellant’s other postconviction claims in a thoroughly-detailed order. Appellant has not raised any error in the denial of these issues in his brief, and they are waived. Shere v. State, 742 So. 2d 215, 217 n.6 (Fla. 1999); see Hammond v. State, 35 Fla. L. Weekly D670 (Fla. 4th DCA Mar. 24, 2010). But see Walton v. State, 35 Fla. L. Weekly D856 (Fla. 2d DCA Apr. 16, 2010) (disagreeing that a pro se appellant in an appeal from the denial of a postconviction motion in a non-capital case waives issues by not presenting argument in a pro se initial brief).

The Walton court believes that the Florida Supreme Court’s holding that issues not argued in briefs are waived applies only to death penalty postconviction proceedings where the appellant is represented by

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appointed counsel; not to a pro se appellant in non-capital postconviction proceedings. We disagree. We also find it ironic that the Walton opinion suggests less protection for those sentenced to death than for non-capital postconviction litigants. We understand that pro se pleadings must be interpreted liberally, and that pro se postconviction litigants cannot be held to the same standards as attorneys. We do not believe, however, that requiring a pro se postconviction litigant to demonstrate error on appeal is an unfair burden.

Postconviction movants in non-capital cases are generally not entitled to appointed counsel. These pro se, often prisoner, litigants are required to meet the pleading standards of the rules and bear the burden of demonstrating a basis for postconviction relief in the proceedings at the trial court level. Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (“The right of self-representation . . . . is [not] a license not to comply with relevant rules of procedural and substantive law.”). Trial court rulings, like convictions and sentences, are generally presumed correct. These bedrock legal principles should not change when a pro se litigant appeals the denial of a postconviction motion.

In appeals from the summary denial of Rule 3.850 motions, the rules do not require briefs. Fla. R. App. P. 9.141(b)(2)(C) (“No briefs or oral argument shall be required . . .”). When the pro se appellant opts to file a brief, we believe that, as in all appeals, the burden rests on the appellant to demonstrate reversible error. An appellant who presents no argument as to why a trial court’s ruling is incorrect on an issue has abandoned the issue-essentially conceding that denial was correct.

The Walton approach requires Anders²-like review of all postconviction claims raised below, even when the movant files a brief and presents no argument on appeal as to why denial of some claims is error. As the appellate rules are currently drafted, because briefs are not required in appeals of summarily-denied Rule 3.850 motions, if no brief is filed, the appellate court must review the complete postconviction record, much like Anders review, to determine whether there is any reversible error. Courts may be needlessly reviewing many claims which the appellant no longer disputes, especially if the trial court has adequately explained the reason for denial. This anomaly should be corrected, and the appellate

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rules amended to permit a reviewing court to require the postconviction appellant to submit a brief. Rule 9.141(b)(2)(C) should be amended to add the following underlined language: “No briefs or oral argument shall be required unless ordered by the reviewing court. . . .”

The Anders-like review results from language in Rule 9.141(b)(2)(D) which provides: “[U]nless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” We understand this language to set forth the standard of review and not to create a presumption in favor of reversible error. Like any other appellant, a pro se postconviction litigant should bear the burden of showing that the claim is legally sufficient and not refuted by the trial court’s order and attachments. In no other context is a pro se litigant afforded a presumption of reversible error and excused from having to demonstrate reversible error on appeal.

This case is a good example of why failure to present argument abandons a claim. In this case, the trial court held an evidentiary hearing and entered a detailed order making factual findings and legal conclusions.³ Prince has not presented any argument, and it is unlikely he can do so, to show the court’s ruling is incorrect or that reversal of these claims is required.

The facts of Walton exemplify why an Anders-style approach to review of summarily denied postconviction motions is unworkable and magnifies the burdens that often abusive postconviction litigation places on the legal system. Walton, a pro se prisoner litigant, filed an amended postconviction motion raising twenty-four claims. A number of those claims were conclusory and were summarily denied.⁴ Although Walton’s

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initial brief had not taken issue with any of these summarily denied claims, and although Walton had not argued that he could state a sufficient claim as to any of those grounds, the appellate court reversed the denial of these claims and required that Walton be given a chance to amend, relief that even Walton had not requested.

We affirm for the reasons discussed above and certify our conflict with Walton.

Affirmed.

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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CEDRIC ADAMS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-222.

District Court of Appeal of Florida, Fourth District.

June 16, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, John T. Luzzo, Judge, L.T. Case No. 07-21044 CACE 18.

Rhonda F. Goodman of Rhonda F. Goodman, P.A., Miami, for appellant.

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

POLEN, J.

Appellant, Cedric Adams, appeals the trial court’s order denying his petition for removal of sex offender registration requirement and order denying his amended motion for rehearing and request for oral argument and motion for leave to amend petition. We affirm the trial court’s orders insofar as Adams neglected to exhaust his administrative remedies under the statute that is most applicable to his situation. However, we also reverse in part because the trial court should have allowed Adams leave to bring a petition for writ of mandamus instead of dismissing Adams’ petition completely.

In 1997, when Adams was a teenager, he was convicted in Washington State of third degree child molestation for engaging in consensual sexual relations with a younger teenage girl. Upon his petition, a Washington court agreed to lift the requirement that Adams register as a sexual offender. Adams subsequently moved to Florida where he petitioned the Circuit Court of Broward County to remove the requirement that he register as a sexual offender in Florida pursuant to section 943.04354(1), Florida Statutes (2007), which provides:

(1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person:

(a) Was or will be convicted or adjudicated delinquent of a violation of s. 794.011, s. 800.04, or s. 847.0135(5) or the person committed a violation of s. 794.011, s. 800.04, or s. 847.0135(5)

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for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011, s. 800.04, or s. 847.0135(5);

(b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and

(c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation.

§ 943.04354(1), Fla. Stat. (2007).

The trial court denied Adams’ petition based on its determination that section 943.04354 was limited to convictions under Florida statutes and did not reference convictions for analogous offenses in other states.

Adams moved for rehearing and for leave to amend his petition. In his motion for rehearing, Adams argued that the trial court’s denial of his original petition violated his constitutional rights under the Full Faith and Credit Clause and the Equal Protection Clause of both the United States and Florida Constitutions. In his motion for leave to amend his petition, Adams explained that he was entitled to relief under section 943.0435(11)(b), which allows for an offender’s registration requirement to be lifted in Florida once the offender submits to the Florida Department of Law Enforcement (FDLE) an order, from the court which originally designated the individual a sexual offender, stating that such designation has been removed.¹ § 943.0435(11)(b), Fla. Stat. (2007).

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The trial court denied Adams’ motions, noted that section 943.0435(11)(b) was more applicable, directed Adams to petition the FDLE and to provide them with the Washington order lifting the registration requirement. The court also noted that if the FDLE refused to lift Adams’ registration requirement, Adams could file a petition for writ of mandamus in the appropriate circuit court.

Instead of proceeding on the trial court’s advice, Adams appealed to this court. We hold that litigating under section 943.04354(1) was premature. Adams must first exhaust his administrative remedies under section 943.0435(11)(b), which is the statute more tailored to Adams’ situation, by petitioning the FDLE and perhaps even filing a petition for writ of mandamus with the circuit court. We reverse the trial court’s order to the extent that the court denied Adams’ petition outright and refused to grant Adams leave to file a petition for writ of mandamus.

Thus, we need not reach the constitutional/full faith and credit issues Adams has raised on appeal. Also, we note that neither the trial court’s dismissal nor our decision is a determination on the merits under section 943.04354(1) and thus should not be construed to potentially bar Adams from bringing another claim under section 943.04354(1) if necessary in the future.

Finally, on remand this case should be transferred to the criminal court as the statute at issue is within Title XLVII Criminal Corrections and Procedure.

Affirmed in part, reversed in part, and remanded.

GERBER and LEVINE, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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JOHNNY MACK VICK, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-3831.

District Court of Appeal of Florida, Second District.

Opinion filed June 16, 2010.

Appeal from the Circuit Court for Hillsborough County, Wayne S. Timmerman, Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

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

VILLANTI, Judge.

Johnny Mack Vick, Jr., appeals his conviction and sentence for felony battery. We affirm his conviction and sentence without comment. However, we reverse two costs imposed by the trial court, and we remand for further proceedings limited to those costs.

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Vick argues that the trial court erred because its written order imposed a lump sum of $664¹ in “mandatory court costs” without identifying the statutory basis for those costs. These costs were not mentioned at the sentencing hearing and are not explained in the written order. We have been unable to decipher their basis. Vick preserved this sentencing error by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on the motion within 60 days; thus, it is deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B), (b)(1)(B). “The statutory authority for all costs imposed, whether they are mandatory or discretionary, must be cited in the written order.” Kirby v. State, 695 So. 2d 889, 890 (Fla. 2d DCA 1997). Therefore, we strike the $664 in unidentified costs. On remand, the trial court may reimpose these costs if it provides statutory authority for their assessment.

Vick also argues that the trial court erred in orally imposing a $150 cost of prosecution because the cost was not requested by the State and because no supporting documentation was presented for this cost. However, this issue was not preserved for appellate review. See Rivera v. State, 35 Fla. L. Weekly D1051 (Fla. 2d DCA May 12, 2010) (holding that imposition of prosecution costs was not preserved for appellate review because the defendant did not raise a contemporaneous objection at the sentencing hearing when the trial court announced that it was imposing those costs).

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Finally, Vick argues that the trial court erred in orally imposing a $150 lien to the public defender’s office without giving him notice of his right to a hearing to contest the amount of the lien. Florida Rule of Criminal Procedure 3.720(d)(1) provides that a defendant must be advised at the time of sentencing of his right to a hearing to contest the amount of any public defender lien imposed. See also § 938.29(5), Fla. Stat. (2007). Because Vick was not advised of his right to a hearing to contest the amount of the public defender lien, we reverse and direct the trial court to strike the lien. See McMillan v. State, 8 So. 3d 1237, 1238 (Fla. 2d DCA 2009) (reversing public defender fee where trial court did not advise the defendant that he had a right to contest the fee at a hearing); Webster v. State, 998 So. 2d 655, 656-57 (Fla. 2d DCA 2009) (same). On remand, Vick shall have thirty days from this court’s mandate to file a written objection to the public defender lien amount assessed. See Webster, 998 So. 2d at 657. If Vick files an objection, the trial court shall hold a hearing; if he fails to timely object, the trial court may reimpose the lien. Id.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and MORRIS, JJ., Concur.

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

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Notes:

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Courtesy of David Edelstein

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The State of Florida, Appellant/Respondent,
v.
Nadim Yaqubie, Appellee/Petitioner.

No. 3D09-999.

Consolidated No. 3D09-2093.

District Court of Appeal of Florida, Third District.

Opinion filed June 16, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 08-18175, Daryl E. Trawick, Judge.

A Case of Original Jurisdiction — Prohibition.

Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellant/respondent.

Hersch & Talisman and Richard Hersch, for appellee/petitioner.

Before WELLS, ROTHENBERG and LAGOA, JJ.

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WELLS, Judge.

Nadim Yaqubie seeks a writ of prohibition claiming immunity from prosecution under section 776.032 of the Florida Statutes (2008). The State of Florida seeks review of an order reducing the original second degree murder charge filed against Yaqubie to manslaughter. We grant the writ and remand for an evidentiary hearing to determine whether Yaqubie’s immunity claim is supported by the preponderance of the evidence. We also find that the second degree murder charge must be reinstated should the court below determine that Yaqubie is not immune from prosecution.

Undisputed Facts

The essential facts involved here are not disputed. In the early hours of May 18, 2008, in an alley in Miami Beach, nineteen-year-old Nadim Yaqubie stabbed fifty-year-old Robert Camacho multiple times with a seven-inch knife. Two of these wounds were sufficiently serious to cause Camacho’s death.

Petition for Writ of Prohibition (Immunity)

On May 19, Yaqubie was arrested and charged with second degree murder. Yaqubie does not deny that he stabbed Camacho to death, but claims that the stabbing occurred while Camacho was assaulting, battering, or robbing him, making him immune from prosecution under section 776.032 of the Florida Statutes. See § 776.032, Fla. Stat. (2008) (commonly referred to as the “Stand Your Ground” law and providing that a person who uses force as authorized in

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sections 776.012, 776.013, or 776.031, “is immune from criminal prosecution and civil action for use of such force”); § 776.012, Fla. Stat. (2008) (providing that use of deadly force is justified where an individual “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony”); § 776.08, Fla. Stat. (2008) (defining “forcible felony” as including aggravated assault, aggravated battery, and robbery).

The court below, applying the standard enunciated in Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009), essentially treated Yaqubie’s immunity claim as an affirmative defense and denied the motion to dismiss because “material facts [were] at issue in the case.” Yaqubie claims that the court below applied the incorrect standard and should have applied the standard enunciated in Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008), to determine whether a preponderance of the evidence shows that he is immune from prosecution under section 776.032. We agree with Yaqubie and therefore grant the instant writ.

In Velasquez, the Fourth District Court of Appeal addressed the procedure to be followed in handling section 776.032 motions. Looking to Florida Rule of Criminal Procedure 3.190(c)(4), the court concluded that a motion to dismiss on section 776.032 immunity grounds must be denied when, on no more than a

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specific denial in a traverse, a material disputed fact issue is made to appear, in effect treating such a claim as an affirmative defense:

Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure provides for the filing of a motion to dismiss when “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” Subsection (d) allows for the state to traverse or demur the motion and for the court to receive evidence on any issue of fact. It then provides that “[a] motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.” Fla. R. Civ. P. 3.190(d).

Velasquez, 9 So. 3d at 23-24.

In Peterson, the First District Court of Appeal decided that section 776.032 is a true immunity provision, not merely an affirmative defense, which requires a trial court to adjudicate disputed fact issues rather than passing them on to a jury as it would an affirmative defense:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist.

. . . .

Likewise we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. . . . We reject any suggestion that the procedure established by rule 3.190(c) should control so as to require denial of a motion whenever a material issue of fact appears.

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Peterson, 983 So. 2d at 29-30.

Florida’s Second and Fifth District Courts of Appeal have now adopted the standard and procedure enunciated in Peterson, as we do now by virtue of this decision. See Horn v. State, 17 So. 3d 836, 839 (Fla. 2d DCA 2009) (“We agree with the First District—that our legislature intended to create immunity from prosecution rather than an affirmative defense and, therefore, the preponderance of the evidence standard applies to immunity determinations.”); Gray v. State, 13 So. 3d 114, 115 (Fla. 5th DCA 2009) (“In our prior opinion, which was issued virtually simultaneously with Velasquez, we adopted the procedure described in Peterson. Now, with the benefit of Velasquez, we see no reason to alter our opinion.”). The petition for writ of prohibition is, therefore, granted with this matter remanded to the court below for an evidentiary hearing applying the standard enunciated in Peterson. To the extent this decision conflicts with the Fourth District’s decision in Velasquez, we certify conflict.

Motion to Dismiss

We also reverse the order granting Yaqubie’s Rule 3.190(c)(4) motion to dismiss which reduced the original second degree murder charge filed against him to a charge of manslaughter. Second degree murder is defined as the “unlawful killing of a human being, when perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life . . . .” § 782.04(2),

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Fla. Stat. (2008). As the Standard Jury Instruction on second degree murder confirms, an act is “imminently dangerous to another and demonstrating a depraved mind” if it is one that:

1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an indifference to human life.

Fla. Std. Jury Instr. (Crim.) 7.4 Murder.

Yaqubie does not claim that stabbing someone in the abdomen and chest so hard that it actually results in death is either not an act that a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury or is not an act indicative of an indifference to human life. Rather he claimed below that because he was acting in self-defense, ill will, hatred, spite, or evil intent could not be demonstrated requiring either dismissal of the second degree murder charge against him or reduction of that charge to manslaughter. The court below agreed with Yaqubie, concluding that the facts leading up to Camacho’s death were “insufficient as a matter of law to prove the evil intent or ill will necessary to rebut the defendant’s claim of self-defense to the charge of second-degree murder.” We cannot agree with this determination.

Page 7

The facts largely come from a statement made by Yaqubie to the police following his arrest. According to Yaqubie, who was nineteen years old at the time, he travelled to Miami a few days before the stabbing took place “[b]ecause nobody liked [him] in New York,” and because he needed a mini-vacation. He ultimately was going to Tampa to “get stronger” so that “people [would] stop picking on [him].”¹

On the evening of May 18, Yaqubie took a bus from his hotel to Washington Avenue and 16th Street on Miami Beach. As he exited the bus, one of three black men offered to sell drugs and fake identification to him. Although he declined the offer of drugs and initially the offer of fake identification, Yaqubie later returned to purchase fake identification so that he could “get into like the good nightclubs.”

To make this purchase, Yaqubie accompanied one of the men down Washington Avenue where Yaqubie withdrew $60 from an ATM. After waiting almost an hour, Yaqubie and the man were joined by four or five more black men and a “Mexican” and “they” offered to sell identification to him for $50. Yaqubie agreed and purchased what turned out to be Camacho’s (whom Yaqubie referred to as the “Mexican”) expired Virginia driver’s license. According to Yaqubie, almost as soon as this transaction was completed, the black men left with his money and

Page 8

Camacho demanded return of the identification, claiming it to have been merely rented and not sold to Yaqubie. When Yaqubie refused to return the identification, Camacho threatened to “[f___] [Yaqubie] up.”

Yaqubie admitted that at this juncture he was not frightened by Camacho or his threats because he was too busy concentrating on getting into a nightclub:

He said that’s my ID, . . . and I told him I already bought it. He said no, no, like you’re just going to use it to get into the nightclub and then you’re going to give it back to me. And then he started threatening me if I don’t, he’ll [f___] me up, he’ll do this and that. He said he knows those black people, they’re probably a gang and stuff and he will get them on me and stuff. I wasn’t paying attention at first. Mostly I was just focusing on getting to the nearest nightclub. . . .

And although Yaqubie claims that later, while waiting in line to get into a nightclub, he got scared when he noticed Camacho staring at him, Yaqubie did nothing to secure assistance. Rather, Yaqubie left the line and engaged Camacho in conversation. When Yaqubie was unable to convince the older, heavier man to let him keep the identification, Yaqubie decided to lose him:

I walked, I was getting farther away from the club, towards 16th Street and like I really wanted to keep the ID and I asked him how much he wants for it. He said no, I need it, I don’t care how much. I asked him if he can help me find another and he said no, [f___] you, you wasted too much time, you wasted too much of my time.

. . . .

And I basically didn’t want . . . I just lost sixty dollars for nothing so I tried to run for it and like, I tried to lose him.

. . . .

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I went into a dark alley. I didn’t think he would run fast enough considering how old he is and his physique.

Yaqubie was, however, surprised that the significantly older and heavier man caught up with him in the alley where Yaqubie sought to hide. And, when Camacho shouted threats at Yaqubie and grabbed his arm with both hands, Yaqubie “panicked,” his “instincts took over” and he pulled a seven-inch knife from his pocket and began to stab Camacho in the abdomen:

He catches up, and like he started screaming, I’ll [f___] you up, I’ll [f____] you up, in a very loud tone because nobody was around he didn’t held [sic] back his voice. He grabbed my, my right arm, upper arm with both his hands, and like he started pulling very hard and he scared me. I thought I was, he was going to do something on me because like, I don’t know, I just like, I panicked.

. . . .

. . . I thought maybe he was going to kill me for like trying to run off on him.

. . . .

I grew too frightened. I just, I don’t know, like instincts take, took over. I just quickly took the knife . . . [a]nd like, I took three jabs on him . . .[a]round his abdominal.

According to Yaqubie, Camacho then let go of his arm and said, “You want a piece of me? Fine” and threw a book bag he had been carrying at Yaqubie. The book bag “didn’t do much” other than cut Yaqubie’s middle finger “a little.” Then, not seeing a weapon in Camacho’s possession because “[i]t was too dark to

Page 10

tell,” but thinking that Camacho “might have like pulled like some kind of like weapon” because the man had not immediately run away after being stabbed three times in the abdomen, Yaqubie “rushed” Camacho, stabbing him so violently in the chest with the knife that he believed that Camacho was going to die.

Yaqubie then stuck the knife in his pocket and ran. He did not, however, run for help either for himself or for the man he believed he had just stabbed to death. Rather, he hailed a taxi and had it drop him of at a Domino’s pizzeria. Because the pizzeria was closed, he returned to his hotel where he was directed to a nearby restaurant where he went to eat. After a meal, he returned to his room where he went to sleep until a little after noon the following day.

The following day, Yaqubie relaxed. He had a light snack, exercised, took a bus to Lincoln Road and Aventura Mall, returned to his hotel and dressed for clubbing that night. To avoid entanglement with the black men from the night before, he wore a hooded jacket and made sure to take his knife along. Although he was able to get into a club without showing identification, he was rousted by club security for disturbing another patron. He was searched and the knife and Camacho’s expired Virginia driver’s license were found. The police were called, Yaqubie was arrested and he made a voluntarily statement.

Although there were no other witnesses to these events, two women staying at a hotel adjacent to the alleyway where the stabbing occurred advised the police

Page 11

that, while hearing no loud threats coming from the alley at the time of the incident, they both heard a male voice say, “Don’t do that! Don’t do that!” One of the women stated that when she heard the male voice yell, she looked out of her hotel room window to see two men disengage from one another in the alleyway and head in opposite directions. Alarmed, she went into the alley where she found Camacho collapsed on the ground, unconscious and bleeding heavily. No weapons were found on Camacho, in his backpack or anywhere in the alleyway. Camacho died of fatal stab wounds to the heart and the right lung.

According to Yaqubie, these facts establish that he acted in self-defense, thereby negating the State’s ability to prove the ill-will or evil intent essential to a second degree murder charge. We disagree.

As this court on more than one occasion has stated, the purpose of a Rule 3.190(c)(4) motion is to test the legal sufficiency of the charges brought by the State, it is not to require the State to demonstrate that it will secure a conviction at trial. See State v. Arnal, 941 So. 2d 556, 558 (Fla. 3d DCA 2006) (stating that “[t]o avoid dismissal under this rule, the State is not obligated to pre-try its case, only to provide sufficient facts, when viewed in a light most favorable to the State, to show that a reasonable jury could rule in its favor”); State v. Ortiz, 766 So. 2d 1137, 1142 (Fla. 3d DCA 2000) (to counter a Rule 3.190(c)(4) motion to dismiss, the State “need not adduce evidence sufficient to sustain a conviction”). In this

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case, Yaqubie convinced the court below that the State could not demonstrate the ill-will, spite, hatred, or evil intent essential to a second degree murder charge because he was acting in self-defense when he stabbed Camacho. But Yaqubie’s characterization of his actions as defensive is not determinative. To the contrary, the facts are equivocal² and may be characterized as defensive or as spiteful, hateful, or evil and whether Yaqubie was acting in self-defense or as an aggressor out of hatefulness or spite is for a jury, not for the defendant or the court, to decide. See Arnal, 941 So. 2d at 558-59 (confirming that it is not proper on a Rule 3.190(c)(4) motion to determine factual issues, to weigh evidence, or to determine credibility); State v. Stewart, 404 So. 2d 185, 186 (Fla. 5th DCA 1981) (finding that the trial court erred in assuming that the defendant’s version of the victim’s death had to be accepted and in dismissing a second degree murder charge under Rule 3.190(c)(4) for a fatal stabbing where “[t]he type of wound and direction of the blow are sufficient alone to cast considerable doubt on the defendant’s stories concerning an accidental cutting”); State v. Milton, 488 So. 2d 878, 879 (Fla. 1st

Page 13

DCA 1986) (concluding that it was improper for the trial judge to consider the issues of self-defense and premeditation in a (c)(4) motion to dismiss since they were questions for a jury not a judge to decide).

As was aptly stated by the Second District Court of Appeal in State v. Rogers, 386 So. 2d 278, 280 (Fla. 2d DCA 1980), where the trial court similarly resolved the issue of whether the defendant’s actions “evinc[ed] a depraved mind regardless of human life”:

[I]ntent or state of mind is not an issue to be decided on a motion to dismiss under Rule 3.190(c)(4). Instead, it is usually inferred from the circumstances surrounding the defendant’s actions. Since the trier of fact has the opportunity to weigh the evidence and judge the credibility of the witnesses, it should determine intent or state of mind.

See also Arnal, 941 So. 2d at 559 (finding that “[w]hile intent or state of mind may, as the trial court correctly noted, be difficult to establish, it is not, as we have stated `an issue to be decided on a motion to dismiss under Rule 3.190(c)(4).’” (quoting State v. Book, 523 So. 2d 636, 638 (Fla. 3d DCA 1988))).

The motion to dismiss should, therefore, have been denied.

Accordingly, the petition for writ of prohibition is granted and conflict with Velasquez certified. The order granting the motion to dismiss and reducing the second degree murder charge to manslaughter is reversed.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

Courtesy of David Edelstein

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JUSTIN L. KRAUTHEIM, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-1216.

District Court of Appeal of Florida, Second District.

Opinion filed June 11, 2010.

Appeal from the Circuit Court for Hillsborough County, Daniel L. Perry, Judge.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

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

WALLACE, Judge.

Justin L. Krautheim appeals his judgments and sentences in two cases following the revocation of his probation pursuant to his admission to violating a

Page 2

condition of his probation based upon his commission of a new law violation.¹ Mr. Krautheim argues that the circuit court erred in summarily denying his motion to withdraw his plea, filed under Florida Rule of Criminal Procedure 3.170(l), without first appointing conflict-free counsel and without conducting an evidentiary hearing. The State properly concedes error.

In Mr. Krautheim’s motion to withdraw plea, his trial counsel alleged, in pertinent part, as follows:

2. The Defendant has requested the undersigned counsel to file a Motion to Withdraw his Plea. He requests that this motion assert that he did not understand what could happen if he admitted to the VOP, he was confused about his possible sentence and what it might be.

3. The grounds which the defendant wants raised in this motion prohibit the undersigned from acting further in a representative capacity for the Defendant, and furthermore may lead to a situation in which the undersigned counsel will become an adverse witness against the Defendant.

. . . .

9. Based on the above and matters which have transpired in counsel’s representation of the Defendant, there currently exists a conflict between counsel’s duties to zealously represent the Defendant and maintain the attorney-client privilege and her duty of candor to the tribunal, such that her interests are adverse to those of the Defendant to the extent that her independent professional

Page 3

judgment might be materially limited if she were to continue to represent the Defendant.

10. Therefore, continued representation of the Defendant under [the] circumstances of this case would constitute a conflict of interest and/or a violation of the Rules of Professional Conduct.

Counsel requested that she be permitted to withdraw from her representation of Mr. Krautheim and that conflict-free counsel be appointed to represent him. At the hearing on the motion to withdraw, counsel again represented that “he is claiming that he did not understand what could happen if he admitted to the violation of probation and he was confused about his possible sentence and what that might be.” Counsel indicated that she would be an adverse witness, asked for leave to withdraw from the case, and requested that the circuit court appoint conflict-free counsel.

The circuit court found that counsel no longer represented Mr. Krautheim, that the motion failed to allege a basis to withdraw the plea, that the request to withdraw the plea could only be raised in a motion filed under Florida Rule of Criminal Procedure 3.850, that rule 3.170(l) did not apply to admissions to violations of probation, and that the allegations were refuted by the plea colloquy. The court noted as follows:

Again, there is no basis to withdraw the plea. It is obvious that there was a plea colloquy given. He understood—he knew he was in violation. There was a plea colloquy given when he was placed on probation that told him what the minimum, maximum penalties he was facing and including what he faced if he violated.

The court denied the motion to withdraw plea without appointing conflict-free counsel and without arranging for Mr. Krautheim to be present at the hearing.

A motion to withdraw plea is a critical stage of the proceedings at which a defendant is entitled to be present and to have counsel represent him. Garcia v. State,

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846 So. 2d 660, 661 (Fla. 2d DCA 2003); see also Daniel v. State, 865 So. 2d 661, 661 (Fla. 2d DCA 2004) (“[A] motion to withdraw a plea pursuant to rule 3.170(l) is a `critical stage’ in which the defendant is entitled to effective assistance of counsel . . . .” (quoting Brown v. State, 835 So. 2d 402, 403 (Fla. 2d DCA 2003))); Hampton v. State, 848 So. 2d 405, 405 (Fla. 2d DCA 2003) (“A motion to withdraw plea is a critical stage of a criminal proceeding at which an indigent defendant is entitled to court-appointed counsel.”). Thus the circuit court erred when it denied Mr. Krautheim’s motion in his absence.

In addition, once it becomes clear that a defendant and his counsel are in an adversarial relationship with respect to the defendant’s entry of his plea, the defendant is entitled to the appointment of conflict-free counsel to represent him and to assist him with respect to his motion to withdraw plea. White v. State, 15 So. 3d 833, 835 (Fla. 2d DCA 2009) (holding that the defendant was entitled to the appointment of conflict-free counsel to “advise and assist” him with respect to his motion to withdraw plea alleging that trial counsel misled him into entering his plea); Garcia, 846 So. 2d at 661 (“Once it became clear that Garcia and his counsel had adversarial positions concerning what actually happened while counsel was advising Garcia concerning the plea, Garcia was entitled to conflict-free counsel.”). Here, the motion and counsel’s representations at the hearing established that counsel and Mr. Krautheim were in an adversarial relationship concerning Mr. Krautheim’s motion to withdraw plea. Accordingly, Mr. Krautheim was entitled to the appointment of conflict-free counsel, and the circuit court again erred by failing to appoint conflict-free counsel to represent Mr. Krautheim on his motion.

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Further, “[i]f the motion to withdraw plea is facially sufficient, the circuit court must either grant `an evidentiary hearing or accept the defendant’s allegations . . . as true [unless] they are conclusively refuted by the record.’” White, 15 So. 3d at 835 (second alteration in original) (quoting Bayer v. State, 902 So. 2d 353, 354 (Fla. 2d DCA 2005)). Mr. Krautheim’s allegations in his motion raised the issue of the voluntariness of his plea based upon his misunderstanding about his possible sentences. Although counsel was understandably reticent in the motion, a fair reading of the motion’s allegations leave no doubt that Mr. Krautheim’s alleged misunderstanding was connected to trial counsel’s representation of him with regard to the entry of his plea. As noted by the Florida Supreme Court in Sheppard v. State, 17 So. 3d 275, 283 (Fla. 2009) (citing Iaconetti v. State, 869 So. 2d 695, 699 (Fla. 2d DCA 2004)), “misrepresentations or mistaken advice by counsel concerning the length of the sentence may be a basis to allow a defendant to withdraw a plea.”

The circuit court found that Mr. Krautheim’s allegations were conclusively refuted by the plea colloquy. However, the circuit court simply noted that there was a plea colloquy when Mr. Krautheim was placed on probation and that he was advised of the maximum and minimum penalties if he violated. That observation would not take into account any discussions that counsel had with Mr. Krautheim before he entered his admission to violating his probation. So the circuit court could not determine that the allegations of Mr. Krautheim’s motion were conclusively refuted by the record in the absence of any evidence concerning the nature of his alleged misunderstanding.

We further note that the circuit court incorrectly concluded that counsel no longer represented Mr. Krautheim. See Fla. R. Crim. P. 3.111(e)(3) (providing in

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pertinent part that “[t]he attorney of record for a defendant in a criminal proceeding shall not be relieved of any duties, nor be permitted to withdraw . . . until after . . . the time has expired for filing of a notice of appeal, and no notice has been filed”). The circuit court also erroneously concluded that Mr. Krautheim’s claim could only be presented in a rule 3.850 motion. Rule 3.170(l) provides:

A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

Moreover, a defendant may seek relief under rule 3.170(l) with respect to his admission to violating his probation. See Sheppard, 17 So. 3d at 277 (applying rule 3.170(l) to a motion to withdraw plea with respect to the defendant’s admission to violating his community control).

For these reasons, we reverse the order denying Mr. Krautheim’s motion to withdraw plea and we remand for an evidentiary hearing on the motion at which Mr. Krautheim shall be entitled to be represented by conflict-free counsel. See White, 15 So. 3d at 836.

Reversed and remanded for further proceedings.

CASANUEVA, C.J., and VILLANTI, J., Concur.

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

—————

Notes:

—————

Courtesy of David Edelstein

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DENNIS SHELDEN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-5102.

District Court of Appeal of Florida, Second District.

Opinion filed June 11, 2010.

Appeal from the Circuit Court for Manatee County, Debra Johnes Riva, Judge.

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

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

NORTHCUTT, Judge.

A jury convicted Dennis Shelden of shooting within or into a building, a second-degree felony. See § 790.19, Fla. Stat. (2007). But the trial court erred by permitting evidence of Shelden’s statements over defense counsel’s objection that the State had not proved the corpus delicti. Accordingly, we reverse.

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The State presented two witnesses at Shelden’s trial. One was a sheriff’s deputy who testified that he responded to a call about a shooting at Shelden’s home. Inside the home, he saw seven bullet holes in a wall and shell casings on the floor. One or more of the bullets had completely penetrated the home’s outer wall. Outside, the deputy found what he believed to be divots where bullets struck the ground several feet from the house. The other witness, also a sheriff’s deputy, recounted that he received an alert to be on the lookout for Shelden. He located him in a car parked at an area gas station. After the deputy informed Shelden of his constitutional rights, Shelden acknowledged that he had fired a pistol inside his home in an attempt to frighten his wife during an argument.

The deputy was permitted to relate Shelden’s statements notwithstanding defense counsel’s objection that the State had not first proved the corpus delicti. The trial court overruled the objection subject to revisiting the question at a later time. When the State rested its case, defense counsel moved for a judgment of acquittal on the ground that the evidence was legally insufficient to prove that Shelden discharged the firearm willfully or wantonly. After the jury returned a guilty verdict, Shelden’s counsel renewed his motion for a judgment of acquittal and reasserted his corpus delicti argument. The trial court denied the motion and reaffirmed its earlier ruling on the admissibility of Shelden’s statements to the deputy.

It is a longstanding tenet of common law that a defendant’s confession is inadmissible to prove his guilt unless the State separately proves the corpus delicti, i.e., the “body of the crime.” Franqui v. State, 699 So. 2d 1312, 1317 (Fla. 1997) (quoting Black’s Law Dictionary 344 (6th ed. 1990)). In other words, the State is obliged to

Page 3

demonstrate, by evidence other than the defendant’s admission, that the crime was in fact committed.

The State meets its burden to prove the corpus delicti with evidence “(1) that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another,” although not necessarily the defendant. Id. As to the first prong, the State need not demonstrate the commission of the crime by proof beyond a reasonable doubt. But it must submit evidence that at least tends to show each element of the relevant offense. State v. Holzbacher, 948 So. 2d 935, 937 (Fla. 2d DCA 2007). We look, therefore, to the elements of the offense at hand.

The Florida Supreme Court has identified the elements of criminally shooting within or into a building as follows: “that the defendant (1) shot a firearm; (2) at, within, or into a building, occupied or not; and (3) did so `wantonly or maliciously.’” State v. Kettell, 980 So. 2d 1061, 1063 (Fla. 2008) (quoting Fla. Std. Jury Instr. (Crim.) 10.13). Here, the State’s evidence amply demonstrated that a firearm was discharged inside Shelden’s house, thus establishing the first two elements of the corpus delicti.

But, apart from Shelden’s statements to the arresting deputy, the State’s evidence of the third element was wholly lacking. As the supreme court held in Kettell, “the mere shooting into a building does not establish intent under the statute.” Id. at 1067. Beyond the simple fact of the shooting itself, the State offered no proof that it was done wantonly or maliciously.

As defined in the standard jury instruction:

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“Wantonly” means consciously and intentionally, with reckless indifference to consequences and with the knowledge that damage is likely to be done to some person.

“Maliciously” means wrongfully, intentionally, without legal justification or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person.

Kettell, 980 So. 2d at 1067. Here, there was no evidence that anyone was endangered by the shooting, that another’s property was threatened, or that the shooter acted wrongfully or with reckless indifference to consequences. The most that might be said, from the fact that seven shots were fired, is that the gun was discharged intentionally. But, aside from Shelden’s statements, the evidence did not reveal whether anyone other than the shooter was present at the time. Nor was there evidence, for that matter, of whether the shots were fired in a country house or a city dwelling or whether the bullets penetrated a wall to an area outdoors that might be frequented by children or passers-by.

In the absence of evidence tending to establish the “wanton or malicious” element of the crime, the State failed to prove the corpus delicti so as to permit the introduction of Shelden’s statements to the deputy. The trial court should have sustained defense counsel’s objection.

Reversed and remanded for a new trial.

VILLANTI and MORRIS, JJ., Concur.

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

Courtesy of David Edelstein

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ARACIEO CAMBELL, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-2614.

District Court of Appeal of Florida, Fifth District.

Opinion filed June 11, 2010.

Appeal from the Circuit Court for Orange County, F. Rand Wallis, Judge.

James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, C.J..

This is an appeal from the judgment and sentence imposed upon the appellant, Aracieo Cambell, after his conviction by a jury of aggravated assault with a deadly weapon,¹ possession of a firearm by a convicted felon,² and carrying a concealed

Page 2

firearm.³ The appeal most specifically centers upon Mr. Cambell’s conviction of aggravated assault with a firearm. After a thorough review, we affirm the judgment and sentence in all respects. Because of some confusion highlighted by the appellant with respect to the elements of the crime of aggravated assault with a deadly weapon, however, we write to express our position on this matter.

The facts adduced at trial reflect that a law enforcement officer came into contact with Mr. Cambell early one morning when the officer was patrolling in an unmarked police vehicle. The officer noticed six males gathered at a corner. When the officer drove toward the gathering, four of the individuals, including Mr. Cambell, sprinted in the direction of the officer’s vehicle. Mr. Cambell was holding up one hand as if to flag down the vehicle. The officer hit the brakes and could see Mr. Cambell in his headlights. After the officer stopped, Mr. Cambell reached down with his right hand, pulled out a handgun, and pointed it at the officer while hopping or skipping toward him. When Mr. Cambell was about 25 feet from the vehicle, he pointed the firearm at the officer. The officer, while ducking, put the vehicle in reverse and activated his flashing lights. The group scattered when the lights came on. Eventually the officer was able to apprehend Mr. Cambell. Although no shots were fired, the officer testified that he was in fear when Mr. Cambell pointed the gun at him in a threatening manner.

At trial the court instructed the jury without objection on the crime of aggravated assault with a deadly weapon by using Standard Jury Instruction 8.2. That instruction, as it relates to the element of the crime, reads as follows:

Page 3

To prove the crime of Aggravated Assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define assault.

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

4.a. [The assault was made with a deadly weapon].

On appeal Mr. Cambell takes the position that case law, including case law emanating from this court, has added an additional element to the offense. He thus posits that the instruction was fundamentally flawed, and that as a result, a reversal is required. More specifically, Mr. Cambell argues that the case law establishes that the State was required to prove that the accused intended to do physical harm to the victim, in addition to the other elements described above. We conclude, however, that this position is invalid.

Section 784.011(1), Florida Statutes (2008), defines an “assault.” That statute declares that:

An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent. (Emphasis added).

Section 784.021(1), Florida Statutes (2008), builds upon section 784.011(1) in defining an “aggravated assault.” Section 784.021(1) reads as follows:

(1) An “aggravated assault” is an assault:

Page 4

(a) With a deadly weapon without intent to kill; or

(b) With an intent to commit a felony.

Nowhere does either statute require as an element of the crime that the accused had to intend to do physical harm to the victim. The only intent inherent in the statutes is the intention to make a threat to do violence. This, of course, is exactly what the standard instruction for aggravated assault requires, and is exactly what the jury trying Mr. Cambell was advised by the trial court. Courts generally do not have the authority to add elements to a crime that has been put in place statutorily by the legislature. We are simply not authorized to abrogate the power of the legislature in this domain by extending or modifying a criminal statute beyond its express terms. See State v. Burris, 875 So. 2d 408, 413-414 (Fla. 2004); Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).

There are, admittedly, a number of cases that seem to suggest, generally in dicta, that the State is required to prove that the accused intended to physically harm the victim. Mr. Cambell points in particular to Swift v. State, 973 So. 2d 1196 (Fla. 2d DCA 2008), in support of his position. In Swift, the appellant moved at trial for a judgment of acquittal on the basis that there was no evidence that he intentionally or knowingly threatened the victim. Briefly, the victim was behind a vehicle being driven by the accused when the accused began to back up. There was, however, no evidence that the accused knew that the victim was behind him. The Second District Court after enumerating the statutory requirements set forth in section 784.011, Florida Statutes, stated that “[i]n order to establish an aggravated assault, the State must prove that the defendant had a specific intent to do violence to the person of another.” Despite this language, the focus of the appellate court was on whether or not there was evidence

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that Swift intended to threaten the victim, not whether he intended to do violence to him. Since the appellate court concluded that there was no evidence that Mr. Swift knew that the victim was behind his vehicle before he started to back up in the victim’s direction, its holding was that the State failed to prove that Mr. Swift intended his act of backing the car to be a threat to do violence to the victim.

Similarly in Denard v. State, 30 So. 3d 595 (Fla. 5th DCA 2010), this court specifically held that, “In this case, the evidence does not establish that Denard [the accused] had the specific intent to threaten Solitz [the victim].” (Emphasis added). While it might be argued that there is dicta in the opinion that suggests that the State was obliged to prove that the specific intent referenced in the statute was to do violence to the person of another, that language is simply not part of the holding. To be clear, therefore, the view of this court is that there is no additional element of the crime of aggravated assault with a deadly weapon beyond those outlined in the standard jury instruction defining the elements of this crime. The State, therefore, is not required to prove that the accused intended to do violence to another in a prosecution for aggravated assault with a deadly weapon.

AFFIRMED.

PALMER and JACOBUS, JJ., concur.

—————

Notes:

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Courtesy of David Edelstein

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CLIFTON RUSSELL THOMPSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-2456.

District Court of Appeal of Florida, Second District.

Opinion filed June 11, 2010.

Appeal from the Circuit Court for Manatee County, Debra Johnes Riva, Judge.

James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Clifton Thompson attempted to exercise his constitutional right to represent himself in a probation revocation proceeding, but the circuit court forced him to continue with appointed counsel out of a concern that Thompson lacked sufficient facility in legal matters. This was error, and we must reverse the revocation of Thompson’s probation.

Page 2

Thompson was on felony probation after his third conviction for knowingly driving while his license was cancelled, suspended, or revoked. See § 322.34(2)(c), Fla. Stat. (2007). The State filed an affidavit alleging that he violated his probation by committing a new law violation when he once again drove without a valid license. Counsel was appointed to represent Thompson, but he soon became dissatisfied with the attorney’s performance. He began filing pro se motions, including motions to dismiss the attorney.

The circuit court held a hearing to inquire into Thompson’s complaints about his counsel. After questioning Thompson, the court determined that the attorney was providing effective assistance and declined to appoint a replacement. Faced with the prospect of proceeding with the same attorney, Thompson asked to represent himself. The court explained the advantages of legal representation and the disadvantages of proceeding pro se, which Thompson said he understood. He informed the court that he had a college education that included legal studies although he had not attended law school. He wanted the assistance of co-counsel, but he did not want assistance from his current attorney and preferred to represent himself if his current attorney was his only other option.

The court questioned Thompson at some length about legal issues. It then denied Thompson’s request to proceed pro se, expressing concern about his ability to represent himself, especially considering that Thompson faced a possible five-year prison sentence.

But possessing legal skills is not a precondition for exercising the right of self-representation. The Supreme Court has recognized that, so long as the election is

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made knowingly and intelligently, a criminal defendant’s constitutional right to self-representation is unfettered. “The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage.” Faretta v. California, 422 U.S. 806, 834 (1975). The trial court’s explanation of the advantages of counsel and the disadvantages of proceeding pro se are intended merely to establish on the record that the decision is made “with eyes open.” Id. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). Further, the defendant’s “technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” Id. at 836. The Supreme Court later qualified this right in cases involving defendants who are competent enough to stand trial but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Indiana v. Edwards, 128 S. Ct. 2379, 2388 (2008). The record in this case contains nothing to suggest that Thompson fell within this exception to the general rule.

The Florida Supreme Court has likewise been clear about the right of self-representation, holding that “once a court determines that a competent defendant of his or her own free will has `knowingly and intelligently’ waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented.” State v. Bowen, 698 So. 2d 248, 251 (Fla. 1997). This court, too, has pointed out that “a defendant does not need to possess the technical legal knowledge of an attorney before being permitted to proceed pro se.” Fleck v. State, 956 So. 2d 548,

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549 (Fla. 2d DCA 2007) (quoting Hill v. State, 688 So. 2d 901, 905 (Fla. 1996)). The rules of criminal procedure sum it up:

Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself.

Fla. R. Crim. P. 3.111(d)(3).

The State argues that Thompson’s waiver of his right to counsel was not knowingly and intelligently made. But this assertion is not supported by the record, and we note that it was not the circuit court’s reason for denying Thompson’s request. As in Fleck, 956 So. 2d at 550, the court below erred by focusing on whether Thompson was capable of representing himself rather than whether his election to do so was knowingly and intelligently made. Accordingly, we reverse.

Reversed and remanded for further proceedings.

VILLANTI and MORRIS, JJ., Concur.

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

Courtesy of David Edelstein

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