Florida Criminal Law Opinions

James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.

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

BY ORDER OF THE COURT:

Appellant’s motion for rehearing filed April 26, 2010, is granted. The prior opinion dated April 9, 2010, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

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

VILLANTI, Judge.

Fagner Barros-Dias appeals his judgment and sentence for seconddegree murder. He argues that the trial court erred in instructing the jury on the lesserincluded offense of manslaughter because the standard jury instruction given at trial

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improperly added an additional element of “intent to kill” to the crime. Because he did not object at trial, Barros-Dias argues that the manslaughter instruction was fundamentally erroneous. We previously affirmed his conviction based on this court’s decision in Zeigler v. State, 18 So. 3d 1239, 1245-46 (Fla. 2d DCA 2009), but we certified conflict with Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009). The supreme court recently issued an opinion in State v. Montgomery, 35 Fla. L. Weekly S204 (Fla. Apr. 8, 2010) (finding standard jury instruction for manslaughter fundamentally erroneous), and Barros-Dias moved for rehearing based on the supreme court’s holding. We grant rehearing, but only to explain that the supreme court’s opinion does not change the outcome in Barros-Dias’ case because the jury in his case was instructed on both manslaughter by act and manslaughter by culpable negligence. We therefore affirm.

The jury in Barros-Dias’ case was instructed on both second-degree murder and the lesser-included offense of manslaughter. Barros-Dias argues that, as in Montgomery, the manslaughter instruction read to the jury in his case was erroneous because it required the jury to find an intent to kill the victim in order to convict him of manslaughter. Thus, in his view, based on the instructions given by the court the jury was precluded from choosing between second-degree murder and manslaughter and had no option but to convict him of second-degree murder. For the reasons set forth below, we reject this argument.

In Montgomery, the trial court instructed the jury on the lesser-included offense of manslaughter by act. 34 Fla. L. Weekly at D360. The jury was instructed that to prove manslaughter the State had to prove only two things: (1) that the victim

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was dead and (2) that Montgomery intentionally caused her death. ki On appeal to the First District the issue was “whether intent to kill is an element of the crime of manslaughter by act.” Id. (emphasis added). The First District held that intent to kill was not an element of manslaughter by act and, therefore, the trial court had fundamentally erred in the jury instruction. ki The supreme court agreed with the First District. Montgomery, 35 Fla. L. Weekly at S204. The supreme court’s Montgomery opinion specifically stated that although there are three forms of manslaughter (by act, by procurement, or by culpable negligence), its focus in reviewing Montgomery was “the crime of manslaughter by act.” Id. (emphasis added). The court then held that “the crime of manslaughter by act does not require the State to prove that the defendant intended to kill the victim.” ld (emphasis added). It concluded that the standard jury instruction for manslaughter by act was fundamentally erroneous because it improperly required the jury to find that the defendant intended to kill the victim, thereby “impos[ing] a more stringent finding of intent upon manslaughter than upon second-degree murder.” ld at S205-06.

By contrast, in Barros-Dias’ case the court read the following manslaughter instruction:

To prove the crime of manslaughter the State must prove the following two elements beyond a reasonable doubt:

One. Tatiana Barros is dead.

Two. Fagner Barros-Dias intentionally caused the death of Tatiana Barros. Fagner Barros-Dias intentionally procured the death of Tatiana Barros. [Or t]he death of Tatiana Barros was caused by the culpable negligence of Fagner Barros-Dias….

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I will now define culpable negligence for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty without any conscious intent to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care towards others. In order for negligence to be culpable it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life or of the safety of persons exposed to its dangers, or of such an entire want of care as to raise a presumption of a conscious indifference to consequences or which shows wantonness or recklessness or a grossly careless disregard for the safety and the welfare of the public, or such an indifference to the rights of others as to be equivalent to an intentional violation of such rights.

The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily harm….

Unlike in Montgomery, the instruction given by the trial court in this case gave the jury options as to the elements of manslaughter. The jury could find either: (1) that Barros-Dias “intentionally caused the death” of the victim or (2) that the victim’s death “was caused by the culpable negligence” of Barros-Dias. This additional instruction has recently been found sufficient to distinguish this case from Montgomery.

In Singh v. State, 35 Fla. L. Weekly D1232 (Fla. 4th DCA June 2, 2010), the jury was read a manslaughter instruction almost identical to the instruction given in this case. The Fourth District held that the instruction was not erroneous because it gave the jury the option of finding manslaughter by culpable negligence. ki at D1233. Likewise, the First District which issued the initial Montgomery opinion has also held that the manslaughter instruction is not fundamentally erroneous when the jury is

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instructed on manslaughter by culpable negligence. See Salonko v. State, 35 Fla. L. Weekly D376 (Fla. 1st DCA Feb. 12, 2010). The First District explained:

Although the jury found, by its second-degree murder verdict, that Appellant did not intend to kill the victim, based on the instructions given, it could have returned a verdict for the lesser-included offense of manslaughter by culpable negligence while still honoring its finding that there was no intent to kill. Unlike in Montgomery, the jury in the instant case was not directed to choose the greater offense simply because the lesser-included offense would have improperly required a more depraved level of intent. Therefore, Appellant has not shown that fundamental error occurred under this Court’s opinion in Montgomery.

ld at D377; see also Nieves v. State, 22 So. 3d 691, 692 (Fla. 2d DCA 2009) (noting the difference in jury instructions). For the same reason, we conclude that the manslaughter instruction given in Barros-Dias’ case did not constitute error. Judgment and sentence affirmed.

WALLACE and LaROSE, JJ., Concur.

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellee.

ON MOTION TO DISMISSGross, C.J.

The state appeals an order granting Jason Stone’s motion for judgment of acquittal. Stone moves to dismiss the appeal, arguing that the state has no right to appeal a ruling granting a motion for judgment of acquittal after the jury has been sworn, but before a verdict is rendered. We agree with Stone and dismiss the appeal.

Stone was indicted in 2007 for first-degree murder and attempted first-degree murder. At the time he was alleged to have committed these crimes, Stone was on probation, so he was also charged with a probation violation. Stone’s trial on the substantive charges commenced in 2008, but the trial court declared a mistrial. The trial court conducted hearings on Stone’s violations of probation and ultimately revoked his probation. Stone appealed the order revoking his probation. The record on appeal in the probation case includes evidence that the state intended to use in the 2010 murder trial.¹

The jury voir dire in Stone’s 2010 trial on the murder charges commenced on January 27, 2010. The jury was sworn on February 1. The state’s case-in-chief was to start the following day. At some point following the jury being sworn, the state discovered that certain unspecified exhibits needed for trial, which were part of the record on

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appeal in the probation case, were not in the possession of the clerk of the circuit court.

On the morning the state was to begin its case, the prosecutor requested a continuance so he could retrieve some exhibits from the clerk of this court. The state conceded that it had witnesses, including the victim of the attempted murder, present and ready to testify. Over the course of the day, a protracted dialogue between the trial court and the prosecutor ensued. The court wished to start the trial; the prosecutor adamantly refused to begin presenting the state’s case.² The trial court denied the state’s motion to continue. Despite requests and warnings from the court, the prosecutor persisted in his refusal to proceed with even his opening statement. After the court made a final demand that the state call a witness, the prosecutor refused to do so. The trial court announced that the state had rested its case. After the court’s pronouncement, Stone moved for a judgment of acquittal, arguing that the state failed to prove a prima facie case on any of the elements of his crimes. The trial court granted the motion.

“[U]nless expressly provided for by statute, in criminal cases the state is not entitled to appeal adverse judgments and orders.” State v. Creighton, 469 So. 2d 735, 740 (Fla. 1985), receded from on other grounds, Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773, 774 (Fla. 1996). This policy “has deep roots in the common law, for it was generally understood, at least in this country, that the sovereign had no right to appeal an adverse criminal judgment unless expressly authorized by statute to do so.” Arizona v. Manypenny, 451 U.S. 232, 245 (1981). Section 924.07, Florida Statutes (2009), sets forth “strictly limited and carefully crafted exceptions designed to provide appellate review to the state in criminal cases where such is needed as a matter of policy and where it does not offend against constitutional principles.” Creighton, 469 So. 2d at 740. The only mention of a “judgment of acquittal” in the statute is contained in subsection 924.07(1)(j), which provides that “[t]he state may appeal from… [a] ruling granting a motion for judgment of acquittal after a jury verdict.” (Emphasis added).

Section 924.07 is crafted so as not to violate the state and federal constitutional prohibitions against placing a defendant in double jeopardy. See Hudson v. State, 711 So. 2d 244, 246 (Fla. 1st DCA 1998);

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State v. Gaines, 770 So. 2d 1221, 1225 (Fla. 2000) (observing that the Rules of Appellate Procedure take into consideration “the double jeopardy implications that would arise if an appeal were authorized” in certain circumstances). The practical reason for construing the statute in this way is that it would be nonsensical to allow the state to appeal a ruling terminating a prosecution where retrial of a defendant would violate the double jeopardy clause. See Amend. V, U.S. Const.; Art I, § 9, Fla. Const. In Hudson, the first district explained why the state’s ability to appeal an order granting a judgment of acquittal after a jury verdict does not offend double jeopardy principles:

In granting a motion for judgment of acquittal, the trial judge makes a factual determination “at the close of the evidence for the state or at the close of all the evidence in the cause… [that] the evidence is insufficient to warrant a conviction.” Fla. R. Crim. P. 3.380(a) (1996). When an appeal is taken from a judgment of acquittal that comes after the jury has determined the facts, no question of double jeopardy arises. If the state prevails on an appeal from a post-verdict judgment of acquittal, the jury’s guilty verdict is reinstated, the trial judge’s contrary determination is set at naught, and the defendant’s position after the appeal is the same as it was before the trial judge granted the motion for judgment of acquittal. No retrial is necessary.

711 So. 2d at 246 (alteration in original) (some citations omitted).

Where a judge grants a defendant’s motion for judgment of acquittal at the close of the state’s case, before a jury verdict, there are different constitutional implications. “[T]he Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict.” Smith v. Massachusetts, 543 U.S. 462, 467 (2005) (citations omitted). A trial court’s order meets the definition an “acquittal” for double jeopardy purposes if it “actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. at 468 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977)). In this context, “what matters is that” the judge “evaluated the [] evidence and determined that it was legally insufficient to sustain a conviction.” Id. at 469 (quoting Martin Linen, 430 U.S. at 572). Conversely, a trial court’s order terminating a prosecution is not an acquittal if it is entered “on a basis unrelated to factual guilt or innocence.” United States v. Scott, 437 U.S. 82, 98-99 (1978) (holding that the government may appeal trial court’s dismissal of count in indictment because of prejudice

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caused by pre-indictment delay without violating double jeopardy principles). The United States Supreme Court has declared that if an acquittal has occurred, double jeopardy bars a retrial even if the acquittal was entered because of an error of law by the trial court. In Arizona v. Rumsey, 467 U.S. 203, 211 (1984), the Supreme Court explained:

In making its findings, the trial court relied on a misconstruction of the statute defining the pecuniary gain aggravating circumstance. Reliance on an error of law, however, does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits. “[T]he fact that ‘the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles’… affects the accuracy of that determination, but it does not alter its essential character.” United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197, 57 L. Ed. 2d 65 [, 79] (1978) (quoting id., at 106, 98 S.Ct., at 2201 [, 57 L. Ed. 2d, at 83-84] (Brennan, J., dissenting)). Thus, this Court’s cases hold that an acquittal on the merits bars retrial even if based on legal error.

In this case, jeopardy attached when the jury was “impaneled and sworn.” Gaines, 770 So. 2d at 1225; Crist v. Bretz, 437 U.S. 28 (1978). At that point, the trial judge had the general power to control “the mode and order of the interrogation of witnesses and the presentation of evidence.” § 90.612(1), Fla. Stat. (2009). The prosecutor chose not to make an opening statement, call any witnesses, or offer any exhibits in evidence. The trial judge deemed that the state had rested its case, that the trial had reached “the close of the evidence for the state.” Fla. R. Crim. P. 3.380(a). Stone moved for a judgment of acquittal under rule 3.380(a), arguing that the “evidence” was “insufficient to warrant a conviction.” The state had presented no evidence. The trial judge granted the motion. The court’s ruling on the defense motion was an “acquittal” within the meaning of subsection 924.07(j); consistent with double jeopardy jurisprudence, it was the ruling of a judge that “actually represent[ed] a resolution, correct or not, of some or all of the factual elements of the offense charged.” Smith, 543 U.S. at 468 (quoting Martin Linen, 430 U.S. at 571). Because it was not a “ruling granting a motion for judgment of acquittal after a jury verdict,” the ruling was not appealable under section 924.07. See Hudson, 711 So. 2d at 247.

In response to Stone’s motion to dismiss, the state argues that the circuit court’s order is tantamount to a dismissal of his indictment since

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there was no evidence for the trial court to evaluate, preventing the court from actually making a decision on the merits. If deemed a “dismissal” of the indictment, then the order is appealable under subsection 924.07(1)(a). The state relies on State v. Young, 936 So. 2d 725 (Fla. 1st DCA 2006), and United States v. Scott to support its argument. However, Young and Scott are inapposite because they involve the termination of prosecutions for reasons other than the insufficiency of the evidence.

In Young, the defendant moved to dismiss his charge of resisting an officer with violence after the state rested, arguing that the information did not state the officer’s specific duty at the time the offense occurred. 936 So. 2d at 726. The trial court granted the motion and entered a “judgment of acquittal” on the charge, even though the defendant had actually moved to dismiss based on a defect in the information. Id. at 725-26. The first district determined that it had jurisdiction to hear the state’s appeal under section 924.07(1)(a), holding that the court’s order was “tantamount to a dismissal, [because] it was premised on the trial court’s misperception that the [s]tate had failed to set forth a legally sufficient charge [in the information], not on the theory that the information was adequate, but, on the merits, the [s]tate failed to establish a prima facie case” for the crime. Id. at 726 (emphasis in original). Since the trial court’s order was not a “decision on the merits,” the first district relied on Scott to conclude that “double jeopardy principles” were inapplicable. Id. at 728-29. In Scott, the Supreme Court held that a defendant who deliberately chooses to terminate proceedings against him on a basis unrelated to his factual guilt or innocence does not suffer injury under the double jeopardy clause if the government is permitted to appeal a trial court’s ruling rendered in favor of the defendant. 437 U.S. at 98-99.

Young and Scott do not control this case. The trial judge’s order was not a “dismissal” appealable by the state, such as those arising under Florida Rule of Criminal Procedure 3.190. The trial court’s order was a decision on the merits of the factual elements of the charges, based on the failure of the state to present any evidence. This case does not involve a non-merits ruling like the one at issue in Young, which concerned the defectiveness of the charging document, or in Scott, which was based on prejudice to the defendant caused by preindictment delay.

The legal and practical position of the prosecutor in this case is similar to that of the prosecutor in Downum v. United States, 372 U.S. 734 (1963). There, a jury was selected and sworn. Id. at 735. The prosecutor learned that his key witness on some of the charges was not present, so he asked that the jury be discharged. Id. The judge

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discharged the jury over the defendant’s objection. Id. Two days later another jury was sworn and the defendant was convicted. Id. The Supreme Court reversed the conviction holding that the retrial of the defendant violated the double jeopardy clause. Id.. at 737-38, 83 S. Ct. at 1035. In so ruling, the Supreme Court commented on the dilemma of a prosecutor who finds out that he has witness or evidence problems after a jury is sworn, comments that are applicable to this case:

The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance. While their absence might have justified a continuance of the case in view of the fact that they were under bond to appear at that time and place, the question presented here is entirely different from that involved in the exercise of the sound discretion of the trial court in granting a continuance in furtherance of justice. The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict. This does not take the case out of the rule with reference to former jeopardy. There is no difference in principle between a discovery by the district attorney immediately after the jury was impaneled that his evidence was insufficient and a discovery after he had called some or all of his witnesses.

372 U.S. at 737-38 (quoting Cornero v. United States, 48 F.2d 69, 71 (9th Cir. 1931)).

We also distinguish this case from a line of Illinois decisions where the government was unable to proceed with cases and judges denied the prosecution’s motions to continue or dismiss the charges. See People v. Deems, 410 N.E.2d 8 (Ill. 1980); People v. Edwards, 422 N.E.2d 1117 (Ill. App. 1981); People v. Verstat, 444 N.E.2d 1374 (Ill. App. 1983); People v. Harris, 583 N.E.2d 1164 (Ill. App. 1991). In these cases, after the denial of the prosecution’s motions, defendants typically waived jury trial and the judges proceeded to swear in a witness so that jeopardy attached and the cases could be dismissed.³ The Illinois cases involve judges who manipulated the attachment of jeopardy where the government had no

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intention or ability to proceed with a case. See Deems, 410 N.E.2d at 11 (court observed that “‘trial’” was “a sham, an artifice employed by the trial judge to achieve the result of a dismissal with prejudice for want of prosecution”). Part of the ruling in those cases was based on the idea that the defendant was never placed at risk of being convicted. Id. at 10. In this case, there was no such judicial manipulation of the attachment of jeopardy, no design to “dress a dismissal without prejudice in a raiment more protective of a possible double jeopardy defense.” Gonzalez v. Justices Mun. Court of Boston, 382 F.3d 1, 10 (1st Cir. 2004), cert. granted, judgment vacated, 544 U.S. 918, adhered to, 420 F.3d 5 (1st Cir. 2005); but see Goolsby v. Hutto, 691 F.2d 199 (4th Cir. 1982). The state’s problems with the case arose after the jury had been selected and sworn.

In sum, we hold that the circuit court’s ruling granting a motion for judgment of acquittal before a jury verdict is not one that the state may appeal under section 924.07. The court’s ruling was based on the state’s failure to present evidence after being given the opportunity to do so, and not on a defect in the indictment or other ground unrelated to factual guilt or innocence. The ruling granted a motion for judgment of acquittal before a jury verdict; it was not an appealable order dismissing an indictment. To allow the state to appeal the judgment of acquittal and reverse the ruling for retrial would be to put Stone twice in jeopardy for the same crimes. Accordingly, the state’s appeal is dismissed.

Dismissed.

Stevenson and Warner, JJ., concur.

* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Lebow, Judge; L.T.

Not final until disposition of timely filed motion for rehearing.

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^1. Stone’s appeal of the order revoking his probation is currently pending before this court in case number 4D09-2434.

^2.The limited record reflects neither why the prosecutor was unable to start at least with an opening statement, nor why the trial judge was insistent that the trial begin on February 2.

^3.Unlike Florida, some types of prosecutors in Illinois need the court’s permission to dismiss charges. See People v. Verstat, 444 N.E.2d 1374, 1384-85 (Ill. App. 1983). Also unlike Florida, it appears that a criminal defendant in Illinois may waive a jury trial without the consent of the state. See Fla. R. Crim. P. 3.260.
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James Owens, Belle Glade, pro se.

No appearance required for appellee.

Per Curiam.

The pro se appellant, James Owens, challenges the post-conviction court’s order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Owens claims entitlement to credit for all of the time he spent in prison in two separate cases, after violating his probation in one of the cases. We affirm, but for reasons other than those given in the State’s response below, which was adopted by the trial court as the basis for denial.

On February 28, 2000, in case 99-016992CF10A (case 1), Owens entered a guilty plea to possession of cocaine and resisting/obstructing without violence. On February 29, 2000, in case 99-023041CF10A (case 2), Owens entered a guilty plea to delivery of cocaine. Owens was sentenced in both cases on the latter date. In case 1, the trial court sentenced Owens to five years in prison with 119 days of credit for time served. In case 2, Owens was sentenced to two years in prison with 60 days of credit, followed by five years of probation, “consecutive” to case 1. The sentencing order in case 2 states that the “Total Sentence” is “7 yrs FSP followed by 5 yrs PROB”.

After Owens served his prison sentences in both cases, he violated his probation. On May 25, 2007, the court revoked Owens’ probation in a final violation of probation hearing and sentenced him to 120 months in prison with 158 days of credit for time served, plus credit for all time previously served in prison in case 2.

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In October of 2008, Owens filed his motion to correct illegal sentence, arguing that because his two cases were disposed of at the same proceeding and with the same scoresheet, he is entitled to credit for the time served in prison in both cases, upon resentencing for violation of probation in case 2. The trial court denied the motion based on the reasoning set forth in the State’s Response.

The cases cited by the State below, however, White v. State, 940 So. 2d 1165 (Fla. 2d DCA 2006), and Hawks v. State, 885 So. 2d 1020, 1022 (Fla. 5th DCA 2004), are distinguishable. In Hawks, the defendant was convicted and sentenced in two separate cases, to resisting an officer with violence (case 1) and to possession of more than twenty grams of cannabis (case 2). 885 So. 2d at 1021. He was sentenced to concurrent terms of one year in jail and was given credit for 26 days time served. Id. On appeal, he argued entitlement to additional credit for the time he spent in jail on an unrelated murder charge. Id. In concluding that Hawks was not entitled to this additional jail time credit, the court noted: “Generally a defendant is only entitled to credit against each sentence for the time spent in jail for the charge which led to that sentence.” Id. at 1022. Applying the same principle, the White court held that the defendant in that case was entitled to credit against each sentence he received for time spent in jail on the charge leading to the sentence. 940 So. 2d at 1165. The instant case does not concern such an application of jail credit.

On appeal, Owens cites to Tripp v. State, 622 So. 2d 941 (Fla. 1993), for the proposition that if a trial court imposes a term of probation on one offense, consecutive to a sentence of incarceration on another offense, credit for time served on first offense must be awarded on the sentence imposed after revocation of probation on the second offense. Indeed, Tripp holds that when separate offenses are sentenced together on the same scoresheet, they “must continue to be treated in relation to each other, even after a portion of the sentence has been violated.” Id. at 942.

As the State advised in its response to this court, however, “[i]t appears the crimes in question were committed in 1999 as the cases were filed that year. Appellant has not alleged otherwise.” (emphasis added.) The State further notes that the Criminal Punishment Code (CPC), which became effective on October 1, 1998, see ch. 97-194 §§ 1-2 at 3674, Laws of Fla., repealed the sentencing guidelines. See Jaimes v. State, 19 So. 3d 347, 349 n.1 (Fla. 2d DCA 2009). In Moore v. State, 882 So. 2d 977 (Fla. 2004), the supreme court held that Tripp does not apply

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to the CPC, which is effective for offenses committed on or after October 1, 1998. The court

emphasized that the concerns previously relevant to [its] analysis in deciding Tripp and its progeny under the sentencing guidelines, specifically, to avoid the imposition of prison time in excess of that mandated by the sentencing guidelines in circumstances where probation on one or more counts follows prison time on one or more counts, are no longer present in CPC sentencing. Notwithstanding the use of a single scoresheet at the original sentencing proceeding, because the courts are no longer limited to a sentencing range in CPC sentencing and therefore do not treat separate offenses as an interrelated unit at the original sentencing, there is no justification for treating separate offenses as an interrelated unit after revocation of probation. Therefore, unlike sentencing under the guidelines, in the context of CPC sentencing [the supreme court] concluded that Tripp credit is not necessary to effectuate the intent of the CPC.

State v. Matthews, 891 So. 2d 479, 488 (Fla. 2004) (citing Moore, 882 So.2d at 985).

As appellant has not alleged that the subject offenses were committed prior to the enactment of the CPC or refuted the State’s contention that they were committed after the enactment of the CPC he fails to demonstrate entitlement to relief.

Affirmed.

Warner, Polen and Stevenson, JJ., concur.

* * *Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge.

Not final until disposition of timely filed motion for rehearing.

John Jacob Chamberlain, Century, pro se.

Bill McCollum, Attorney General, Tallahassee, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, for appellee.

Per Curiam.

We withdraw our opinion dated March 3, 2010 and substitute the following in its place:

John Jacob Chamberlain, the defendant below, appeals two orders summarily denying his amended motion for post-conviction relief.

By way of background, the defendant originally filed his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.851 because he was sentenced to death. Based on newly discovered evidence, the trial court subsequently mitigated the defendant’s sentence from death to life. Both the State and the defendant agreed and stipulated that, going forward, the defendant would proceed under Florida Rule of Criminal Procedure 3.850.

The defendant asserts seven claims on appeal to this Court. First, he argues that the trial court erred in denying him an evidentiary hearing on the basis of newly discovered evidence of alleged juror misconduct and erred in denying his motion to interview the jurors (“Issue I”). Second, the defendant argues that the trial court erred in summarily denying four separate claims of ineffective assistance of counsel: (a) the alleged failure to subpoena Richard Button, and the failure to obtain information regarding alleged witness collusion and false testimony (“Issue II-A”); (b) the failure to object to alleged improper, irrelevant, and misleading testimony or comments which occurred over the course of the trial (“Issue II-B”); (c) the mishandling of Donna Garrett’s alleged faulty identification of the defendant and subsequent testimony (“Issue II-C”);

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and (d) the alleged failure to move for change of venue and the alleged failure to question panel members regarding their knowledge of the case (“Issue II-D”). Third, the defendant argues that the trial court erred in denying his claim that his Sixth Amendment rights were violated due to his trial counsel’s alleged conflict of interest (“Issue III”). Finally, the defendant argues that the trial court misapplied Florida Rule of Criminal Procedure 3.852 when reviewing claimed exemptions to the disclosure of public records asserted by law enforcement (“Issue IV”).

A defendant is entitled to an evidentiary hearing on a post-conviction motion unless: (1) the motion, files, and records in the case conclusively show that the defendant is not entitled to any relief; or (2) the motion or a particular claim is legally insufficient. Williamson v. State, 994 So. 2d 1000, 1006 (Fla. 2008) (quoting Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000)); Terrell v. State, 9 So. 3d 1284, 1288 (Fla. 4th DCA 2009) (citing Phillips v. State, 894 So. 2d 28, 37 (Fla. 2004)). The trial court may summarily deny a rule 3.850 motion when the motion lacks sufficient factual allegations, or where alleged facts do not render the judgment vulnerable to collateral attack. Robinson v. State, 913 So. 2d 514, 520 (Fla. 2005). “If the allegations are facially sufficient, the trial court ‘must either conduct an evidentiary hearing or attach to its order excerpts from the record that conclusively disprove the appellant’s claim.’” Ajuste v. State, 12 So. 3d 305, 306 (Fla. 4th DCA 2009) (citation omitted).

After a thorough review of the defendant’s claims, the orders denying the defendant’s motion for post-conviction relief, as well as the attachments to those orders referenced by the trial court, we conclude that the trial court’s summary denial of the defendant’s claims was appropriate.

Affirmed.

Stevenson, Taylor and Hazouri, JJ., concur.

* * *Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge.

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Not final until disposition of timely filed motion for rehearing.

James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, C.J.

The appellant, Timothy David Rogers, posits that the trial court erred by allowing a state witness to testify by satellite from China at the trial of Mr. Rogers in Lake County, Florida. His theory is that by permitting the testimony from outside of the country, his constitutional right to confront this important witness against him was violated. More specifically, he asserts that because of the lack of an extradition treaty

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between the United States and China, there was no guaranty of the enforcement of the witness’s oath because of the extraterritorial nature of the testimony. Under the facts of this case, however, we conclude that the confrontation rights of the appellant were protected, and thus we affirm.

Mr. Rogers was convicted at a jury trial of burglary of a structure, grand theft, criminal mischief causing greater than two hundred dollars’ damage, and resisting an officer without violence. During the course of the trial the court, over objection, allowed a former officer of the Leesburg Police Department, who was the arresting officer and a material witness to the crimes charged, to testify via satellite feed from China. The defense, objecting on Confrontation Clause grounds, contended that the oath of the witness to tell the truth is only effective if the witness can be subject to prosecution for perjury if he or she makes a knowingly false statement. Relying on the cases of Harrell v. State, 709 So. 2d 1364 (Fla.), cert. denied, 525 U.S. 903 (Fla. 1998), and Crawford v. Washington, 541 U.S. 36 (2004), Mr. Rogers postulated that “[t]o ensure that the possibility of perjury is not an empty threat for those witnesses that testify from outside the United States, it must be established that there exists an extradition treaty between the witness’s country and the United States, and that such treaty permits extradition for the crime of perjury.” The defense then argued that because there is no extradition treaty between China and the United States, the witness was precluded from testifying.

The State, however, produced information from the Department of Justice, Office of International Affairs that confirmed that there was no extradition treaty between China and the United States, but which went on to indicate that if a warrant is issued for an American citizen’s arrest, and that citizen has fled to or is living in China, the United

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States Government will revoke the passport of that citizen and request the Chinese government to deport him or her and to allow that person to be taken into the custody of agents for the United States or of the jurisdiction from which the warrant is issued. According to the Department of Justice, this procedure has been successfully used in the past to enforce warrants issued in the United States for its citizens living in China. Moreover, the United States does have an extradition treaty in place for Hong Kong under which U.S. citizens living in or near Hong Kong, as does the witness in the instant case, can be arrested on a U.S. warrant upon entering that locus.

The trial court found that the arresting officer resided in China with his wife, a Chinese national, and that he was a material and necessary witness in order “to prevent a failure of justice.” Further, the court found that because there was an effective procedure in place to enforce a U.S. warrant for the crime of perjury for a U.S. citizen residing in China, the State’s motion to permit trial testimony via satellite feed was granted. After he was found guilty and sentenced, Mr. Rogers filed this appeal.

The Sixth Amendment of the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him…” See Harrell. Likewise, the Florida Constitution sets forth: “In all criminal prosecutions the accused… shall have the right… to confront at trial adverse witnesses…” Art. I § 16(a), Florida Constitution.

The Confrontation Clause, however, is not absolute in terms of a requirement for physical confrontation, and is subject to exceptions where “considerations of public policy and the necessities of the case” require it. Maryland v. Craig, 497 U.S. 836, 849 (1990); see also Harrell. For example, Florida allows the introduction of an allegedly

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abused child’s videotaped testimony in a criminal trial because the interest of the State and public policy considerations reflect that it is appropriate to spare child victims of sexual crimes the further trauma of in court testimony face-to-face with the accused. See Glendening v. State, 536 So. 2d 212 (Fla. 1988), cert. denied, 492 U.S. 907 (Fla. 1989); see also § 92.53, Fla. Stat. (2009). Likewise, Florida has provided by statute that a child or a person with “mental retardation” who may suffer harm by testifying in open court may testify by closed circuit television. See § 92.54, Fla. Stat. (2009). Nevertheless, these exceptions are only permitted when the reliability of the testimony is otherwise assured. Craig, 497 U.S. at 350.

Harrell is the principal appellate determination informing our decision on the reliability of the testimony on the issue now before us. There, in a case involving the testimony via satellite from Argentina of foreign tourists who were the victims of a crime committed in Florida, the Florida Supreme Court noted that the purposes underpinning the Confrontation Clause are: (1) to impress the witness of the seriousness of the matter and to protect against a lie by the possible imposition of the penalties associated with perjury; (2) to allow the witness to be subject to cross examination; and (3) to allow the jury to have the opportunity to observe the demeanor of the witness as an aid to assessing credibility. Harrell, 709 So. 2d at 1368; see also Craig, 497 U.S. at 851. The court then concluded that the satellite procedure can only be approved as an exception to the Confrontation Clause if it is justified on a case-specific finding based on important state interests, public policies, or necessities of the case, and provided that the three purposes of confrontation–oath, cross-examination and observation of witness demeanor–are satisfied. Harrell, 709 So. 2d at 1369.

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In the present case the trial court specifically found that the State interest and necessities of the case warranted the use of the satellite procedure, and we entirely agree with this finding. The State’s prosecution of Mr. Rogers could not have gone forward without some acceptable procedure being adopted other than a face-to-face confrontation. We therefore turn to whether the three purposes of confrontation were met by use of the satellite transmitted audio and video testimony in this specific case.

The methodology utilized allowed the witness to be fully cross examined by the defense, and the jury was fully able to observe the demeanor of the witness as he testified. Thus we are left only with determining whether the oath element, backed up by the possibility of the imposition of the penalties of perjury, was met. Indeed, this is the primary thrust of the argument advanced by Mr. Rogers.

We agree with the trial judge that the oath element is satisfied. Here, the witness was a United States citizen who intended to return to live in the United States once his wife, a Chinese national, got her visa. If the State decided to charge him with perjury, there would be consequences upon his return. In addition, the State offered sufficient evidence of the procedures in place for citizens of the United States who have been charged with crimes in this country, including the crime of perjury, but who are living in China. We conclude, therefore, that the trial court did not err in finding that the satellite procedure would ensure that the oath required by the Confrontation Clause would be effective because the State established that the law enforcement officer would be subject to prosecution for perjury upon his making of a knowingly false statement. Accordingly, we affirm the judgment and sentence.

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AFFIRMED.

PALMER and COHEN, JJ., concur.

Rafael Hudson, Bushnell, pro se.

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

GRIFFIN, J.

Rafael Hudson ["Hudson"], pro se, appeals the trial court’s order summarily denying his motion for return of property. He argues that the trial court erred in denying his motion because the seizing agency failed to file a timely forfeiture complaint in accordance with section 932.704(4), Florida Statutes.

On March 23, 2007, the Apopka Police Department ["APD"] arrested Hudson on charges of trafficking in cocaine, possession of a firearm by a convicted felon, and possession and/or use of narcotic equipment. APD seized $21,430.00 in U.S. currency which, according to the charging affidavit, included “money supplied by the City of

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Apopka as part of th[e] police investigation.” (APD Case No. 2007-011864). On May 9, 2007, the State charged Hudson with one count of trafficking in 28 grams or more of cocaine, and one count of possession of a firearm by a convicted felon. Thereafter, on November 16, 2007, Hudson entered pleas of nolo contendere to trafficking in cocaine and possession of a firearm by a convicted felon. The trial court sentenced Hudson as a habitual felony offender to concurrent sentences of 120 months in the Department of Corrections, with credit for 206 days of time served. He unsuccessfully appealed.

Hudson then filed a motion seeking the return of the $21,430.00 in U.S. currency and three IDs that were seized on March 23, 2007. Hudson alleged that the State “ha[d] not acted on the matter about the property seized….” The trial court directed APD to file a response to Hudson’s motion.

In its response, APD relied on forfeiture as the reason to deny the motion. The entire response consisted of the following:

1. Attached hereto is the Complaint in forfeiture seeking forfeiture of the property sought by Defendant.

2. Pursuant to Florida law, the Defendant is not entitled to a return of the property.

The attached forfeiture complaint simply says:

1. This is an action in forfeiture. The Court has jurisdiction pursuant to Florida Statute 932.704, as the crimes committed and property seized were in Orange County, Florida.

2. That on or about April 27, 2007, Rafael Deshawn Hudson did engage in the criminal act of drug trafficking and the proceeds for which the City seeks forfeiture were $21,430.00 and $3,085.00 in U.S. currency. The crime and property seized were in the City of Apopka, Florida, and seized by the City Police Department. Said property was used in violation of the Florida Constitutional Forfeiture Act. Attached hereto

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are the official police and court records and affidavit supporting this Complaint.

The complaint is not dated and does not contain a filing stamp or a certificate of service. With two exceptions, the materials attached to this complaint pertain to Hudson’s arrest on April 27, 2007, during which APD seized $3,085.00 in cash. (APD Case No. 2007-016834). The first exception is a motion to suppress, which pertains to the March 23, 2007, arrest but which bears a handwritten reference to the case number for the April 27, 2007 arrest. The second exception is a 2008 APD incident report that does not appear to pertain to Hudson at all.¹

Hudson reacted to APD’s response by filing an “amended motion to reject the response submitted on behalf of APD.” In the motion, Hudson asserted in part: “Despite the allegations made in the Response, the property was not the fruit of criminal activity and the property was not being held as evidence.”

On July 6, 2009, the trial court entered an order denying Hudson’s motion, giving as its reason that “[t]he City of Apopka has filed a forfeiture complaint.” Hudson contends that the trial court erred by summarily denying his motion for return of property because APD failed to file a timely forfeiture complaint in accordance with section 932.704(4), Florida Statutes.

Section 932.704, Florida Statutes (2007), entitled “Forfeiture proceedings” provides in part: “(4) The seizing agency shall promptly proceed against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or

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the offense occurred.” Under section 932.701(2)(c), Florida Statutes (2007), the term “Promptly proceed” is defined as follows: “‘Promptly proceed’ means to file the complaint within 45 days after seizure.” Furthermore, in DeGregorio v. Balkwill, 853 So. 2d 371, 374 (Fla. 2003), the Florida Supreme Court said:

Because the statute here provides for the deprivation of a property right, its procedural requirements cannot be regarded as immaterial or a matter of mere convenience. We hold that the requirement in section 932.704(4) to “promptly proceed” with a forfeiture action is mandatory, and that under section 932.701(2)(c), “promptly proceed” means what it says: “to file the complaint within 45 days after seizure.”

In light of sections 932.704(4) and 932.701(2)(c), and DeGregorio, APD had to file its forfeiture complaint regarding the $21,430.00 in U.S. currency and the three IDs within forty-five days after seizure. Since APD seized the currency and IDs on March 23, 2007, it had until May 7, 2007, to file the forfeiture complaint. The problem here is that the forfeiture complaint that APD attached to its response to Hudson’s motion, is not dated and does not contain a filing stamp or a certificate of service. From the face of the complaint, or indeed from anything else in the record, there is no way of ascertaining when or even if APD filed it. Given the state of the record, the trial court erred by denying Hudson’s motion for return of property based on the State’s filing of a forfeiture complaint.² On remand, APD must establish on the record that it timely filed its forfeiture complaint.

REVERSED and REMANDED.

ORFINGER and COHEN, JJ., concur.

——–

^1. One of the attached items is a final disposition report form, which indicates that the case associated with the April 27, 2007, arrest was dismissed by the State on November 16, 2007. The plea that Hudson entered into on November 16, 2007, with respect to the case associated with the March 23, 2007, includes: “nolle prosse 07-CF 6330…” [the April 27, 2007, case].

^2. On appeal, the State does not defend the trial court’s order; rather, the State contends, for the first time, that Hudson’s motion was “facially insufficient”.
——–

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Mark F. Carpanini and Angela J. Cowden, Judges.

Terald Redding, pro se.

WALLACE, Judge.

Terald Redding seeks review of the postconviction court’s order summarily denying his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm without comment the postconviction court’s order on all of the claims asserted except claim three. With regard to the postconviction

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court’s summary denial of Mr. Redding’s third claim ineffective assistance of counsel for failing to object to the forcible-felony exception to the jury instruction on selfdefense we reverse and remand for further proceedings.

In November 2007, Mr. Redding was convicted by a jury of attempted second-degree murder. Mr. Redding was sentenced to fifty years’ imprisonment as a habitual felony offender (HFO) with thirty years as a prison release reoffender (PRR). The judgment and sentence were affirmed on direct appeal. Redding v. State, 994 So. 2d 313 (Fla. 2d DCA 2008) (table decision). Mr. Redding timely filed the current motion on December 8, 2008. The postconviction court subsequently ordered the State to respond. After reviewing the State’s response and its attached record documents, the postconviction court summarily denied Mr. Redding’s motion.

In claim three of his motion, Mr. Redding claimed that his trial counsel was ineffective for failing to object to the giving of the forcible-felony exception to selfdefense when he was only charged with one offense. He contended that the instruction negated his theory of self-defense because he was not engaged in an independent forcible felony. Mr. Redding alleged that if counsel had objected, there is a strong probability that the outcome of the trial would have been different.

The forcible-felony exception provides that self-defense is not available as a justification if the defendant “[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony.” § 776.041, Fla. Stat. (2009). An instruction on the forcible-felony exception should not be given “unless the defendant is charged with an independent forcible felony, in addition to the offense for which he claims self-defense.” Wilson v. State, 944 So. 2d 1244, 1245 (Fla. 2d DCA 2006) (quoting Smith v. State, 933

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So. 2d 1275, 1276 (Fla. 2d DCA 2006)); see also Martinez v. State, 981 So. 2d 449, 454 (Fla. 2008). When the instruction is read in the absence of a charge of an independent forcible felony, it essentially negates the defendant’s theory of selfdefense. See Martinez, 981 So. 2d at 453 (“This circular logic would most probably confuse jurors because the apparent result is that the instruction precludes a finding of self-defense and amounts to a directed verdict on the affirmative defense.”). Thus, “it is error for a trial court to read the forcible-felony instruction to the jury where the defendant is not charged with an independent forcible felony.” Id. at 457.

In its order denying Mr. Redding’s claim, the postconviction court simply adopted the State’s response. Although the State attached portions of the trial transcript to its response, the record does not conclusively refute Mr. Redding’s facially sufficient claim of ineffective assistance of counsel. In its response, the State concedes that the trial court erred in reading the forcible-felony instruction to the jury. But the State asserts that it was a reasonable trial strategy for counsel to fail to object to the instruction “because she incorporated it into her closing [argument] and used it as justification for her client’s actions.” We disagree.

Because the reading of the forcible-felony exception in the absence of an independent forcible felony negates a defendant’s claim of self-defense, it is not a reasonable trial tactic or strategy to fail to object to the erroneous reading of the instruction. Sipple v. State, 972 So. 2d 912, 914 (Fla. 5th DCA 2007) (holding that trial counsel’s performance was deficient where he failed to object to the giving of the forcible-felony instruction or to ask that the offensive part be deleted). Because the postconviction court merely adopted the State’s response in denying claim three and the

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State’s response did not conclusively refute the claim, we must reverse the court’s summary denial of claim three. See Bouie v. State, 27 So. 3d 88, 89 (Fla. 1st DCA 2009) (reversing the summary denial of a facially sufficient claim that counsel was ineffective for failing to object to the erroneous reading of the forcible-felony exception where the claim was not refuted by the record).

Accordingly, we reverse the denial of Mr. Redding’s claim that counsel was ineffective for failing to object to the forcible-felony instruction and remand for the postconviction court either to attach specific portions of the record refuting Mr. Redding’s allegations in claim three or to conduct an evidentiary hearing. In all other respects, we affirm the postconviction court’s order.

Affirmed in part, reversed in part, and remanded.

KELLY and LaROSE, JJ., Concur.

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

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

ALTENBERND, Judge.

Levi Robinson appeals an order denying his motion to correct illegal sentences. Although the error involved in this case is unlikely to have any practical prejudicial effect on Mr. Robinson, we are constrained to reverse the order and remand for resentencing in one of his cases.

Mr. Robinson is serving two concurrent terms of imprisonment that are both ten years and fourteen days in length. In case number CRC07-09276CFANO, the term was imposed for a lewd and lascivious battery, a second-degree felony. In case

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number CRC07-14490CFANO, the term was imposed for felony driving with a revoked license, a third-degree felony.

In his motion, Mr. Robinson primarily argues that while his offense of driving with a revoked license was treated as a habitual driving offense for purposes of section 322.34, Florida Statutes (2007), he was not orally pronounced a habitual offender for purposes of section 775.084(4)(a), Florida Statutes (2007). The trial court denied this motion, explaining that Mr. Robinson had not filed a direct appeal when he was sentenced in 2009 and, thus, there was no transcript of his plea or sentencing hearing in the trial court record. Without the transcripts, there was nothing on the face of the record to establish that his written conviction and sentence, as a habitual offender, for the offense of habitual driving with a revoked license was illegal. The trial court relied on this court’s decision in Nielson v. State, 984 So. 2d 587 (Fla. 2d DCA 2008), and the Third District’s decision in Lopez v. State, 2 So. 3d 1057 (Fla. 3d DCA 2009), which hold that it is the obligation of the defendant to obtain and file a transcript to support such a claim when the transcript is not in the record. The trial court denied this claim without prejudice to an amended motion that attaches the transcript.

We affirm the trial court as to this issue with some hesitancy. Now that such transcripts are typically obtained from digital recordings that are deemed to be the property of the chief judge of the circuit, see Fla. R. of Jud. Admin. 2.535(d), the policy of forcing the defendant to obtain the transcript from the court may be penny-wise and pound foolish. It will clearly encourage defendants to file unnecessary direct appeals in order to have more complete trial court records for postconviction purposes. We do not, however, see this concern as a matter that we can correct in this case.

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On the other hand, even if the trial court is correct in ruling that Mr. Robinson was sentenced for habitual driving with a revoked license as a habitual offender, the maximum term of imprisonment for that offense was ten years. On its face, the sentence that the trial court imposed is illegal by fourteen days.

Accordingly, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

KELLY and WALLACE, JJ., Concur.

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

Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

Appeals from the Circuit Court for Polk County; John K. Stargel and Neil A. Roddenbery, Judges.

SILBERMAN, Judge.

In these consolidated appeals, Renaldo R. Ferguson challenges in case number 2D09-276 his convictions and sentences in circuit case number CF08-5918-XX for possession of a firearm by a convicted felon, loitering and prowling, possession of cannabis, and possession of drug paraphernalia. Ferguson challenges in case number

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2D09-326 the revocation of his probation and resulting sentences in circuit court case numbers CF05-4414-XX and CF05-4426-XX on a total of ten offenses.

At issue in both appeals is the denial of his amended motion to suppress evidence on the new law violations in CF08-5918-XX. The new law violations were the basis for revoking his probation in CF05-4414-XX and CF05-4426-XX. Ferguson contends that the trial court erred in denying his amended motion to suppress because Officer Freeman did not have a reasonable suspicion of criminal activity to detain him or probable cause to arrest him for loitering and prowling. Our decision turns on the fact that even if the officer properly detained Ferguson, Officer Freeman did not have probable cause to arrest Ferguson for loitering and prowling and to then search him. We conclude that the trial court should have granted the amended motion to suppress the evidence obtained and statements made as a result of the arrest. Thus, we reverse the convictions and sentences in case number 2D09-276, and we reverse the revocation of probation and sentences in case number 2D09-326 and remand for Ferguson’s probation to be reinstated.

Officer Freeman testified at the suppression hearing that she was on her way to respond to a noise complaint in her marked patrol vehicle when she observed Ferguson standing in the street about two blocks ahead of her. This occurred at 9:30 p.m. in a high-crime area in a residential neighborhood. She saw Ferguson stand in the middle of the road and then move quickly to the west. When she was about a block away, she saw him do the same thing again. When she drove past Ferguson, he was standing between the screen door and the front door of a residence, looking over his shoulder at her. He was not knocking on the door or trying to enter; he was just

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standing there with his hands down by his sides. Officer Freeman acknowledged that she did not know if he was trying to break into the house or conceal something from her. She decided to turn her vehicle around and make contact with Ferguson. While she was making a U-turn, she saw Ferguson step into the road a third time “and bend over to look under a tree” to see where she had gone. Ferguson watched her while he was moving from one point to another, and his movements seemed to coincide with her movements.

As Officer Freeman turned her vehicle around, Ferguson went back towards the residence door and then hurriedly went to a vehicle parked on the street and started the engine. Just as his car started to move, Officer Freeman turned on her overhead lights and told Ferguson to stop, and he did so. Officer Freeman then saw Ferguson lean over to the passenger side floorboard of his car. She told Ferguson to get out of the car because she did not know if he had a weapon. Ferguson appeared very nervous, and he told Officer Freeman that he was on probation and asked her to please let him go. In response to her question, he stated that he was on probation for burglary. Ferguson gave her an identification card, said he lived in Auburndale, and the identification card reflected that he lived in Auburndale. Officer Freeman advised Ferguson that he was acting quite strangely for a law-abiding citizen and asked why he was there. Ferguson told her that a friend, Tawanna, lived at the residence, that “they” were not home, and that he was checking their door for them. When asked, he told the officer that they did not ask him to check their door.

Officer Freeman had been speaking to Ferguson for twenty to thirty minutes when several individuals arrived, including Tawanna. Tawanna confirmed for

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the officer that she lived at the residence in question and that it was normal for Ferguson to visit there, although she had not asked Ferguson to check the door for her. When the officer described the behavior she saw Ferguson exhibit and asked Tawanna if that was normal behavior for him, Tawanna replied that it was not.

Officer Freeman testified that the discussions did not dispel her alarm as to why Ferguson was acting the way he was and why he was there, so she arrested him for loitering and prowling. She searched him and found an empty gun holster on his belt; a subsequent search of his vehicle revealed a pistol, cannabis, and paraphernalia. She testified that the search was incident to his arrest.

Section 856.021(1), Florida Statutes (2008), provides, “It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for lawabiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” However, prior to an arrest for loitering and prowling, the officer must give “the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct.” § 856.021(2).

The offense consists of two elements. The first is that “the accused must loiter or prowl in a manner not usual for a law-abiding citizen. This conduct must come close to but fall short of the actual commission or attempted commission of a substantive crime and suggest that a breach of the peace is imminent.” Rucker v. State, 921 So. 2d 857, 859 (Fla. 2d DCA 2006). The second element is that “the factual circumstances must establish that the accused’s behavior is ‘alarming in nature,

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creating an imminent threat to public safety.’ ” Id (quoting R.M. v. State, 754 So. 2d 849, 850 (Fla. 2d DCA 2000)). “An officer must be able to articulate specific facts showing an imminent breach of the peace or threat to public safety.” Williams v. State, 674 So. 2d 885, 886 (Fla. 2d DCA 1996). Under the statute, alarm is presumed “if the defendant flees, conceals himself or any object, or refuses to identify himself when a law officer appears.” C.H.S. v. State, 795 So. 2d 1087, 1090 (Fla. 2d DCA 2001). To arrest Ferguson for the offense, Officer Freeman had to have probable cause that he committed loitering and prowling. See Rucker, 921 So. 2d at 860 (determining that the facts known to the officer did not give rise to probable cause to arrest for loitering and prowling).

Although Ferguson’s conduct may have warranted Officer Freeman initiating contact with him, based on all of the facts known to her, Officer Freeman lacked probable cause to arrest Ferguson for loitering and prowling. Ferguson stopped driving away when the officer asked him to do so. He identified himself and provided proof of identification and where he lived, and he explained why he was in the area. Tawanna confirmed Ferguson’s identity and acknowledged that it was normal for him to visit the residence. Officer Freeman also had information explaining Ferguson’s desire to avoid contact with law enforcement due to his being on probation.

Further, while Ferguson’s conduct was unusual, the facts do not suggest that a breach of the peace was imminent or that Ferguson’s conduct was close to the commission or attempted commission of a substantive crime. Indeed, Officer Freeman did not articulate specific facts as to an imminent breach of the peace, threat to public safety, or concern as to any substantive crime. The facts merely show that Ferguson

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was avoiding an officer who was passing through the area. The facts do not reflect an imminent burglary, trespass, or other crime, or even that Ferguson was unwelcome at the residence.

We recognize that Officer Freeman saw Ferguson reach toward the passenger floorboard when he entered his vehicle and that later, when she arrested him for loitering and prowling, she searched him and found an empty holster on his person and a firearm in the car. Those facts do not affect the determination of whether Officer Freeman had probable cause to believe that Ferguson was loitering or prowling and to arrest him for that crime. “The offense of loitering and prowling must be complete before any police action occurs.” Stephens v. State, 987 So. 2d 182, 184 (Fla. 2d DCA 2008) (citing Bowser v. State, 937 So. 2d 1270, 1272 (Fla. 2d DCA 2006)). That an officer subsequently discovers evidence regarding other crimes does not alter the analysis. Id

In Stephens, the fact that the officer found a knife in Stephens’ pocket after his arrest did not support the second element of an immediate concern for the safety of persons or property. Id The officer saw Stephens standing in a parking lot behind a closed store in the early morning hours.Id at 183. When the officer drove by, “the man moved into the shadows and ducked behind a parked car.” ki When the officer drove by again, he saw the man discard a small object. The officer stopped the man, who identified himself and told the officer that his uncle lived in the apartment attached to the store. The man walked away, and the officer retrieved the discarded object, a bag containing drugs. The officer arrested the man and found a knife in his pocket in a search incident to arrest.Id This court reversed the loitering and prowling

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conviction, determining that the State failed to prove the second element because “Stephen’s mere presence in the parking lot was insufficient to raise an immediate concern for the safety of persons or property.”Id at 184.

The trial court relied in its order and the State relies in its brief upon Mitchell v. State, 955 So. 2d 640 (Fla. 4th DCA 2007). There, the Fourth District, in affirming a conviction for possession of a controlled substance, discussed the loitering and prowling statute, which was the officer’s basis for conducting an investigatory stop. Id. at 641. The Fourth District determined that the officer had reasonable suspicion to conduct an investigatory stop and noted that “a defendant’s presence in an area of heavy narcotics trafficking and the defendant’s flight upon noticing police are sufficient to justify the officer’s reasonable suspicion that the individual is involved in criminal activity.”Id at 642 (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)).

Mitchell does not control the present case because the court did not address whether the officers had probable cause to arrest Mitchell for loitering and prowling. Instead, the court addressed the issue of whether the officers had reasonable suspicion to justify an investigatory stop, concluding that they did. During the stop, Mitchell resisted one of the officers and attempted to dump crack cocaine out of a tube that he was holding.

Here, the determinative issue is whether Officer Freeman had probable cause to arrest Ferguson for loitering and prowling. Based on the facts that she gathered during her investigation, we conclude that Officer Freeman did not have probable cause to make an arrest for loitering and prowling. Thus, the trial court should have granted Ferguson’s amended motion to suppress the evidence gathered during

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the search incident to that arrest. Accordingly, we reverse the convictions and sentences in case number 2D09-276 and reverse the revocation of probation and sentences in case number 2D09-326 and remand for Ferguson’s probation to be reinstated.

Reversed and remanded.

CASANUEVA, C.J., and DAVIS, J., Concur.