Florida Criminal Law Opinions

Mark L. Horwitz and Cassandra Snapp of Law Offices of Mark L. Horwitz, Orlando, for Appellant.

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

COHEN, J.

John Charles Gray, Jr., appeals the denial of his dispositive motion to dismiss predicated on section 776.032, Florida Statutes (2007). We affirm.

Gray was charged with aggravated assault with a firearm after he allegedly pointed his handgun at the driver of another vehicle and threatened to shoot him. Asserting that he was immune from prosecution because he was acting in self defense,

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Gray moved to dismiss the charge pursuant to section 776.032 and Florida Rule of Criminal Procedure 3.190(c)(4). The trial court denied these motions and Gray filed a petition for writ of certiorari. This court denied the petition, citing to Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008).

Subsequently, Gray moved to certify the issue as one of great public importance to the supreme court. In addressing the motion, this court recognized the conflict between Peterson and Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009). See Gray v. State, 13 So. 3d 114, 115 (Fla. 5th DCA 2009). This court also acknowledged that Gray advocated a different procedure than either Peterson or Velasquez. Specifically, Gray asserted that the “proper approach is to have the court make the determination at a proceeding much like the one Peterson requires, except that the burden at such a proceeding would be on the State to establish that Defendant is not entitled to immunity.” Id. This court denied the motion and stated, “[W]e will take it up, if raised, on plenary appeal.” kd. Subsequently, Gray pled nolo contendere and reserved his right to appeal the denial of his motion to dismiss.

Gray now appeals the denial of his motion to dismiss and renews the argument he raised in his petition for writ of certiorari. Consistent with the opinion denying Gray’s motion for certification, we agree that Peterson, 983 So. 2d 27, sets out the proper procedure for addressing a motion to dismiss which raises section 776.032 immunity. This court is not alone in this conclusion. See McDaniel v. State, 24 So. 3d 654 (Fla. 2d DCA 2009); State v. Yaqubie, 35 Fla. L. Weekly D1342 (Fla. 3d DCA June 16, 2010). We also point out that the conflict between Velasquez and Peterson has been accepted

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for review in Dennis v. State, 29 So. 3d 290 (Fla. 2009) (table), and is pending resolution.

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

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

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

SAWAYA, J.

The appellant, a child, appeals the restitution order rendered by the trial court. Prior to rendition of that order, the appellant filed a notice of appeal seeking review of his adjudication of delinquency. Thereafter, and prior to issuance of the mandate in that appeal, the trial court entered the order that is the subject of the instant appeal. Both the appellee and the appellant agree that the trial court did not have jurisdiction to enter

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the restitution order, and they further agree that the order must be reversed and the case remanded to allow the trial court to conduct another hearing to determine restitution.

Based on the concession of the parties and our review of the record, we reverse the restitution order and remand this case to the trial court for another restitution hearing. See Renfroe v. State, 20 So. 3d 1027, 1027 (Fla. 2d DCA 2009) (The State correctly concedes that the trial court was without jurisdiction to enter this order because Mr. Renfroe already had filed his notice of appeal from the judgments and sentences. ‘A trial court does not have jurisdiction to hold a restitution hearing or enter an order of restitution after a notice of appeal has been filed, even though the trial court may have previously ordered restitution and reserved jurisdiction only as to the amount.” (quoting Pearson v. State, 686 So. 2d 721, 721 (Fla. 2d DCA 1997))); Jenkins v. State, 954 So. 2d 738, 738 (Fla. 2d DCA 2007) (“A party’s filing of a notice of appeal divests the trial court of jurisdiction to enter a restitution order.”).

REVERSED and REMANDED.

GRIFFIN and PALMER, JJ., concur.

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

James S. Purdy, Public Defender and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

PER CURIAM.

The State of Florida seeks certiorari review of a circuit court order that authorizes Leslie Espinoza’s (‘Espinoza’) entry into a pretrial intervention program. The State objects to Espinoza’s court-ordered placement into the program without its consent and contends that section 948.08(6)(a), Florida Statutes (2009), does not apply to Espinoza because she was not charged with committing one of the enumerated offenses therein.

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Espinoza was charged by information with battery on a law enforcement officer, resisting without violence, and trespass on property other than a structure or conveyance. During a case management hearing held on January 21, 2010, the court announced its intention to refer Espinoza to the pretrial intervention program. The State objected, but the court ordered that Espinoza be placed into the program.

Section 948.08(2) provides that any first-time offender or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third-degree, is eligible for release to a pretrial intervention program. However, the section requires the consent of the administrator of the program, victim, state attorney, and judge who presided at the initial appearance hearing. Without the State’s consent, the court could only place Espinoza in the program if she were charged with one of the offenses enumerated in section 948.08(6)(a), which reads as follows:

(6)(a) Notwithstanding any provision of this section, a person who is charged with a felony of the second or third degree for purchase or possession of a controlled substance under chapter 893, prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud; who has not been charged with a crime involving violence, including, but not limited to, murder, sexual battery, robbery, carjacking, home-invasion robbery, or any other crime involving violence; and who has not previously been convicted of a felony nor been admitted to a felony pretrial program referred to in this section is eligible for voluntary admission into a pretrial substance abuse education and treatment intervention program, including a treatment-based drug court program established pursuant to s. 397.334, approved by the chief judge of the circuit, for a period of not less than 1 year in duration, upon motion of either party or the court’s own motion, except:

1. If a defendant was previously offered admission to a pretrial substance abuse education and treatment

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intervention program at any time prior to trial and the defendant rejected that offer on the record, then the court or the state attorney may deny the defendants admission to such a program.

2. If the state attorney believes that the facts and circumstances of the case suggest the defendants involvement in the dealing and selling of controlled substances, the court shall hold a preadmission hearing. If the state attorney establishes, by a preponderance of the evidence at such hearing, that the defendant was involved in the dealing or selling of controlled substances, the court shall deny the defendant’s admission into a pretrial intervention program.

That is not the case here. Espinoza was not charged with purchase or possession of a controlled substance under Chapter 893, prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud. Thus, the trial court exceeded its authority when it placed Espinoza in the program despite the State’s objection. Certiorari relief is warranted. See State v. Leukel, 979 So. 2d 292, 296 (Fla. 5th DCA 2008); King v. Nelson, 746 So. 2d 1217 (Fla. 5th DCA 1999).

PETITION GRANTED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.

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

Kathleen T. Gillard, Orlando, and Joseph N. D’Achille, Jr., Orlando for Respondent.

PER CURIAM.

The State of Florida seeks certiorari review of a circuit court order that authorizes Respondent Ta’Quieta Beyunka Lanae Pugh’s (“Pugh”) placement in a pretrial intervention program. The State objects to Pugh entering the pretrial intervention program without its consent and asserts that section 948.08(6)(a), Florida Statutes

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(2009), does not apply to Pugh as she was not charged with committing one of the enumerated offenses therein.

Pugh was charged with battery on a law enforcement officer, resisting without violence, and providing false identification to law enforcement officers. During a case management hearing held on January 21, 2010, the court, overruling the State’s objection, ordered that Pugh be placed into the pretrial intervention program.

Section 948.08(2) provides that any first-time offender or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third-degree, is eligible for release to a pretrial intervention program. However, the section requires the consent of the administrator of the program, victim, state attorney, and judge who presided at the initial appearance hearing. Without the State’s consent, the court could only place Pugh in the program if she were charged with one of the offenses enumerated in section 948.08(6)(a), which reads as follows:

(6)(a) Notwithstanding any provision of this section, a person who is charged with a felony of the second or third degree for purchase or possession of a controlled substance under chapter 893, prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud; who has not been charged with a crime involving violence, including, but not limited to, murder, sexual battery, robbery, carjacking, home-invasion robbery, or any other crime involving violence; and who has not previously been convicted of a felony nor been admitted to a felony pretrial program referred to in this section is eligible for voluntary admission into a pretrial substance abuse education and treatment intervention program, including a treatment-based drug court program established pursuant to s. 397.334, approved by the chief judge of the circuit, for a period of not less than 1 year in duration, upon motion of either party or the court’s own motion, except:

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I.lfa defendant was previously offered admission to a pretrial substance abuse education and treatment intervention program at any time prior to trial and the defendant rejected that offer on the record, then the court or the state attorney may deny the defendant’s admission to such a program.

2. If the state attorney believes that the facts and circumstances of the case suggest the defendant’s involvement in the dealing and selling of controlled substances, the court shall hold a preadmission hearing. If the state attorney establishes, by a preponderance of the evidence at such hearing, that the defendant was involved in the dealing or selling of controlled substances, the court shall deny the defendant’s admission into a pretrial intervention program.

That is not the case here. Pugh was not charged with purchase or possession of a controlled substance under Chapter 893, prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud. Thus, the trial court exceeded its authority when it placed Pugh in the program despite the State’s objection. Certiorari relief is warranted. See State v. Leukel, 979 So. 2d 292, 296 (Fla. 5th DCA 2008); King v. Nelson, 746 So. 2d 1217 (Fla. 5th DCA 1999).

Damoorgian, J.

Michael Martin appeals his conviction and sentence for sexual battery, raising five issues for our consideration. We write only to address Martin’s argument that the trial court erred in striking his alibi witnesses, and reverse and remand for a new trial on this issue alone. We find no merit to Martin’s remaining arguments.

Martin was charged by information with sexual battery and burglary with a battery. At trial, Martin’s counsel notified the court for the first time, before and during voir dire, that he had two alibi witnesses to call, neither of whom was listed in his witness list previously furnished to the State. The witnesses were Martin’s girlfriend and his girlfriend’s mother. The State objected, arguing that it would be prejudiced if the alibi witnesses were permitted to testify at trial. The trial court, however, sought to move forward and finish voir dire before addressing this issue.

When voir dire finished, a discussion ensued between the trial court and Martin’s counsel, where the court questioned counsel if there was any good cause why it should waive the requirements of Florida Rule of Criminal Procedure 3.200 (“Notice of Alibi”)¹ and permit Martin’s two

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witnesses to testify. Martin’s counsel responded by stating that Martin was facing life in prison for his charged crimes. The trial court struck the witnesses, finding no good cause to waive the requirements of rule 3.200. The court further found that the State was inherently prejudiced and that the violation of rule 3.200 was not a discovery violation requiring a Richardson² hearing.

A trial court’s exclusion of alibi witnesses under rule 3.200 is subject to review for abuse of discretion. See Armstrong v. State, 931 So. 2d 187, 196 (Fla. 5th DCA 2006). On appeal, Martin argues that the State never made a written demand for a notice of alibi under rule 3.200, and therefore, he was not required to turn over the notice to the State. Accordingly, Martin contends that the trial court erred in excluding his two alibi witnesses under rule 3.200. In response, the State contends that Martin did not raise his arguments before the trial court, and thus, the arguments are not preserved for review by this court.

After analyzing the record, there is no evidence that the State filed a written demand on Martin for a notice of alibi. Without a written demand, Martin was not required to follow the requirements of rule 3.200 and to provide the State with a notice of alibi. See Fla. R. Crim. P. 3.200. Although Martin did not raise his arguments below, rule 3.200 is for the benefit of the State, and thus, the State cannot take advantage of the requirements of rule 3.200 to the defendant’s detriment when it has failed to comply with the rule’s initial mandate by failing to file a written demand for a notice of alibi. Therefore, the trial court abused its discretion in excluding Martin’s alibi witnesses because it was not authorized to exclude the witnesses under rule 3.200. See id.

However, even though Martin did not violate the requirements of rule 3.200, he participated in discovery and was thus required, under Florida Rule of Criminal Procedure 3.220(d)(1)(A), to furnish to the State a written list of all witnesses he expects to call at trial. A discovery violation under rule 3.220(d)(1)(A) for failing to disclose a witness obligates the trial court to conduct a Richardson hearing before deciding to permit or exclude the witness from testifying. See Jones v. State, 32 So. 3d 706, 710-11 (Fla. 4th DCA 2010) (stating that the trial court is

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required to conduct a Richardson hearing when it learns of a discovery violation even if the defendant does not request the hearing); Lewis v. State, 22 So. 3d 753, 757 (Fla. 4th DCA 2009); Comer v. State, 730 So. 2d 769, 774 (Fla. 1st DCA 1999) (“Clearly, the Richardson requirements apply also where the defense committed the discovery violation.” (citing Brazell v. State, 570 So. 2d 919, 921 (Fla. 1990))).

In Small v. State, 630 So. 2d 1087, 1089 (Fla. 1994), the Florida Supreme Court articulated the critical differences between rule 3.200 and rule 3.220, and the trial court’s requirement to conduct a Richardson hearing only for a rule 3.220 violation:

Rule 3.220, like the notice of alibi rule, was designed to ensure that both the state and the defense have knowledge of relevant information regarding the case and are properly prepared for trial. However, unlike the notice of alibi rule, a violation of rule 3.220 will not always result in prejudice. For that reason, rule 3.220(n) provides a choice among sanctions the court may impose for violation of the rule. After conducting a Richardson inquiry, the court can determine how severe the sanction should be based on the degree of prejudicial impact caused by the discovery violation. The notice of alibi rule does not provide a list of sanctions comparable to that in rule 3.220 because a violation of the notice of alibi rule will always result in prejudice. In contrast to rule 3.220, the notice of alibi rule limits the court to excluding the alibi evidence or waiving the requirement for good cause if the defendant fails to provide the [S]tate with the requisite notice. Because a violation of the notice of alibi rule is not completely analogous to a failure to furnish discovery information under rule 3.220, the decisional law applying to rule 3.220 is not equally applicable to the notice of alibi rule.

Because Martin failed to include his two alibi witnesses in his witness list furnished to the State under rule 3.220(d)(1)(A), the trial court was required to conduct a Richardson hearing for this discovery violation. See Jones, 32 So. 3d at 710-11; Lewis, 22 So. 3d at 757; Comer, 730 So. 2d at 774. The trial court erred in failing to do so. See Comer, 730 So. 2d at 774-75 (holding that the trial court’s exclusion of the defendant’s sole witness without conducting a Richardson hearing was error, since the issue of prejudice to the State was not addressed by the court); see also Fabregas v. State, 829 So. 2d 238, 241 (Fla. 3d DCA 2002) (concluding that the exclusion of a defendant’s rebuttal expert was too

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severe a remedy, even though the State was prejudiced, because the evidence was relevant and the trial court did not consider any other alternative to exclusion).

However, the failure to conduct an adequate Richardson hearing is subject to harmless error analysis. Dawson v. State, 20 So. 3d 1016, 1022 n.5 (Fla. 4th DCA 2009) (citing Comer, 730 So. 2d at 775). In State v. Schopp, 653 So. 2d 1016, 1020 (Fla. 1995), the Florida Supreme Court provided the following guidance in determining whether a Richardson violation was harmless error:

In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.

In this case, the trial court excluded Martin’s only two witnesses supporting his alibi defense. At trial, Martin proffered the testimony of his girlfriend, which revealed that Martin was at his girlfriend’s home with the girlfriend’s mother on the night he was alleged to have committed the charged crimes. Under the court’s standard in Schopp, we cannot say that the trial court’s error in failing to conduct a Richardson hearing was harmless beyond a reasonable doubt. See M.N. v. State, 724 So. 2d 122, 124 (Fla. 4th DCA 1998) (holding that the trial court’s exclusion of the defendant’s sole witness without a Richardson inquiry was not harmless beyond a reasonable doubt). Accordingly, we reverse Martin’s conviction and remand for a new trial on his sexual battery charge.

Reversed and Remanded.

Farmer and Levine, JJ., concur.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Matthew I. Destry, Judge; L.T. Case No. 08-2317 CF10A.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson,

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Assistant Public Defender, West Palm Beach, for appellant.

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

Not final until disposition of timely filed motion for rehearing.

——–

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

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

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

Appeal from the Circuit Court for Sarasota County; Stephen L. Dakan, Senior Judge.

Opinion

ALTENBERND, J.

Steven Aldacosta appeals his judgment and sentence for felony battery. The narrow issue on appeal is whether a prior conviction for lewd or lascivious battery can be used as a qualifying offense to transform misdemeanor battery into felony battery. See § 784.03(2), Fla. Stat. (2007). Lewd or lascivious battery is not among the qualifying convictions expressly enumerated in the felony battery statute. Given our

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obligation to construe criminal statutes strictly, we conclude that lewd or lascivious battery is not currently a qualifying conviction for felony battery. If the legislature intends it to be such an offense, it will need to amend the statute. Accordingly, we conclude that the trial court erred in convicting Mr. Aldacosta of felony battery. We reverse and remand for entry of a conviction for misdemeanor battery and for the imposition of a lawful sentence for that misdemeanor.

Mr. Aldacosta was charged with attempted sexual battery, false imprisonment, and felony battery for events occurring on April 9, 2008. A jury acquitted him of the first two offenses, but convicted him of simple battery. Mr. Aldacosta agreed to allow the trial judge to determine whether he qualified for a conviction of felony battery.

The only evidence before the court at the bench trial was a certified copy of Mr. Aldacosta’s conviction in 2002 for lewd or lascivious battery, contrary to section 800.04(4), Florida Statutes (2001). Mr. Aldacosta argued that lewd or lascivious battery was not a valid predicate conviction for felony battery because it is not among the statute’s enumerated predicate convictions and is not of a similar nature. The trial judge, relying on State v. Warren, 796 So. 2d 489 (Fla. 2001), rejected the defense’s argument. The trial court ruled that Mr. Aldacosta’s prior conviction for lewd or lascivious battery was a prior battery conviction for purposes of the statute and thus entered a judgment of conviction for felony battery rather than misdemeanor battery and imposed a sentence of five years’ imprisonment.

Both in the trial court and in this court, the State has argued that lewd or lascivious battery is a qualifying offense as a matter of law and, in the alternative, that

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the actual factual circumstances of Mr. Aldacosta’s prior offense permit it to be used as a qualifying offense. We agree with Mr. Aldacosta that lewd or lascivious battery is not a qualifying offense as a matter of law and that, for purposes of this statute, it is inappropriate to examine the factual basis for a prior conviction as compared with the statutory elements of that conviction.

Section 784.03(2) provides that “[a] person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree….” (Emphasis added.) The statute lacks any reference to the offense of lewd or lascivious battery, which the Legislature created in 1999. See ch. 99-201, § 3, at 1184-85, Laws of Fla. Thus, if lewd or lascivious battery is to be treated as a qualifying offense, it must obtain this status under the general references in section 784.03(2) to “battery” or “felony battery.”

We interpret the references to “battery” and “felony battery” in section 784.03(2) by looking to their statutory definitions. See Nicholson v. State, 600 So. 2d 1101, 1103 (Fla. 1992) (“When a definition of a word or phrase is provided in a statute, that meaning must be ascribed to the word or phrase whenever it is repeated in the statute unless a contrary intent clearly appears.”). Section 784.03(1) defines “battery” as “[a]ctually and intentionally touch[ing] or strik[ing] another person against the will of the other; or… [i]ntentionally caus[ing] bodily harm to another person.” Section 784.041(1) defines “felony battery” as “[a]ctually and intentionally touch[ing] or strik[ing] another person against the will of the other; and… [c]aus[ing] great bodily harm, permanent disability, or permanent disfigurement.”

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Under section 800.04(4), a person commits the offense of “lewd or lascivious battery” if he or she:

(a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or

(b) Encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity commits lewd or lascivious battery….

Although section 800.04(4)(a) involves the touching of another, the statute does not require that the sexual activity be “against the will of the other” or cause “bodily harm to another person.” A person who commits lewd and lascivious battery under section 800.04(4)(b) by encouraging a person less than sixteen years of age to engage in prostitution does not have to personally “touch or strike another person.”

We are, of course, obligated to construe criminal statutes strictly and in favor of the accused. See § 775.021(1), Fla. Stat. (2007). Mr. Aldacosta’s prior conviction for lewd or lascivious battery does not meet the statutory definition of either battery or felony battery. Because Mr. Aldacosta does not have “one prior conviction for battery, aggravated battery, or felony battery,” as provided under section 784.03(2), we conclude that he could not be convicted of the offense of felony battery defined under section 784.03(2).

We realize that, in Warren, the supreme court held the term “battery” in a prior version of section 784.03(2) to include more than the offense of misdemeanor battery. 796 So. 2d at 490. The court reasoned that, in finding the term battery in the prior version of section 784.03(2) did not include any battery, the trial court had effectively rewritten the statute. According to the court in Warren, “[t]he word battery

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refers to the touching or striking of another person.” Id. at 490.

The Legislature responded to Warren by adding the terms “aggravated battery” and “felony battery” to section 784.03(2). See ch. 2001-50, § 4, at 320, Laws of Fla. The Legislature did not include lewd or lascivious battery in the list of qualifying prior offenses. “Battery” is specifically defined by statute, and section 784.03(2) does not refer to a prior conviction for “any battery.” Additionally, unlike the offense of aggravated battery at issue in Warren, lewd or lascivious battery can be committed without touching or striking another person against his or her will. See § 800.04(1)(b), (4)(a)-(b). Given the elements of the offense of lewd or lascivious battery, we conclude that Warren is not controlling and is distinguishable.

The State contends that the factual circumstances of Mr. Aldacosta’s prior offense permit it to be used as a qualifying offense for felony battery. We disagree. Battery is not a necessarily lesser-included offense of lewd or lascivious battery. The misdemeanor form of battery is a permissive lesser-included offense of lewd or lascivious battery. See Khianthalat v. State, 935 So. 2d 583 (Fla. 2d DCA 2006). In either case, section 784.03(2) requires a “prior conviction,” not that a person have a prior conviction the facts of which would constitute battery. There are many practical reasons why the legislature would define an offense in a way that avoids resurrecting the historical facts of a prior criminal proceeding. See Perkins v. State, 576 So. 2d 1310, 1313 (Fla. 1991) (stating that the “statutory elements of the crime itself must include or encompass conduct of the type described” in order to constitute a forcible felony); cf.Dautel v. State, 658 So. 2d 88, 91 (Fla. 1995) (“[O]nly the elements of the out-of-state crime, and not the underlying facts, should be considered in determining

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whether the conviction is analogous to a Florida statute for the purpose of calculating points for a sentencing guidelines scoresheet.”).

Because Mr. Aldacosta had no prior qualifying conviction for purposes of the felony battery statute, we reverse his conviction. However, a jury found Mr. Aldacosta guilty of the statutory elements of simple battery, which is a necessary lesserincluded offense of felony battery. We therefore remand the case to the trial court to enter a conviction for simple battery and an appropriate sentence. See § 924.34, Fla. Stat. (2007); State v. Sigler, 967 So. 2d 835, 844 (Fla. 2007) (“[W]hen all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense.”).

Reversed in part, affirmed in part, and remanded.

CASANUEVA, C.J., and WHATLEY, J., Concur.

Steven Leon Pinder, in proper person.

Bill McCollum, Attorney General, for appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge.

Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

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ROTHENBERG, J.

Steven Leon Pinder (“Pinder”) appeals the trial court’s order denying his petition for writ of habeas corpus and/or relief from judgment. We affirm.

The procedural history of this case is as follows. Pinder was tried and convicted on July 15, 1992, of one count of attempted sexual battery on a minor and one count of sexual battery on a minor. The judgment and sentences were affirmed on appeal. Pinder v. State, 620 So. 2d 770 (Fla. 3d DCA 1993). On or about January 9, 1996, Pinder filed a Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, which was denied by the trial court and then affirmed by this Court on April 17, 1996. Pinder v. State, 673 So. 2d 41 (Fla. 3d DCA 1996).

In 2005, Pinder filed three motions: (1) a petition for writ of habeas corpus, which was filed on April 19, 2005, and denied by the trial court on May 9, 2005; (2) a motion for postconviction relief, filed in December 2005, and denied on February 28, 2006; and (3) a motion for postconviction DNA testing, which was also filed in December 2005, and denied on February 28, 2006. These orders were not appealed. On April 12, 2007, Pinder filed another postconviction motion, which was also denied by the trial court, and on July 13, 2009, he filed the petition for writ of habeas corpus and/or relief from judgment that is the subject of this appeal.

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Pinder’s petition raises three claims which, he argues, militate in favor of his immediate release from incarceration: (1) he was improperly charged by information rather than by indictment; (2) he is an innocent man who was convicted as a result of the inadequate investigations performed by law enforcement and the State; and (3) although his claims are procedurally barred, it would result in manifest injustice to not consider them. We conclude that the trial court properly denied Pinder’s petition as his first and third claims are without merit, and his second claim is both procedurally barred and time-barred.

Pinder, who was charged with two counts of sexual battery on a minor, was properly charged by information. Florida Rule of Criminal Procedure 3.140 provides as follows: “(1) Capital Crimes. An offense that may be punished by death shall be prosecuted by indictment. (2) Other Crimes. The prosecution of all other criminal offenses shall be as follows: In circuit courts and county courts, prosecution shall be solely by indictment or information….” Thus, the State Attorney must charge all criminal offenses punishable by death by indictment, but may elect whether to charge all other offenses by either filing an indictment or an information. See also State v. Hogan, 451 So. 2d 844, 845 (Fla. 1984) (holding that a “capital case” is one where death is a possible penalty).

In Pinder’s second claim, he contends that he is innocent of the charges. He posits that his convictions were obtained by “false and perjured” evidence.

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Because Pinder was represented by counsel, his claim, in reality, is a claim of ineffective assistance of trial counsel, which the trial court correctly found was both procedurally barred and time-barred, and insufficient as pled. See Patterson v. State, 664 So. 2d 31, 32 (Fla. 4th DCA 1995) (affirming denial of petition for habeas corpus where it was apparent the defendant was merely seeking an untimely motion for rule 3.850 relief); Ragan v. State, 643 So. 2d 1175, 1176 (Fla. 3d DCA 1994) (holding that where the initial motion for postconviction relief raises a claim of ineffective assistance of counsel, the trial court may deny a successive motion which raises additional grounds of ineffective assistance of counsel if abuse of process is evident). In a subsequent motion, the defendant must state legitimate reasons why the facts in support of his present claim were not known and could not have been known to him at the time of the filing of his first motion. Christopher v. State, 489 So. 2d 22, 24 (Fla. 1986). If the defendant fails to do so, the successive motion constitutes an abuse of process. Foster v. State, 614 So. 2d 455, 458 (Fla. 1992).

Affirmed.

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 Hillsborough County; Ronald N. Ficarotta Judge.

Opinion

WHATLEY, J.

Michael Jones appeals from the summary denial of his motion for return of property pursuant to section 705.105(1), Florida Statutes (2009). Because we are unable to determine the basis for the denial of the motion, we reverse and remand for further proceedings.

Jones alleges in his motion that the Hillsborough County Sheriff’s Office seized a “plethora” of his personal and business property as part of a criminal investigation in 2006. He asserts that this property is not the fruit of any criminal

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activity, was not entered into evidence and is no longer needed as evidence, and remains in the sheriff’s possession. Attached to the motion are numerous documents, including the sheriff’s inventory of the items seized, most of which are computers, hard drives, diskettes, cameras, and computer and camera accessories. Some of the items were immediately transferred to the Federal Bureau of Investigation, according to a document reflecting their receipt by that agency on the day they were seized. Jones’s motion does not describe the crimes with which he was charged or convicted but recites only that his motion is timely as it was filed within sixty days of the issuance of the mandate on his direct appeal. The circuit court issued an order summarily denying the motion without any explanation or record attachments to refute Jones’s claim that he is entitled to return of his property.

The circuit court should have first made a decision on the facial sufficiency of Jones’s motion. “A facially sufficient motion for return of property must specifically identify the property and allege that it is the movant’s personal property, that the property is not the fruit of criminal activity, and that the property is not being held as evidence.” Wilson v. State, 957 So. 2d 1264, 1265 (Fla. 2d DCA 2007) (quoting Justice v. State, 944 So. 2d 538, 539 (Fla. 2d DCA 2006)). If the court in fact considered Jones’s motion facially sufficient, several courses of action were available. The court could have denied the motion on its merits with attachments to its order that conclusively refute Jones’s entitlement to return of the property, perhaps after ordering a response from the State. Alternatively, the court could have granted or denied the motion after holding an evidentiary hearing. See Almeda v. State, 959 So. 2d 806, 809

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n.2 (Fla. 2d DCA 2007). In any event, a bare summary denial, without explanation or attachments, is improper; and we reverse and remand for further proceedings.

Reversed and remanded.

SILBERMAN and KELLY, JJ., Concur.

Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge.

Opinion

Before SUAREZ and CORTINAS, JJ., and SCHWARTZ, Senior Judge.

SUAREZ, J.

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The defendant, Rollin Monestime, appeals from his convictions for cocaine trafficking and money laundering. Monestime contends that the trial court erred in admitting a photograph of a gun discovered with the contraband, and that he did not meet the knowledge requirement for the money laundering charge. We disagree, and affirm.

Monestime was charged with trafficking in over 400 grams of cocaine, in violation of section 893.135(1)(b)(1)(C), Florida Statutes (2009), and with money laundering of an amount over $100,000, in violation of section 896.101(5)(c), Florida Statutes (2009). At trial, Detective Thomas Mundy testified that he observed Monestime taking a heavy black bag from his residence and placing it in a white Isuzu. Detective Mundy then followed Monestime in the car to the residence of Kenneth Lubin, where he observed Monestime and Lubin transferring the black bag and a speaker box from the vehicle into Lubin’s house. Detective Mundy testified that, on approaching and identifying himself to Monestime and Lubin, he noticed the zipper of the black bag was open eight to ten inches, revealing bundles of U.S. currency within wrapped in “quick count bundles,” which Detective Mundy testified are “commonly used in the narcotics profession for quick counting and distribution.” The bag contained $738,804.00 in U.S. currency.

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Officer Orlando Saavedra testified that he arrived at Lubin’s residence with his drug-sniffing dog, who searched the vehicle and alerted to a white T-shirt wrapped around a baggie containing 481.9 grams of powder cocaine. Detective Mundy testified that, at that point, he placed Monestime under arrest. Officer Saavedra’s dog also alerted to the speaker box. A subsequent search revealed an AR-15 rifle concealed within it.

Detective David Rosen testified that he interviewed Monestime at the police station. Detective Rosen testified that Monestime stated that he had received a phone call instructing him to “take the suitcase with the money, take the cocaine, and to also take a gun that was in a speaker and get rid of it.” Detective Rosen testified that Monestime told him that the police would not find his fingerprints because, when he took the cocaine, he wrapped it in a T-shirt first and then put it in the car. Detective Rosen testified that he believed Monestime knew that the money was connected to drugs.

At trial, the prosecution raised the issue of the gun in connection with the cocaine and the money, including referencing all three together during closing statements as “tools of the trade.” Monestime moved for judgments of acquittal on both the cocaine trafficking and money laundering charges, and the trial judge denied both motions. The jury returned a guilty verdict on both charges, and the

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court sentenced Monestime to fifteen years on each count, running concurrently. Monestime appealed.

Monestime argues that the trial court abused its discretion by admitting the photograph of the gun because it was not relevant, was not inextricably intertwined to the charged offenses, and its probative value was substantially outweighed by the danger of unfair prejudice. We disagree. A trial court’s determination that evidence is relevant and admissible “will not be disturbed absent an abuse of discretion.” Taylor v. State, 855 So. 2d 1, 21 (Fla. 2003) (quoting Sexton v. State, 697 So. 2d 833, 837 (Fla. 1997)); see also Irving v. State, 627 So. 2d 92, 94 (Fla. 3d DCA 1993). Evidence that is inextricably intertwined with the crime charged is admissible under section 90.402, Florida Statutes (2009), because it is a relevant and inseparable part of the act at issue and where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime. See Curry v. State, 839 So. 2d 887, 889 (Fla. 3d DCA 2003). Evidence is inextricably intertwined if the evidence is necessary to (1) adequately describe the deed, (2) provide an intelligent account of the crime(s) charged, (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up to the charged crime(s). Dorsett v. State, 944 So. 2d 1207, 1213 (Fla. 3d DCA 2006). “To prove its case, the State is entitled to present

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evidence which paints an accurate picture of the events surrounding the crimes charged.” Griffin v. State, 639 So. 2d 966, 970 (Fla. 1994).

We conclude that the rifle was inextricably intertwined with the crimes charged, and the photograph of the rifle was certainly necessary to establish the context out of which the charged crimes arose. See Albarran v. State, 890 So. 2d 1267 (Fla. 5th DCA 2005); Vail v. State, 890 So. 2d 373, 374 (Fla. 3d DCA 2004); Baso v. State, 433 So. 2d 660 (Fla. 3d DCA 1983). The testimony regarding the hidden gun, the money and cocaine provided critical context to the jury’s understanding of the crimes charged, while the photograph of the AR-15 rifle served to provide a tangible example to the jury of the acts that comprised a single criminal episode. The gun, cocaine, and money are all related, as revealed by Monestime’s statement about the phone call he received instructing him to transport all of those items to Lubin’s house.

Even if the admission of the photograph was an abuse of the trial court’s discretion, we conclude that the error was harmless. To prove harmless error, the State must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Here, the State referred to the gun sparingly, and focused almost exclusively on the cocaine and the money. The gun evidence was

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largely used in trial only when tied to the cocaine and money through testimony. The gun was referenced in the closing argument as a “tool of the trade,” but the defense failed to object at the time and thus did not preserve the argument. See Wright v. State, 19 So. 3d 277, 295 (Fla. 2009) (“Failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review.”) (quoting Brooks v. State, 762 So. 2d 879, 898 (Fla. 2000)). For these reasons, we affirm the trial court’s admission of the gun evidence.

Monestime also challenges the knowledge element of the money laundering charge. We conclude that competent, substantial evidence supports the trial court’s ruling on Monestime’s motion for judgment of acquittal. In reviewing a judgment of acquittal, the standard of review is de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). “The concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the ruling on appeal, there is substantial, competent evidence to support the ruling.” Banks v. State, 732 So. 2d 1065, 1067 n.5 (Fla. 1999) (quoting Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)). Pursuant to section 896.101(2)(h), Florida Statutes (2009), if the transaction or transportation involves more than $10,000 in U.S. currency, the standard for knowledge is knew or should have known after

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reasonable inquiry. The facts support the trial court’s denial of Monestime’s motion for judgment of acquittal.

Affirmed.