Florida Criminal Law Opinions

Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

An appeal from the Circuit Court for Escambia County. Frank L. Bell, Judge.

PER CURIAM.

In this direct criminal appeal, appellant seeks review of his convictions and sentences for trafficking in cocaine and conspiracy to traffic in cocaine. He raises only one issue—that the trial court committed reversible error when it permitted

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the state to display to the jury during closing arguments transcripts of recorded telephone conversations notwithstanding its earlier ruling that the transcripts would not be received as evidence because their accuracy had neither been stipulated to nor independently determined by the court before trial. We agree with appellant that this was error. See Martinez v. State, 761 So. 2d 1074 (Fla. 2000). However, we also agree with the state that, given the other evidence of appellant’s guilt, the error was harmless to the exclusion of all reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Accordingly, we affirm.

AFFIRMED.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., CONCUR.

Bill McCollum, Attorney General, Tallahassee, and Deborah A. Fraim, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.

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

Appeal from the Circuit Court for Manatee County; K. Douglas Henderson, Acting Circuit Judge.

BLACK, Judge.

The State appeals the trial court’s March 2, 2009, order granting Jessie Valdez, Jr.’s motion for discharge based on a violation of Florida Rule of Criminal

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Procedure 3.191, the speedy trial rule. Because the rule was not violated and Valdez was not entitled to discharge, we reverse and remand for further proceedings.

On January 14, 2009, the 140th day after Valdez’s arrest, the State filed an information charging Valdez with carrying a concealed firearm, possession of a firearm by a convicted felon, resisting an officer without violence, and possession of ammunition by a convicted felon. Pursuant to the speedy trial rule, the State had 175 days from the date of Valdez’s arrest to bring Valdez to trial. Prior to the filing of the information, Valdez filed a notice of discovery; the State had fifteen days from January 14, 2009, the day it filed the information, to provide defense counsel with the written discovery. See Fla. R. Crim. P. 3.220.

On February 19, 2009, the 176th day after Valdez’s arrest, Valdez filed a written notice of expiration of speedy trial and motion for discharge. On February 25, 2009, the circuit court scheduled Valdez’s trial for March 2, 2009, the eleventh day of the recapture period, and addressed Valdez’s motion to suppress evidence seized under an invalid search warrant. On March 2, 2009, the day of trial, counsel for Valdez made a motion to dismiss for lack of discovery and a motion to continue for lack of discovery, to be charged to the State. The State argued that it had e-mailed the discovery to defense counsel on February 25, 2009, nearly thirty days late and only five days prior to trial. Valdez’s counsel stated he had not received the e-mail or the discovery and, as a result, he was not prepared for trial. Citing Vega v. State, 778 So. 2d 505 (Fla. 3d DCA 2001), counsel for Valdez argued that a defendant should not have to choose between his right to a speedy trial and his right to discovery within a sufficient time to prepare for trial. The trial court denied Valdez’s motion to dismiss; however,

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relying on Vega, and the fact that the State admitted it had provided discovery only five days prior to trial, the trial court granted the continuance and charged it to the State. At the same time, because Valdez had filed a motion for discharge with his notice of expiration of speedy trial, the trial court granted Valdez’s motion for discharge. The court based its ruling on the incorrect finding that the speedy trial period had expired.

This case turns on the application of the speedy trial and recapture period of rule 3.191. The assertion that the trial court erred in granting Valdez’s motion for discharge is a question of law and is reviewed de novo. See Williams v. State, 946 So. 2d 1163 (Fla. 1st DCA 2006).

Valdez was entitled to discharge only if the State failed to bring him to trial within the speedy trial and recapture period of rule 3.191(p)(3). The trial court erred in granting Valdez’s motion for discharge because on the date the court did so, March 2, 2009, the recapture period had not expired. The trial court should have rescheduled the trial for any day between March 2 and March 6, 2009.

Despite his argument otherwise, Valdez was not irreparably prejudiced by the State’s failure to timely provide discovery. “[T]he key question in a situation in which a discovery violation is alleged is whether or not the defendant was significantly prejudiced by the State’s failure to produce the requested evidence.” State v. Burnett, 870 So. 2d 858, 862 (Fla. 3d DCA 2004) (quoting State v. DelGaudio, 445 So. 2d 605, 609 (Fla. 3d DCA 1984)). As long as discovery is provided in time to allow the defendant to utilize it prior to the expiration of speedy trial, including the recapture period, there is no prejudice. Id. The Burnett court found that the defendant was not irreparably prejudiced in his trial preparation, having received the requested discovery

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at least twelve days before the expiration of the recapture period. 870 So. 2d at 862; cf.. Von Waldner v. State, 860 So. 2d 1061, 1063 (Fla. 5th DCA 2003) (concluding that the State’s discovery delay resulted in cognizable prejudice which could not be corrected within the speedy trial time period as trial was set on the last day of the recapture period). In Vega, trial was set on the last day of the recapture period and the State provided its discovery at trial, thus giving the court no alternative but to grant Vega’s motion for discharge. Vega is therefore distinguishable from this case.

In this instance, the State claimed the discovery was provided nine days prior to the expiration of the recapture period. The wrinkle here is that counsel for Valdez claimed not to have received the e-mail. However, Valdez was made aware of the State’s witnesses the morning of March 2, 2009-six police officers, only three of whom were to testify. Valdez had a copy of the police report, search warrant, and enough information to file a motion to suppress prior to the trial date being set. Certainly, Valdez and his counsel were aware of the majority of the State’s witnesses without the State providing any written discovery. Therefore, “any prejudice to the defendant’s preparation could have been cured by a short continuance to a date still within the speedy trial time.” State v. Guzman, 697 So. 2d 1263, 1264 (Fla. 3d DCA 1997).

Moreover, if Valdez “both needed the discovery in question and wanted to keep the speedy trial date, it was imperative for defense counsel to have sought immediate relief from the court once discovery was overdue.” See Rodriguez v. State, 933 So. 2d 1263, 1264 (Fla. 3d DCA 2006); see also Colby v. McNeill, 595 So. 2d 115, 116 (Fla. 3d DCA 1992) (noting defense counsel’s “diligent” efforts to obtain belated

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discovery). Urging the trial court to charge the continuance to the State, Valdez’s counsel correctly argued there is no procedural requirement that he file a motion to compel. The rules place the burden on the State. However, counsel did nothing to assert his entitlement to the discovery and did not act in a manner consistent with a desire to secure speedy trial. See Guzman, 697 So. 2d at 1264.

Ultimately, a defendant should not seek a speedy trial until he is prepared for trial. Landry v. State, 666 So. 2d 121, 127 (Fla. 1995). When defense counsel files a notice that the 175-day speedy trial requirement has expired, “it is a signal that the defendant is prepared and desires the setting of a trial.” State v. Gilliam, 884 So. 2d 128, 130 (Fla. 2d DCA 2004). Discharging the defendant is an extreme sanction which should be considered only once less severe alternative remedies are considered. State v. T.G., 990 So. 2d 1183, 1186 (Fla. 3d DCA 2008) (Cortinas, J., dissenting). Examples of lesser available sanctions would have included: continuing the trial for a period of time so that Valdez’s counsel could depose the State’s witnesses, excluding undisclosed evidence and/or testimony, or denying the continuance and proceeding to trial as scheduled. See id; State v. Naveira, 873 So. 2d 300, 309 (Fla. 2004) (“A defendant who is compelled to go to trial unprepared may raise his due process rights in the trial court on appeal….”).

Where, as here, there is a sanction available to the trial court that will provide relief to the defendant and permit the State to move forward with its case within the speedy trial and recapture periods provided by the rules, the trial court should not take the harsh action of discharging the defendant.

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Accordingly, we reverse and remand with instructions to reinstate the criminal action in the circuit court.

NORTHCUTT and WALLACE, JJ., Concur.

James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee.

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

Appeal from the Circuit Court for Orange County, A. Thomas Mihok, Judge.

EVANDER, J.

William Bishop timely appeals from judgments and sentences for kidnapping a child under the age of thirteen (13), ¹ lewd or lascivious molestation, ² lewd or lascivious

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conduct, ³ lewd or lascivious exhibition, ⁴ and use of a child in a sexual performance.⁵ We conclude that Bishop’s conviction for lewd or lascivious conduct violated his double jeopardy rights. We otherwise affirm.

The eight-year-old victim and her family were vacationing at the Disney Swan Hotel. The victim was playing by herself in a sandy area near the hotel’s pool. She testified that Bishop approached her and told her, “You’re a pretty girl. I have a girl next door to me that looks exactly like you.” Bishop was wearing an Hawaiian shirt and shorts and was holding a hand-held video camera. He briefly pulled his penis out over the top part of his shorts and then asked the victim if she wanted to see the water pipes to the pool’s waterfall. The victim responded “okay” and followed Bishop to a wooded area behind a storage shed. They both sat down and Bishop pointed his video camera at the lower part of the victim’s body as he rubbed her leg and genital area with his hand underneath her swimsuit bottom. The victim testified that the video camera appeared to be on.

The victim’s testimony was generally consistent with that of eleven-year-old David Silva. David and his family (apparently unrelated to the victim’s family) were also vacationing at the Swan Hotel. David testified that before his contact with the victim, Bishop had approached David’s younger sister and asked her if she could point out her parents to him. The younger sister ignored Bishop, but David informed his father of the incident and the two decided to “keep an eye” on Bishop.

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Subsequently, David observed Bishop talking to the victim. He followed the two to the wooded area and observed Bishop apparently videotaping his act of rubbing the victim’s genital area. David told his father, who immediately alerted the lifeguards. Michael Charette, one of the lifeguards, saw Bishop on his knee with the victim next to him. The victim ran to her parents and Bishop walked quickly in the opposite direction. Charette observed Bishop adjusting his shorts and pressing buttons on the video camera. While pursuing Bishop, Charette ordered Bishop to stop “messing” with the camera, but Bishop continued to do so. Bishop was subsequently detained by law enforcement officers, identified by the victim, and arrested. No images of Bishop’s molestation of the victim were recovered from the video camera. On the date of the aforedescribed events in question, Bishop was sixty-one years old.

On appeal, Bishop first contends that the trial court erred in denying his motion for judgment of acquittal on the kidnapping charge. Bishop argues that the State’s evidence failed to establish that the victim was forcibly (or by threat of force) confined or restrained by Bishop and, furthermore, that any movement of the victim by Bishop was only incidental to or inherent in the additional charged offenses. We reject these arguments.

The term “kidnapping” means “forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority” with the intent, inter alia, to commit or facilitate the commission of a felony. § 787.01(1)(a)2., Fla. Stat. (2006) (emphasis added). The term “secretly,” as used in the kidnapping statute, means that the abduction or confinement is intended by the defendant to isolate or insulate the intended victim from meaningful contact or meaningful communication

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with the public. Robinson v. State, 462 So. 2d 471, 476 (Fla. 1st DCA 1984). It is not necessary that the movement of the victim be by force or threat of force. Id. Here, the State’s evidence was sufficient to establish that Bishop secretly abducted or confined the victim. He led the child to a secluded location, out of the view of those persons in or near the hotel’s pool, so as to isolate her from meaningful contact with the public. When, as in the present case, the victim is under the age of thirteen, the “against her or his will” element is met if the confinement is without the consent of the child’s parent or legal guardian. § 787.01(1)(b), Fla. Stat. (2006). Here, the victim’s father testified that Bishop did not have his permission to take his daughter.

Bishop’s contention that the evidence was insufficient to support a kidnapping conviction, pursuant to Faison v. State, 426 So. 2d 963 (Fla. 1983), also fails. In Faison, the Florida Supreme Court adopted a three-prong test to determine whether movement or confinement during the commission of another felony is sufficient to support an additional conviction for kidnapping. For a kidnapping conviction to stand, the resulting movement or confinement: 1) must not be slight, inconsequential, and merely incidental to the other offense; 2) must not be of the kind inherent in the nature of the other offense; and 3) must have some significance independent of the other offense in that it makes the other offense substantially easier to commit or substantially lessens the risk of detection. Id. at 965. In the instant case, the State’s evidence satisfied the requirements set forth in Faison. Bishop’s luring of the child away from a busy hotel pool area to a secluded wooded area behind a storage shed was not slight or inconsequential, was not inherent in the commission of lewd or lascivious acts against the child, and was clearly intended to lessen the risk of detection. See also Kent v.

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State, 702 So. 2d 265 (Fla. 5th DCA 1997) (movement of victim from her front door to her bedroom where sexual battery occurred was sufficient to support conviction for kidnapping; movement was not slight nor merely incidental to sexual battery, was not inherent in crime of sexual battery, and made crime of sexual battery substantially easier to commit or lessened risk of detection given that front door had been broken).

Bishop also challenges the denial of his motion for judgment of acquittal on the use of a child in a sexual performance charge. Section 827.071, Florida Statutes (2006), prohibits an individual from employing, authorizing, or inducing a child less than eighteen years of age to engage in a sexual performance. “Sexual performance” means any performance or part thereof which includes sexual conduct by a child of less than eighteen years of age. § 827.071(1)(h), Fla. Stat. (2006). “Performance” means “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” § 827.071(1)(b), Fla. Stat. (2006).

Bishop argued below that the State had failed to establish that any images of the child had been captured by his video camera. The trial court properly rejected this argument. David Silva testified that Bishop pointed the video camera at the lower part of the victim’s body while he rubbed her genital area, the victim testified that the video camera appeared to be on, and Bishop was observed pressing various buttons on the video camera as he tried to flee the scene. There was sufficient evidence for the jury to conclude that Bishop had videotaped the sexual conduct with the victim and had then deleted the images from his camera.

Bishop also contends that to obtain a conviction for using a child in a sexual performance, there must be evidence that the performance was exhibited before an

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audience. Florida courts have uniformly construed section 827.071 to permit a conviction even where the video tape of the child’s engagement in sexual conduct is not shown to third persons. See Ladd v. State, 715 So. 2d 1012 (Fla. 1st DCA 1988) (making of motion picture or video tape that involves sexual conduct by child less than eighteen years of age is in and of itself sufficient to constitute performance); see also Killian v. State, 761 So. 2d 1210 (Fla. 2d DCA 2000); Schmitt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990), approved in part, quashed in part, on other grounds, 590 So. 2d 404 (Fla. 1991); Firkey v. State, 557 So. 2d 582, 584 (Fla. 4th DCA 1989) (“we are confident that the legislature did not intend that the creator of such a motion picture… should escape prosecution because he had not, as yet, had the time to exhibit his vile handiwork.”), disapproved on other grounds, Wilson v. State, 635 So. 2d 16 (Fla. 1994). The statute, contrary to Bishop’s suggestion, does not require that the sexual performance be exhibited to third persons. An “audience” can consist of a single individual and that individual can be the defendant. State v. George, 717 S.W. 2d 857 (Mo. Ct. App. 1986) (defendant guilty of using child in sexual performance even where defendant was only member of audience); see also State v. Dube, Nos. C1-01-1432, C3-01-1433, 2002 WL 1611116 (Minn. Ct. App. July 17, 2002).

Bishop next contends that double jeopardy principles prevent him from being adjudicated guilty of lewd or lascivious molestation or lewd or lascivious conduct, where the acts supporting these adjudications were also used to enhance his kidnapping conviction from a first degree felony to a life felony. We disagree. Section 787.01(3)(a), Florida Statutes (2006) provides that it is a life felony to kidnap a child under the age of thirteen when, in the course of committing the offense, the defendant commits:

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3. Lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition in violation of s. 800.04.

Significantly, section 787.01(3)(b) provides that “nothing contained herein shall be construed to prohibit the imposition of separate judgments and sentences for the life felony described in paragraph (a) and for each separate offense enumerated in subparagraphs (a)1-5.”

Recently, the Florida Supreme Court reaffirmed that legislative intent is the polestar that guides the analysis in resolving double jeopardy issues. Valdes v. State, 3 So. 3d 1067 (Fla. 2009). The constitutional protection found in the United States Constitution⁶ and the Florida Constitution⁷ do not prohibit multiple punishments for different offenses arising out of the same criminal transaction as long as the legislature intended to provide separate punishments. Id. at 1069. As the United States Supreme Court explained in Brown v. Ohio, 432 U.S. 161, 165 (1971), the double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the double jeopardy clause to define crimes and to fix punishments. Where multiple punishments are imposed at a single trial, “the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Id.

Significantly, in Missouri v. Hunter, 459 U.S. 359 (1983), the United States Supreme Court stated that where a legislature specifically authorizes cumulative

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punishments under two statutes, regardless of whether those two statutes proscribe the “same” conduct under the Blockburger⁸ test, the trial court may impose cumulative punishments pursuant to those statutes. Hunter involved the construction of a Missouri statute⁹ that made it a separate criminal offense to commit a felony with the use of a dangerous or deadly weapon. The statute further provided that the punishment imposed for such crime would be in addition to any punishment provided by law for the commission of the underlying felony. Based on a single criminal transaction, appellant was convicted, after trial, of armed criminal action and armed robbery. The United States Supreme Court accepted the Missouri Supreme Court’s conclusions that 1) the two statutes at issue defined the same crime; and 2) the legislature intended that punishment for violation of the statutes be cumulative. The United States Supreme Court then upheld the dual convictions, concluding “that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.” Id. at 368. The Hunter

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court further observed that legislatures, not courts, prescribe the scope of punishments and that the Missouri legislature had made its intent crystal clear. Id.

In the instant case, as in Hunter, the Legislature has made its intent crystal clear. An individual who kidnaps a child under the age of thirteen and who, in the course of the kidnapping, commits a lewd or lascivious act against the child may be adjudicated guilty of the lewd or lascivious act in addition to receiving a life felony sentence on the kidnapping offense.¹⁰

We do agree, however, with Bishop’s argument that double jeopardy principles preclude his conviction for both lewd or lascivious molestation and lewd or lascivious conduct. The lewd or lascivious molestation charge was based on Bishop’s act of touching the victim’s genital area while the lewd or lascivious conduct charge was based on Bishop’s act of touching the victim’s leg. The evidence reflected that the rubbing of the victim’s genital area and her leg occurred during a single continuous act. There was no testimony of a spatial or temporal break between the touchings. Accordingly, dual convictions were improper. J.M. v. State, 4 So. 3d 703 (Fla. 5th DCA 2009); see also

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Danestan v. State, 939 So. 2d 1132 (Fla. 4th DCA 2006). On remand, the trial court shall vacate Bishop’s conviction for lewd or lascivious conduct.

AFFIRMED, in part; REVERSED, in part; REMANDED.

JACOBUS, J., concur.

COHEN, J., concurs and concurs specially with opinion.

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COHEN, J., concurring specially.

I agree that Bishop’s conviction for use of a child in a sexual performance under section 827.071(2), Florida Statutes (2006), should be affirmed. Performance is defined under section 827.071(1)(b) as “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” My reading of that statute is not dependent upon whether the undefined term “audience,” can consist of a single participant. Instead, I would find the phrase “exhibited before an audience,” only modifies “any other visual representation.” Because Bishop’s attempt to create a videotape falls within either the motion picture or photograph category, there is no statutory requirement that it be exhibited before an audience.

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William R. Ponall, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Orange County, Marc L. Lubet, Judge.

ON MOTION FOR REHEARING AND WRITTEN OPINION

GRIFFIN, J.

The judgment and sentence in this case were initially affirmed by this Court without a written opinion. Appellant has filed a motion for rehearing and a request for a written opinion. We deny the motion for rehearing because we remain convinced that the trial court committed no reversible error; however, we withdraw the previously issued affirmance and grant the motion for a written opinion.

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Cedric Frasilus was indicted by a grand jury for the first degree murder of Demetrick Smith ["Mr. Smith"] on January 13, 2008, and was convicted after a trial. The issue about which Appellant seeks a written opinion arose during jury deliberations.

After the jury retired to deliberate, they returned with a question: “When was the picture taken on the Department of Highway and Safety? What date, the issue date or duplicate? Signed…., Foreperson.” This question related to the identification of Appellant as the assailant. One of the surviving victims said the assailant wore dreadlocks under a “hoodie.” Appellant claimed that he had not worn dreadlocks for four years and, that on the date of the homicide, he was bald. In his testimony, he claimed the photograph on his driver’s license, showing him with no hair, was taken the month before the crime. After reading the jury’s question, the trial judge said he could not tell the jury the date the photograph was taken, so he would send the following note back to the jury: “You will have to use your best recollection of the evidence. You have received all the evidence we can give you.” The court asked counsel if that was acceptable, and both Appellant and the State agreed. Now, on appeal, Appellant contends the trial court committed fundamental error by failing to inform the jury that it was entitled to a read-back of portions of the testimony.

The State’s position is that the jury never asked for any testimony to be read back to them, and the trial court’s response to their factual question was proper. Florida Rule of Criminal Procedure 3.410 provides that a trial court may, in its discretion, allow portions of the trial testimony to be read back to the jury upon their request. A trial court’s discretion over whether to allow a read-back of testimony is wide. Kelley v. State, 486 So. 2d 578, 583 (Fla. 1986). See also Avila v. State, 781 So. 2d 413, 415

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(Fla. 4th DCA 2001). In fact, the Florida Supreme Court has observed that “courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury’s request for a read back.” Francis v. State, 808 So. 2d 110, 130 (Fla. 2001) (citing McKee v. State, 712 So. 2d 837, 838 (Fla. 2d DCA 1998)).

As late as 2007, the Florida Supreme Court has addressed the question of testimony read-back during jury deliberations. In Re Amendments to The Florida Rules of Civil Procedure, The Florida Rules of Criminal Procedure, The Standard Jury Instructions in Civil Cases and The Standard Jury Instructions in Criminal Cases-Implementation of Jury Innovations Committee Recommendations, 967 So. 2d 178, 183 (Fla. 2007). The Jury Innovations Committee had recommended that the court develop criteria for denying a read-back request. The court declined the invitation, saying: “We conclude that trial judges should have broad discretion in denying read-back requests.” It did, however, authorize Standard Criminal Instruction 4.4, which provides a suggested format for addressing jury read-back requests. In the same opinion, the supreme court authorized Standard Criminal Instruction 4.3, a procedure for addressing jurors’ questions.¹

Despite the wide latitude a trial court is accorded in exercising its discretion whether to read back testimony, some courts have said that a trial court “may not mislead the jury into thinking that a readback is prohibited.” Avila, 781 So. 2d at 415.

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Such an error is often deemed harmless, however. See Johnson v. State, 10 So. 3d 680, 681 (Fla. 3d DCA 2009).

The Fourth District Court of Appeal has taken an expansive view of what constitutes a “misleading” of the jury. In Avila, the jury informed the court “that it needed to review the timing of specific events set forth by the testimonies of four named alibi witnesses.” 781 So. 2d at 414. The trial judge told the jury that although the court reporter took “down the trial in shorthand notes,” there were “no printed transcripts” to “submit back to you.” Id. at 415. The Fourth District concluded that the trial judge abused his discretion by failing to tell the jury about the potential availability of a read back:

While the trial court has the discretion to deny a jury’s request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited. In this case, the jury clearly sought a readback of specific testimony. The trial court, however, without mentioning that a method of readback was available, informed the jury that there were no transcripts and that the jury members should rely upon their collective recollection. Because such a statement may have confused the jury as to whether a readback of testimony was permissible, we conclude that the trial court abused its discretion.

Id. at 415-16 (citations omitted).

In Hazuri v. State, 23 So. 3d 857 (Fla. 3d DCA 2009), the Third District took a different approach. There, the jury sent a note to the court requesting trial transcripts. Id. at 857. The trial court informed the prosecutor and defense counsel that it believed “the accurate and correct response is that they must rely on their own collective recollection of the evidence.” Id. at 858. Defense counsel objected based on the failure of the suggested instruction to inform the jury of the availability of a read-back. Id. The

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trial court overruled the objection and instructed the jury as it had announced it would. Id. On appeal, the Third District held that the instruction was “fair and legally accurate” and that the trial court was under no obligation, in response to the request for transcripts, to inform the jury that a read-back may be available upon request. Id. at 858-59.

The Appellant makes much of Judge Cope’s dissenting opinion in Hazuri, where he said:

The majority opinion finds dispositive the fact that the jury note asked for transcripts. According to the majority, since no transcripts were in existence, it follows that the question could be answered with a simple “no.”

The majority opinion overlooks the fact that jurors are composed of lay persons. If they knew the technical details of the law, then they would have written a better note. But the substance of the question was whether the jury could review the testimony. Defense counsel quite properly said that under rule 3. 410, a jury may request to have “testimony read to them,” and the court may so order.

Id. at 861 (Cope, J., dissenting). We need not decide whether a request for a transcript ipso facto gives rise to a duty on the part of a trial judge to inform the jurors of their right to request a read-back because our case is different. The jury did not ask to review a transcript or examine testimony; it asked for an answer to a fact question.

The Fourth District recently rejected the Third District’s view in Barrow v. State, 27 So. 3d 211 (Fla. 4th DCA 2010). There, as in Hazuri, the jury requested to view the trial transcript. 27 So. 3d at 215. Both the prosecutor and defense counsel suggested that the court advise the jury of its right to request a read-back. Id. at 216. The court, however, refused to give such an instruction, and instead told the jury, “There are no transcripts available for your review. Please rely on the evidence presented during the

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proceedings.” Id. The Fourth District held that this instruction was misleading and, thus, constituted reversible error. Id. The Barrow court also certified conflict with Hazuri.

The Barrow court relied, in part, on this court’s decision in Roper v. State, 608 So. 2d 533, 534 (Fla. 5th DCA 1992), where the trial court had responded to a jury’s request to “see” certain testimony by informing the jury, over defense counsel’s objection, that there was nothing to “see,” as no transcript was available. See Barrow, 27 So. 3d 217. This Court said that the trial court’s response was too narrow and that it was error to refuse even to consider defense counsel’s request:

The trial judge here narrowly focused upon the word “see” (as distinguished from “hear”) in the jury’s request and deftly side-stepped the problem. As we see it, he employed a semantic shell game effectively negating an option allowed the jury under Rule 3.410. At the very least, the trial judge should have apprised the jury that a method was available to have the cross-examination, or specific portions of it, read to them. Then, if the jury requested it, the trial court could have weighed that request in light of any applicable considerations.

Id. at 535. The Roper court did not suggest, however, that a jury’s fact question gives rise to a duty to inform the jury that it may request a read-back of any relevant testimony.

Even if a court’s failure to inform the jury of their right to request a read-back in a case such as this were error, it is hard to conceive that it would be fundamental error. Davis v. State, 760 So. 2d 977, 978 (Fla. 3d DCA 2000); Farrow v. State, 573 So. 2d 161, 162-63 (Fla. 4th DCA 1990). We are aware of only one Florida case, LaMonte v. State, 145 So. 2d 889 (Fla. 1st DCA 1962), in which the court’s failure to advise the jury of the right to a read-back was held to be fundamental error.

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LaMonte is the case on which Appellant principally relies. In LaMonte, the evidence against the defendant was entirely circumstantial. No testimony by any witness put the defendant at the place of the robbery. During deliberations, the jury asked two questions: “whether the rubber mask was found on the floor of the closet or whether it was found in the attic; and whether there was a rear door as well as a side and front door to the home of the defendant.” Id. at 892. The jury requested that the testimony on those matters be read back or that the court supply the answers. The court responded by informing the jury that it was not able to comment on the evidence and could not tell the jury what was in the record and what was not in the record. Defense counsel did not object. The First District concluded that the jury’s question pertained to a material issue that could have been resolved by reading testimony to the jury, and the failure of the trial court to have the testimony read to the jury was fundamental error.

The LaMonte decision may be explained in part by reference to the state of the law in 1962. The LaMonte jury had expressly requested a read-back of testimony and the court made note of the fact that the applicable statute at the time, section 919.05, Florida Statutes, by its express terms, made a read-back mandatory, upon the jury’s request, although case law had construed the statute to vest discretion in the trial court. In 1970, section 919.05 was repealed in light of the adoption in 1967 of the Florida Rules of Criminal Procedure and was superseded by rule 3.410. In 1972, the rule was revised to eliminate the mandatory language. The committee note says the purpose of the change was to make the rule discretionary. In re Florida Rules of Criminal Procedure, 272 So. 2d 65, 116 (Fla. 1972).

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We do not think it is either necessary or desirable to impose a requirement on the trial court to inform the jury of its right to request a read-back in response to any question from the jury concerning an issue of fact that may have been the subject of testimony somewhere during the course of trial. Nor would such a requirement take into account that a defendant’s failure to request a read-back in such a circumstance might well be strategic. Because a trial court is not required to accede to a jury’s request for a read-back of evidence it has already heard, it is difficult to imagine circumstances under which a trial court’s failure to advise the jury of its right to request a read-back could vitiate the fairness of the entire trial.

Most recently, in Hendricks v. State, 34 So. 3d 819 (Fla. 1st DCA 2010), the First District disagreed with LaMonte and determined that no fundamental error occurred in their case, despite the lower court’s arguably misleading failure to advise of the availability of a read-back in response to a request to view the transcript of certain testimony. The district court pointed out that the decision whether to request a readback could well be strategic and that the application of fundamental error in this context would encourage “gamesmanship.” Id. at 831.

Here, after hearing the jury’s question, the trial court advised the jury to rely on its collective recollection of the evidence it had already heard to make its decision. The jury arrived at a unanimous verdict, suggesting that the jury was able to discuss the matter and resolve their factual question. Appellant has attempted to construct an evidentiary scenario analogous to LaMonte in which the date of the photograph is of transcendental importance in an otherwise evidence-starved prosecution. But that is not true of this case. Moreover, even if the date of the photograph were established on

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the record to be consistent with Appellant’s testimony, it does not establish Appellant’s appearance on the date of the crime. It cannot be said in this case that the trial court’s failure to offer a read-back of any trial testimony that may have pertained to Appellant’s photograph vitiated the fairness of the entire trial.

AFFIRMED.

ORFINGER and COHEN, JJ., concur.

——–

Bernard Sloss, Daytona Beach, pro se.

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

3.850 Appeal from the Circuit Court for Volusia County, Patrick G. Kennedy, Judge.

EVANDER, J.

Sloss appeals from the summary denial of his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged that his trial counsel was ineffective by failing to object to the trial court giving the forcible felony exception instruction when he was only charged with a single offense–aggravated battery. The trial court concluded that Sloss suffered no prejudice. We reverse.

This is Sloss’ third appearance before this court. On Sloss’ direct appeal, this court held that the erroneous giving of the forcible felony exception instruction

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constituted fundamental error. Sloss v. State, 965 So. 2d 1204 (Fla. 5th DCA 2007), quashed, 1 So. 3d 164 (Fla. 2009). Subsequently, in Martinez v. State, 981 So. 2d 449 (Fla. 2008), the Florida Supreme Court held that although it was error to give such instruction where the defendant was not charged with a forcible felony independent of the crime for which he was claiming self-defense, it was not fundamental error. Based on the decision in Martinez, the Florida Supreme Court then quashed this court’s initial opinion. Sloss v. State, 1 So. 3d 164 (Fla. 2009). On remand from the Florida Supreme Court, this court affirmed Sloss’ conviction and sentence. Sloss v. State, 16 So. 3d 873 (Fla. 5th DCA 2009).

The charge against Sloss arose from a confrontation between Sloss and two of his apartment complex neighbors, McKinney Milsap (the alleged victim) and Frank Milsap (McKinney’s nephew). Two conflicting versions of the confrontation were presented to the jury.

According to McKinney and Frank, Sloss was angry because McKinney had complained to the landlord about the volume of the music emanating from Sloss’ apartment. Sloss cursed at McKinney before going to his car to retrieve a knife. Sloss then cut McKinney’s thigh with a knife, instigating a physical fight in which Sloss stabbed McKinney several times. Frank heard the altercation, rushed to the scene, and tried to assist his uncle. After being cut three times by Sloss, Frank went into his apartment and retrieved a knife. Frank returned to the scene and cut Sloss’ hand, forcing Sloss to drop his knife.

Sloss’ version of these events was decidedly different. He testified that he was looking under his car’s hood when McKinney hit him in the back with a chair. McKinney

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then struck him three more times. When Sloss saw Frank come out of his apartment with a knife, Sloss then pulled out his own knife. He stabbed McKinney in self-defense.

In its charge to the jury, the trial court gave the following instruction:

A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the imminent commission of aggravated battery. However, the use of force likely to cause death or great bodily harm is not justifiable if you find [Sloss] was attempting to commit, committing, or escaping after the commission of aggravated battery, or [Sloss] initially provoked the use of force against himself unless the force asserted towards the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm, and had exhausted every reasonable means to escape the danger….

(Emphasis added). Sloss’ counsel failed to object to this instruction.

The standard by which we determine whether a defendant is entitled to relief based on an assertion of ineffective assistance of trial counsel derives from Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a defendant to prove two elements: 1) that counsel’s representation was so deficient as to fall below an objective standard of reasonableness; and 2) that the deficient performance prejudiced the defendant. Id. at 687-88. In order to establish prejudice, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

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. Martinez, 981 So. 2d at 452. When an instruction is read

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in the absence of a charge of an independent forcible felony, it essentially negates the defendant’s theory of self-defense.

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.

Id. at 453.

Stoute v. State, 987 So. 2d 748 (Fla. 4th DCA 2008) and Sipple v. State, 972 So. 2d 912 (Fla. 5th DCA 2007) are instructive in discussing the analysis of the “prejudice” prong in the context of a Rule 3.850 motion, where trial counsel failed to object to a forcible felony exception instruction being given, and self-defense was the defendant’s only theory of innocence.

In Stoute, the defendant was convicted of second degree murder. During the months prior to the fatal incident, there had been physical altercations between the defendant and the victim. The defendant’s defense was that the victim had been threatening him with a gun because the defendant had failed to repay a debt. According to the defendant, when he went to the victim’s house to repay the money, the victim pulled out a gun and the defendant then shot the victim in self-defense. The Stoute court found that not only was counsel deficient in failing to object to the forcible felony execution instruction, but also that the deficient performance prejudiced the defendant by negating his only defense. Stoute was granted a new trial.

In Sipple, the defendant was convicted of manslaughter with a firearm. Although Sipple did not testify at trial, he had given a statement to the police which was admitted into evidence. In his statement, Sipple described how he had become “embroiled in a

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life-and-death struggle” with the victim prior to shooting her in self-defense. After determining that trial counsel had been ineffective in failing to object to the reading of the forcible felony exception instruction, we then concluded that counsel’s omission had prejudiced the defendant. In doing so, we observed that once Sipple had presented a prima facie case of self-defense, the State was required to prove beyond a reasonable doubt that he did not act in self-defense. Thus, trial counsel’s failure to object to the erroneous instruction not only negated Sipple’s only defense, but also essentially relieved the State of its burden of proving beyond a reasonable doubt that Sipple did not act in self-defense. As in Stoute, the defendant was granted a new trial.

The trial court below found that the facts of the instant case to be more similar to Martinez and Barnes v. State, 12 So. 3d 797 (Fla. 5th DCA 2009), than to Stoute. We respectfully disagree. In Martinez and Barnes, the evidence against the defendant was overwhelming and the self-defense claims were implausible.¹ Here, the evidence was hardly overwhelming. A jury could reasonably view this case as a “swearing contest” between Sloss on the one side, and the alleged victim and his nephew on the other. The fact that the alleged victim’s injuries were far more significant than those of Sloss

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does not compel a conclusion that Sloss could not have been acting in self-defense. We believe that had the jury not been given the improper forcible felony exception instruction, there is a reasonable probability that Sloss would have been acquitted.

REVERSED for a new trial.²

TORPY and JACOBUS, JJ., concur.

——–

James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.

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

Appeal from the Circuit Court for Orange County, Bob Leblanc, Judge.

EN BANC

PALMER, J.

Andre Isaiah Dunbar (defendant) appeals his judgments and sentences which were entered by the trial court after a jury found him guilty of committing the crimes of robbery with a firearm¹, two counts of aggravated assault with a firearm², and grand theft.³ The defendant asserts, among other things, that his 10-year mandatory minimum

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sentence for robbery with a firearm must be stricken because the imposition of a mandatory minimum sentence was not orally pronounced by the trial court at sentencing. We disagree and affirm.

No dispute exists between the parties concerning the underlying facts in this appeal. The trial court’s oral pronouncement of the defendant’s sentence was inconsistent with the court’s written sentencing order entered later that day: the trial court did not orally pronounce the imposition of a mandatory minimum sentence, but the defendant’s written sentencing documents state that the defendant must serve a 10-year mandatory minimum on the robbery count.

The imposition of a mandatory minimum sentence under section 775.087(2) of the Florida Statutes is a nondiscretionary duty of a trial court when the record indicates that the defendant qualifies for mandatory minimum sentencing. A trial court must impose the mandatory minimum sentence once a defendant is convicted of an enumerated felony under section 775.087(2), and the failure to do so is reversible error. See Grant v. State, 770 So.2d 655, 658-660 (Fla. 2000); see also State v. Couch, 896 So.2d 799, 800 (Fla. 1st DCA 2005); State v. Parker, 812 So.2d 495, 497 (Fla. 4th DCA 2002). Courts have reversed and remanded sentencing orders with instructions requiring the imposition of the mandatory minimum sentence when the trial court departed from the mandatory minimum sentencing requirement. See State v. Scanes, 973 So.2d 659 (Fla. 2d DCA 2008); State v. Couch, 896 So.2d at 799; State v. CalzadaPadron, 708 So.2d 287 (Fla. 2d DCA 1996); State v. Brendell, 656 So.2d 594 (Fla. 5th DCA 1995); State v. Boykins, 647 So.2d 891 (Fla. 2d DCA 1994); State v. Ross, 447 So.2d 1380 (Fla. 4th DCA 1984).

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In Allen v. State, 853 So.2d 533 (Fla. 5th DCA 2003), our court held that when an oral sentence does not include the applicable mandatory minimum sentence it is an illegal sentence and, accordingly, subject to correction. In that case, the defendant was sentenced to a term of twenty years’ incarceration which included a 3-year mandatory minimum sentence under section 775.087(2) of the Florida Statutes (2000). After the defendant’s conviction was affirmed on appeal, the defendant moved to modify his sentence. The trial court denied the motion but corrected the defendant’s sentence by imposing a 10-year mandatory minimum sentence after concluding that the defendant should have received a 10-year, rather than a 3-year, mandatory minimum sentence. On appeal, we affirmed the trial court’s correction, reasoning that the sentence was subject to correction because it was illegal. We further noted:

It does not offend double jeopardy principles to resentence a defendant to harsher terms when the original sentence was invalid….

]d at 536. See also State v. Scanes, 973 So.2d 659, 661 (Fla. 2d DCA 2008); State v. Strazdins, 890 So.2d 334, 334 (Fla. 2d DCA 2004). Allen is consistent with case law interpreting mandatory minimum sentencing statutes and the legislative intent behind enacting such laws. State v. Haddad, 750 So.2d 139, 140 (Fla. 1st DCA 2000).

We recognize that this court has issued at least one opinion which appears to conflict with Allen; namely, Salyer v. State, 951 So.2d 68 (Fla. 5th DCA 2007). In Salyer, our court reversed the defendant’s sentence with instructions to strike the 3-year mandatory minimum sentence, explaining:

The sentence orally pronounced by the trial judge in case no. 04-291 did not include the three-year minimum mandatory term ordinarily applicable due to possession of a firearm. However, the sentencing documents, which

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imposed a thirty-seven month prison sentence, included the three-year minimum mandatory term. Oral pronouncements of sentence control over the written sentencing document.

Id. at 68-69 (citations omitted). However, Salyerfailed to cite or distinguish Allen.

We conclude that Salyer is inconsistent with the legislative intent behind restricting the sentencing discretion of trial courts for certain enumerated crimes with mandatory minimum penalties and creates a potential loophole which could allow a trial court to avoid the imposition of a mandatory minimum sentence by simply failing to announce the mandatory minimum provision at sentencing. Accordingly, we recede from Salyer and reaffirm the law as set forth in Allen.

AFFIRMED.

MONACO, C.J., GRIFFIN, SAWAYA, ORFINGER, TORPY, LAWSON, EVANDER, COHEN, and JACOBUS, JJ., concur.

——–

Giovanna S. Walker, Lisbon, pro se.

Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Orange County, Jose R. Rodriguez, Judge.

LAWSON, J.,

Giovanna Sinquin Walker appeals from an order denying his petition for writ of habeas corpus, which sought dismissal of a 2009 information charging him with purchase of cannabis. Walker is serving a federal prison sentence in Ohio, and acknowledges that Florida’s speedy trial rule does not afford him any relief.¹ However,

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Walker alleges that he is entitled to relief under the speedy trial provision in the United States and Florida Constitutions, and under the Interstate Agreement on Detainers Act (“IADA”), section 941.45, Florida Statutes, and 18 U.S.C. Appendix.² We affirm.

With respect to Walker’s IADA claim, the trial court found that Walker had “not yet filed the documents required to trigger the provisions of this act.” Walker has not demonstrated any error in this ruling. Powers v. Powers, 831 So. 2d 724, 724 (Fla. 5th DCA 2002) (“An appellant has the burden to bring forward a record adequate to demonstrate reversible error because we presume the decision of a trial court to be correct.”) (citations omitted). Additionally, we note that “IADA violations are uncognizable in habeas proceedings, absent a showing that the violation prejudiced the rights of the accused by ‘affect[ing] or impugn[ing] the integrity of the fact finding process’ at trial.” Hunter v. Samples, 15 F. 3d 1011, 1012 (11th Cir. 1994) (quoting Seymore v. Alabama, 846 F. 2d 1355, 1359 (11th Cir. 1988), cert. denied, 488 U.S. 1018 (1989)).

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Walker has also failed to demonstrate any error in the trial court’s handling of his speedy trial argument. “[T]he determination of whether a person has been deprived of his constitutional right to a speedy trial depends in large part upon the consideration of four elements: (1) length of delay, (2) reason for delay, (3) whether the defendant asserted his right to be tried speedily, and (4) prejudice to the defendant caused by the delay.” State v. Blankenship, 422 So. 2d 1059, 1060 (Fla. 2d DCA 1982) (citing Barker v. Wingo, 407 U.S. 514 (1972)). Walker’s filing with the trial court addressed only the first element, length of delay. As such, he could not establish a constitutional speedy trial violation. Id. We also note that the IADA provides a method through which Walker can secure a timely resolution of the charges against him. See § 941.45, Fla. Stat. (2009) (IADA, Art. III(a)) (requiring that a prisoner be brought to trial within 180 days after submitting a proper request for disposition under the IADA). If the reason for delay in this case is Walker’s own failure to follow the procedure set forth in the IADA, we fail to see how Walker could establish a constitutional speedy trial violation.

AFFIRMED.

EVANDER and COHEN, JJ., concur.

——–

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General and Natalia Costea, Assistant Attorney General, for appellee.

An Appeal from the Circuit Court for Miami-Dade County, Julio E. Jimenez, Judge.

Before COPE, GERSTEN and WELLS, JJ.

COPE, J.

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The question in this appeal is whether Antwyne Harper was convicted of an offense which was barred by the statute of limitations. We conclude that the answer is yes.

Defendant-appellant Harper was charged with committing multiple offenses on December 24, 2003. One of these was the offense of resisting an officer with violence to his person in violation of section 843.01, Florida Statutes (2003). The original information was filed on January 14, 2004 and was well within the statute of limitations.

On May 1, 2007, the State filed an amended information which added the new charge of fleeing or attempting to elude a law enforcement officer at high speed, in violation of subsection 316.1935(3), Florida Statutes (2003).¹ Both sides agree that the applicable statute of limitations is three years. § 775.15(2)(b), Fla. Stat. (2003). Because the crime date was December 24, 2003, and the fleeing and eluding charge was not filed until 2007, the fleeing and eluding charge was filed beyond the limitation period. The defense did not move to dismiss the fleeing and eluding charge on the basis of the statute of limitations. The defendant was convicted of fleeing and eluding and was acquitted on all other charges. The

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defendant has appealed, arguing that the charge of fleeing and eluding is timebarred.

The State argues that the new fleeing and eluding charge was timely. The State invokes the principle that “subsequently-filed informations ‘will not be subject to the statute of limitations when they are shown to be connected with and in continuation of a prosecution timely begun.’ State v. Adjmi, 170 So. 2d 340, 343 (Fla. 3d DCA 1964) (citing Mead v. State, 101 So. 2d 373 (Fla. 1958)).” State v. Douglas 919 So. 2d 481, 482 (Fla. 3d DCA 2005). The rule just stated is subject to the qualification that the amended charge cannot “broaden or substantially amend the original charges.” Labrador v. State, 13 So. 3d 1070, 1072 (Fla. 3d DCA 2007) (internal quotations marks omitted) (quoting United States v. Italiano, 894 F.2d 1280, 1282 (11th Cir. 1990)).

We conclude that the “continuation” principle is not applicable here. The offense of resisting an officer with violence and the offense of fleeing and eluding an officer at high speed contain no elements in common. The offense of fleeing and eluding is not a lesser included offense of resisting an officer with violence. The text of the 2004 charge of resisting an officer with violence did not contain any factual allegations asserting that the defendant fled or attempted to elude the officer by driving at a high rate of speed, or any other factual allegations which would constitute the offense of fleeing and eluding. Under these circumstances,

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the new charge alleged “a new and distinct crime with different elements, under a completely different statute.” Labrador, 13 So. 3d at 1072. The new charge broadens and substantially amends the original charge. Id The new charge was time-barred.

The next question is whether we can consider the statute of limitations issue in this appeal. As already stated, the defense did not raise the issue of the statute of limitations when the case was pending in the trial court. In Fondon v. State, 581 So. 2d 188 (Fla. 3d DCA 1991), this court held that a defendant must raise a statute of limitations issue in the trial court before it can be raised as an issue on appeal. Id. at 189. We held that such an issue is appropriately raised by motion for postconviction relief. Id.

Under the circumstances of the present case, however, we conclude that we can and should consider this issue as being one of the rare instances in which ineffective assistance of trial counsel appears on the face of the record. See Smith v. State, 998 So. 2d 516, 522-23 (Fla. 2008) (“We recognize that ‘[t]here are rare exceptions where appellate counsel may successfully raise the issue on direct appeal because the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.’”), cert. denied, 129 S. Ct. 2006 (2009).

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In this case we are unable to perceive, and the State has not suggested, any legitimate tactical reason for trial counsel to fail to raise the defense of the statute of limitations. The State requested an opportunity to determine whether it had a good faith basis to assert that any exception to the statute of limitations applies in this case. See § 775.15(5)-(7), Fla. Stat. (2003). The State responded that it has no such basis.

We therefore vacate the defendant’s conviction for fleeing and eluding and discharge the defendant from the cause. The defendant is entitled to immediate release. This ruling is effective immediately and will not be delayed by the filing of a motion for rehearing or other postdecision motion.²

Vacated.

——–

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

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellee.

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

Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge.

SILBERMAN, Judge.

The State seeks review of the downward departure sentences the trial court imposed against James A. Reith for seven sale and possession charges arising from four different transactions in August, September, and October 2007. The State

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argues that Reith failed to present competent, substantial evidence to support the departure. We agree and reverse.

Although Reith’s scoresheet reflected a minimum sentence of 16.5 months’ incarceration, the trial court imposed concurrent sentences of four years of drug offender probation with a special condition of eight months in county jail for each of the charged offenses in exchange for Reith’s guilty plea. Over the State’s objection, the court found that the downward departure was warranted because Reith was a minor participant in the offenses and the charged crimes were committed in an unsophisticated manner and were isolated incidents. These findings would support a downward departure sentence under section 921.0026(2)(b) and (j), Florida Statutes (2007), if they were supported by competent, substantial evidence. See Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999).

However, Reith failed to present any evidence to support the downward departure. Instead, the court erroneously relied on the unsworn assertions of defense counsel. See State v. Champion, 898 So. 2d 1111, 1112 (Fla. 2d DCA 2005); State v. Walters, 12 So. 3d 298, 303 (Fla. 3d DCA 2009). We therefore reverse and remand with directions for the trial court to allow Reith to withdraw his plea because it was induced by the court’s representation that Reith would receive a downward departure sentence. See Champion, 898 So. 2d at 1112. If, after additional proceedings, Reith presents sufficient evidence in support of downward departure sentences, ¹ the court may again impose such sentences.

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Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.

——–

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

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.

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

Appeal from the Circuit Court for Pinellas County; Robert E. Beach, Senior Judge.

WHATLEY, Judge.

The State appeals the order granting Rachel Yutzy’s motion to suppress the prescription records obtained by Corporal Kanoski from several pharmacies during his investigation of allegations that Yutzy obtained a controlled substance from a physician by withholding information.

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In the order, the trial court ruled that the corporal’s actions contravened sections 395.3025(4)(d) and 456.057(7)(a)(3), Florida Statutes (2007), and constituted an unreasonable search under the Fourth Amendment that violated Yutzy’s reasonable expectation of privacy in her pharmaceutical records. At the time of the hearing on Yutzy’s motion to suppress, the trial court did not have the benefit of our recent opinion that is directly on point, State v. Tamulonis, 35 Fla. L. Weekly D1535 (Fla. 2d DCA July 9, 2010), or the First District’s decision in State v. Carter, 23 So. 3d 798 (Fla. 1st DCA 2009), which we relied upon in Tamulonis. Both of these opinions address all of the findings in the trial court’s order and mandate reversal.

In Tamulonis, this court held that neither section 395.3025(4)(d) (applying to licensed facilities, the definition of which does not include pharmacies) nor section 456.057(7)(a)(3) (regulating health care practitioners, the definition of which expressly excludes pharmacists) required law enforcement to obtain a subpoena before procuring a patient’s pharmacy records. Rather, section 893.07(4), Florida Statutes (2007), which requires pharmacists to maintain controlled substance records for at least two years “for inspection and copying by law enforcement officers,” provides the authority for law enforcement to obtain pharmacy records regarding controlled substances without a warrant or notification to the patient. Tamulonis, 35 Fla. L. Weekly at D1536; Carter, 23 So. 3d at 799. And because section 893.07(4) is narrowly tailored to effectuate the compelling state interest in regulating controlled substances, it does not violate Florida’s constitutional right to privacy. Art. I, § 23, Fla. Const. See Tamulonis, 35 Fla. L. Weekly at D1536.

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Accordingly, we reverse the order granting Yutzy’s motion to suppress and remand for further proceedings.

CASANUEVA, C.J., and KHOUZAM, J., Concur.